BETTERIDGE v. THE UNITED KINGDOM – 1497/10 – HEJUD  ECHR 97 – Read judgment
On 29 January the Chamber of the European Court of Human Rights held that convicted rapist Samuel Betteridge’s Article 5(4) rights had been breached due to delays in his cases being considered by the Parole Board, and awarded him damages for his ‘frustration’. The media furore, at varying degrees of accuracy, here and here.
The issue, by the time the matter reached the ECtHR, was whether the High Court (and the Government’s) “acknowledgment” of that Mr Betteridge’s Article 5(4) rights had been violated was sufficient redress. In short, the ECtHR held that it wasn’t, particularly in circumstances where the systemic delays on the Parole Board Review System were caused by the Government’s failure to recognize and plan for the full effects of the IPP sentence (brought into force in the Criminal Justice Act 2003). The ECtHR accepted that putting Mr Betteridge to the front of the Parole Board queue wasn’t the answer: that would simply jump him ahead of those who hadn’t sought judicial review. However, damages could meet the ‘frustration’ he had been caused.
Article 5(4) seeks to give those detained the right to a speedy hearing. It states:
4. 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.
Mr Betteridge was serving a sentence of Imprisonment for Public Protection (an “IPP”) which is an indeterminate sentence. He had a tariff of 3 and a half years to serve before he was eligible for release, after which he was entitled to a Parole Board Review. One was scheduled for May 2009, but cancelled.
Mr Betteridge brought proceedings in the Administrative Court. Judgment was handed down in June 2009, at which time he was still waiting for a Parole Board Review and the latest promise was that it would convene in September 2009 (so some 9 months after his tariff expiry).
The Administrative Court held (judgment here) that there had been a violation of Mr Betteridge’s rights under Article 5(4) of the Convention, although it didn’t make a formal declaration. The Article had been violated even though “inevitably” the Panel, if asked, would not have recommended his release, given that in a pre tariff expiry advisory opinion the Parole Board could not recommend a downgrading of his security conditions (part of the road to release) because it wasn’t satisfied that he did not represent a risk of re-offending.
Acknowledging that the delays in Mr Betteridge’s Parole Board Review were due to a lack of resources and man power within the Parole Board, Mr Justice Collins refused to order his case to be heard, which would just allow Mr Betteridge to jump the queue past those who were also caught in the backlog but had not sought judicial review. Mr Justice Collins noted that measures had been put in place to avoid such delays in future, which would need time to take effect.
So the matter might have ended, since Mr Betteridge did not appeal, having been advised by his lawyers that the Court of Appeal would be bound to conclude that it could not prioritise any individual case when the evidence demonstrated that there was a systemic lack of resources.
However, the Parole Board hearing scheduled for September 2009 was also cancelled. In December 2009, Mr Betteridge took his complaint to the ECtHR, defeating the Government’s submissions that he ought to have exhausted his domestic remedies first: the ECtHR agreed that counsel’s advice to Mr Betteridge was correct, and that an appeal to the Court of Appeal could not offer him a reasonable prospect of success.
The Government accepted a violation of Article 5(4) up to September 2009. It explained that at the time that Mr Betteridge’s case was heard by the High Court, a number of legislative and administrative steps were already being taken to address the delay problems that had arisen. It argued that although it took some time for the changes to have an effect on the delay, the violation had been adequately redressed by the acknowledgement of it, and there was nothing left for the European Court to decide upon.
The Court disagreed. Whilst it accepted that it would be unfair to fast track those who claimed judicial review over those who did not, the delays were a direct result of the Government failing to appreciate the demand which would be placed on the system by the introduction of the IPP sentence.
Mr Betteridge was the victim of a continuing breach of his Article 5(4) rights at the time of the Administrative Court decision. In the end, his case did not get considered until January 2010, when the Parole Board recommended that the applicant be moved to open conditions. He had not had adequate redress by the acknowledgement of the breach: the violation continued from 18 December 2009, past September 2009, to 13 January 2010. Mr Betteridge was awarded EUR 750 in respect of the frustration caused by the delay.