Scott Newson, R (on the application of) v The Secretary of State for Justice

A Secretary of State must give effect to a Parole Board direction releasing a life or IPP prisoner as soon as is reasonably practicable in all the circumstances, including the need to arrange licence conditions and support. The assessment is fact-specific. Relevant matters include the prisoner’s liberty, health, sentence, the complexity of the conditions, accommodation availability, the steps taken, and the adequacy of the Secretary of State’s systems.

Once the claimant raises a prima facie case of unreasonable delay and the relevant evidence is predominantly within the Secretary of State’s control, the Secretary of State must show what was done and why the delay was reasonable. Failure to maintain effective systems, supervise progress, escalate delay and provide candid evidence may render continued detention unlawful.

The claimant was serving an IPP sentence. On 28 February 2022 the Parole Board directed his release subject to a risk management plan, including supported accommodation and overnight residence at an address approved by his supervising officer.

The proposed accommodation later fell through. The claimant remained in custody while alternative accommodation and support were sought. He brought judicial review proceedings alleging unreasonable delay, unlawful detention and breach of article 5 of the European Convention on Human Rights.

The Secretary of State later undertook to release him by 16 November 2022 and withdrew an application to set aside the Parole Board’s decision. The remaining issues were whether permission should be granted and whether the claimant had been unlawfully detained by reason of the delay.

1. Permission and disposition. Permission was granted because the pleaded grounds were arguable. The Secretary of State’s undertaking settled the claim for immediate mandatory release. The court declared that the claimant should have been released by 31 July 2022 and that his detention from 1 August 2022 onwards was unlawful. Judgment was entered for damages for unlawful imprisonment and breach of article 5 rights, with quantum and costs reserved.
2. Statutory duty. Section 28(5) of the Crime (Sentences) Act 1997 imposes a duty to release a life prisoner once the relevant conditions are met and the Parole Board has directed release. Section 32ZB, in force from 28 June 2022, qualifies the timing of that duty: the Secretary of State must give effect to the direction as soon as reasonably practicable in all the circumstances, particularly the need to arrange licence conditions.
3. Relevant approach. The reasonableness of delay is fact-specific. Relevant factors included the length and nature of the sentence, the claimant’s mental and physical health, accommodation availability, staffing, steps taken, culpability for delay, accommodation withdrawals, the Secretary of State’s systems and policies, personal and geographical circumstances, and the complexity of the Parole Board’s conditions. A simple case may require only prompt administration; a complex risk management plan may justify more time.
4. Burden and evidence. Where a claimant in custody raises a prima facie allegation of unreasonable delay, and the relevant facts are substantially within the Secretary of State’s control, the burden rests on the Secretary of State to show what was done and that the delay was reasonable. The duty of candour and ordinary rationality may justify adverse inferences where relevant evidence is withheld.
5. Application. The Secretary of State had no adequate system for identifying, quality-controlling, securing or monitoring supported accommodation and failed to escalate persistent delay. The evidence did not establish an inadequate national supply of accommodation. The delay became unlawful by 1 August 2022. The claimant’s self-harm incident and the withdrawal of a provisional placement were causally linked to the prolonged delay and were not attributable to him.