Unjustified Delay in Parole Hearing Breached Prisoner’s Human Rights
21 December 2010
R (on the application of Daniel Faulkner) v Secretary of State for Justice and Anor [2010] EWCA Civ 1434 – Read Judgment
The Court of Appeal has upheld the appeal of prisoner who spent 10 more months in prison than he should have, due to unjustified delay in having his case heard by the Parole Board. The court found that there had been an infringement of his rights under Article 5(4) of the European Convention on Human Rights (ECHR).
In 2001 Daniel Faulkner was convicted of causing grievous bodily harm with intent (an offence under section 18 of the Offences Against the Person Act 1861). As this was his second offence of this nature, he was sentenced to custody for life, with the minimum period he had to spend in custody being set at two years, eight and a half months. That period expired on 18th April 2004 and he became eligible for parole.
In May 2005, and again in January 2007, the Parole Board declined to direct the release of Mr. Faulkner, but instead recommended that he be transferred to open prison conditions. Both recommendations were rejected by the Secretary of State for Justice. However, when the second recommendation was rejected, Mr. Faulkner was told in a letter accompanying the decision that he would have a hearing and decision on release by the Parole Board by the end of January 2008.
In the Court of Appeal, Lord Justice Hooper referred to the HM Prison Service Lifer Manual, Prison Service Order. No 4700, which set out the procedure for the conduct of Parole Board reviews at the relevant time. This Manual indicated the steps to be taken following the referral of a case to the Board, including the preparation and disclosure of dossiers, and the submission of representations from the prisoner to the Board.
In order to proceed to an oral hearing and decision on Mr. Faulkner’s release by the end of January 2008, Hooper LJ calculated that his case should have been referred to the Parole Board by 1 July 2007, and a complete dossier (known as a “Rule 6 dossier”) should have been provided to the Board in September 2007. In the event, Mr. Faulkner’s case was not referred until December 2007, and a Rule 6 dossier was not provided to the Board until May 2008. As a result, Mr. Faulkner’s case was not ready for hearing until October 2008, and it was not in fact heard until a date became available in January 2009. Following that hearing, the Board directed that Mr. Faulkner be released, and he was freed from prison on 27th January 2009.
By way of judicial review, Mr. Faulkner complained that his hearing and release was unduly or unjustifiably delayed by about a year, and that this breached his rights under Article 5(4) of the ECHR, which provides:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
The requirement that determinations on the lawfulness of detention be made “speedily” entails that there must not be undue delay. The case of In Re D [2008] UKHL 33 suggested that delay was not “undue” if reasonable steps were taken to proceed to a hearing, or if delays were outside the control of the relevant authority or otherwise unavoidable.
There was no evidence advanced to justify the delay in this case, and in the Court of Appeal the Secretary of State accepted that “routine delay in referring prisoners’ cases to the Board would breach article 5(4)”. However, it was argued that, although unfortunate, the delays that Mr. Faulkner experienced were specific to his case and did not represent a break-down of the system.
Having decided that, but for the delays caused by the Secretary of State the hearing should have occurred in about March of 2008, Hooper LJ’s decision, with which Sedley and Wilson LJJ agreed, was straightforward:
In my view, the unjustified delays in this case, for which the [Secretary of State] is responsible, prevented the appellant from having the lawfulness of his continued detention decided in accordance with Article 5(4)…There was therefore, in my view, a breach of Article 5(4) for a period of about ten months.
The Court of Appeal thus overturned the decision of Blair J in the High Court, who had said that a breach of Article 5(4) occurred only if the detention had become “arbitrary”, that being where the system of detention and release “breaks down entirely”. That was a misreading of the judgment of Lord Hope in Secretary of State for Justice v James [2009] UKHL 22, in which the court decided that Article 5(4) did not require the Secretary of State to assist a detainee in putting forward his best possible case for release at parole hearings.
Compensation
The question then became whether Mr. Faulkner was entitled compensation. He had a basic enforceable right to compensation provided by Article 5(5) of the ECHR, but the situation was complicated by two factors. Firstly, it was not possible to say for certain that he would have been released if the hearing had happened when it should have i.e. in March 2008. Secondly, four months after Mr. Faulker was released from prison, he was recalled for breaching his licence, and spent a further six months in prison (he had absconded following an allegation of wounding made against him, which was ultimately dismissed in court).
In relation to the first point, Blair J had decided that even if he had found a breach of Article 5(4), no compensation was payable. It was “not possible to draw the inference from the January 2009 decision that the claimant would have been released earlier” because the reports recommending release that were considered by the Parole Board painted a picture of progress over a period of time. In the Court of Appeal, Hooper LJ rejected the argument that it was enough to show merely that there was a “real chance” that he would have been released, but he disagreed with Blair J on the facts. Having regard to the time the reports were written and the long-held views of officers involved with Mr. Faulkner that he was suitable for release, he concluded that, on the balance of probabilities, he would have been released if the hearing had been held earlier.
In relation to the second point, Blair J had been concerned that an award of damages in such circumstances would undermine public confidence in the administration of justice, but again Hooper LJ disagreed, deciding that the award of damages should not be affected by the fact that Mr. Faulker was recalled to prison shortly after his release. He did not indicate the sum to be awarded, but invited submissions on the matter if a sum could not be agreed.
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