Mr Justice Silber :
I. Introduction
- The issues raised on this application are whether there has been a breach of the rights of Jan David Morales ("the claimant") under Article 5(4) of the European Convention on Human Rights ("ECHR") because of:-
(a) The delay in conducting a review of his detention following his recall to prison on 22 February 2007 ("The Delay Issue"); and
(b) The lack of powers on the part of the Parole Board ("the Board") to require the Secretary of State for Justice ("the Secretary of State") and the Staffordshire Probation Service ("the Probation Service") to produce relevant materials in their possession and in particular a DVD with the consequence that the Board did not satisfy the requirement of "independence" required by Article 5(4) ("The Powers Issue").
- Permission to proceed in respect of the delay issue was given on paper by Burnett J on 22 May 2008. Mr Christopher Symons QC sitting as a Deputy High Court Judge on 14 May 2009 gave permission in respect of the powers issue after an oral hearing.
- The two challenges overlap as the delay issue relates to the specific facts of the case and the powers issue is a challenge to the structure of the powers of the Board. Both challenges are resisted and it is also said in respect of the powers issue that it does not arise on the facts of the case but that in any event, the claimant's case is without substance. In this judgment, I propose to set out the chronology in paragraphs 4 to 20 before considering the delay issue in paragraphs 21 to 70 and then the powers issue in paragraphs 71ff.
II. Chronology
- On 28 October 2005, the claimant was sentenced to 30 months imprisonment for twenty-one offences of manufacturing, possessing and distributing child pornography with an extension period of two years pursuant to the terms of Section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. He had 21 previous convictions for 87 offences. On 25 January 2007, the claimant was released from prison under the terms of the automatic conditional licence, the terms of which included residence at approved premises, a curfew and an obligation on his part to attend a Community Sex Offender Group ("CSOG").
- On 21 February 2007, the claimant attended a CSOG session in the evening and it was recorded on a DVD. On the following day, a request was made by the Probation Service to the Secretary of State for the claimant's emergency recall to prison (i.e. within two hours) on the grounds that at the CSOG session on the previous day, the claimant had been aggressive, intimidating, challenging and abusive. The request for recall not only referred to what occurred at the meeting on 21 February 2007 when he said "his idea of relaxation following group sessions would be to beat a probation officer to a pulp" but also to the claimant's general unacceptably intimidating, rude and hostile attitude to probation personnel and his manipulative conduct. The request for recall described the claimant as posing a high risk of harm to children based on the current offences, his continued denial of them and his reluctance to address his offending behaviour.
- It was not based solely on what occurred at the CSOG session but also was focussed on the claimant's general behaviour. Indeed in the recall document, the Area Manager wrote that:-
"It would appear that Mr Morales is resentful of the supervisory process and is prepared to behave in unacceptable ways to minimise challenges to himself and accountability for his behaviour. Since his release he has demonstrated he would behave manipulatively to circumvent the conditions of his licence for which he received a Senior Manager's warning. This has not had the desired effect on Mr Morales' behaviour. It is unacceptable that a member of staff, who is experienced, should be left fearing for their [sic] personal safety.
No alternative to Emergency Recall".
- The fact that the decision to recall the claimant was made not only on the basis of his behaviour at the CSOG session meant that the decision whether to subsequently release him entailed consideration not merely of what happened at that session but also of other aspects of his behaviour such as his manipulative behaviour and other matters which I will set out in paragraphs 49 and 50 to 55. This was a complex case in which the conduct of the claimant over a period of time had to be considered and this entailed looking at many matters other than what the claimant said or did at the CSOG session.
- Pursuant to section 254(3) of the Criminal Justice Act 2003 ("CJA 2003"), the recall of the claimant gave rise to an obligation on the Secretary of State to refer the matter to the Board, which is then required to carry out a review of the recall. The Secretary of State had issued directions to the Board under Section 239(6) of CJA 2003 stating how it should carry out its statutory functions and which I will explain in paragraph 30 below.
- On 10 April 2007, the Secretary of State eventually referred the matter to the Board but, as I will explain, it did not consider the matter until 10 May 2007. Meanwhile on 23 April 2007, Ms Jacqueline Thompson of the Probation Service wrote to the claimant's then solicitors in respect of their request for copies of any videos or audio tapes recorded during any session that the claimant had undertaken with the Probation Service. She explained that she would have to make inquiries because, as she has stated in a witness statement, she had reservations about disclosing the tapes as doing so might constitute:-
"an unauthorised disclosure of personal information to third parties, most obviously other participants in the sessions apart from the Claimant".
- It is appropriate now to explain for what purposes video recordings are made of the CSOG sessions. The Home Office Circular relating to them (I6/2003) ("the Guidance") explains that:-
"Participants are informed that the purpose of recording the session is for quality control and that the camera/microphones will be focussed on the tutors/facilitators. Offenders sign a statement of understanding agreeing to the recording of the session and its subsequent use. The recordings are reviewed by the Treatment Managers as a way of monitoring the quality of the programme delivery. There is a subsequent quality assurance check at a later stage by an independent assessor, as part of national audit/quality assurance schemes"
- There are issues on whether the videos can be disclosed for other purposes such as proceedings before the Board and these are also addressed in the Guidance which states that:-
"On the assumption that it is established either in the context of a request by a party to proceedings or by a court, that a recording is prima facie relevant to proceedings, the National Probation Service is entitled to edit any information on the recording that may threaten some other public interest, e.g. public safety. In the context of sex offender programmes, it is considered arguable that there is a sufficient public protection interest in maintaining the integrity of these courses, which necessitates protecting the confidential nature of the sessions. On this basis, the National Probation Service should be able to edit from recording being disclosed the personal data (e.g. voices) of all offenders other than the offender who is a party to the proceedings in question. If it is not possible to edit a recording in this way, a transcript of the disclosable parts could be provided instead. As a last resort, and in the event that the court insists on the disclosure of any part of the recording which discloses information relating to another offender, then the area should be asked for safeguards to be attached to the disclosure (e.g. the recording to be used solely for the purposes of the litigation, remain in the defendant's counsel's possession, and not copied etc.)".
- Ms Thompson has explained that she was aware of the Guidance and I will have to return to consider it when deciding whether the Probation Service was justified in delaying handing over the DVD.
- On 9 May 2007, the claimant's former solicitors wrote to the Parole Review Team denying that the claimant had said that his idea of relaxation was "to beat a probation officer to a pulp" and stating that as all sessions were video-recorded and audio-recorded, the evidence of the claimant's behaviour on the recording should be supplied.
- Upon referral, the Board eventually fixed a paper review hearing for 10 May 2007 at which it noted that the claimant "had previously received a written warning for engineering an unnecessary hospital visit to allow him to leave the hostel prior to a curfew". As I will explain, there were disputes on other issues such as the list of previous convictions of the claimant. The Board was unable to reach a decision as the claimant disputed most of the events in the breach report. It therefore directed an oral hearing and that fairness required the disclosure of video recordings by the Probation Service of the CSOG session in which the claimant was alleged to have behaved in the manner which led to his recall. This direction was made without consulting the Probation Service. This request forms part of the central background to the Powers Issue to which I referred in paragraph 1 above. As I will explain in paragraphs 58 to 60 below, the Probation Service through Ms Thompson took advice on whether the DVD could be provided and concluded that it could not because it might infringe the rights of other participants, who had not waived their rights. The Probation Service also made an alternative suggestion including providing if required to do so a transcript of the CSOG session of 22 February 2007. The Board also directed the attendance of certain witnesses and invited the claimant to submit any further representations or evidence that they considered relevant.
- On 25 July 2007, a fax was sent from Ms Paula Reynolds of the Probation Service to Mr Ayo Adeosun of the National Offender Management Service ("NOMS") requesting a change of the hearing from the previously arranged date of 20 August 2007 to another date. The hearing was then re-fixed for 22 August 2007. Ms Amanda Smith on behalf of the Secretary of State made written representations to the Board dated 17 August 2007 in which she stated that the claimant "represents and (sic) unacceptable level of risk to the community and should not be released at this time". I will return in paragraphs 51 to 56 to summarise and consider this report in greater detail. The Probation Service produced a series of reports explaining why it could not support his release and relying on aspects of the claimant's behaviour other than what had occurred at the CSOG session on 22 February 2007.
- Before that re-fixed hearing, additional directions were given on 13 August 2007 but the hearing on 22 August 2007 was adjourned to 4 October 2007 because of the failure to produce the DVD and also because of the need for other named witnesses from the Probation Service to attend. It was pointed out that although "one key piece of evidence" was the video recording of the session on 21 February 2007, there were "other matters that will be taken into consideration". Directions were given requiring the Secretary of State to produce the DVD and for three named witnesses to attend at the next hearing.
- On 30 August 2007 after the Probation Service had received the letter setting out the decision of the Parole Board, it wrote to the Board explaining why it could not produce the DVD. Ms Thompson has explained that to the best of her knowledge, no reply was received to that letter.
- The Probation Service did supply the Board with a copy of the DVD under cover of a letter of 28 September 2007 after Mr. Simpson the Director of Business Resources of the Probation Service had looked at the DVD and he had decided that this could be done although he still had reservations about its confidentiality. Mr. Simpson still believed first that the proper course was to offer to provide a transcript of the CSOG session but second that there was no guarantee that it could be produced in time for the hearing due on 4 October 2007.
- At the first full hearing on 4 October 2007, the Secretary of State still objected to the DVD being viewed but after some argument, it was eventually viewed. The Board adjourned the matter first because it had insufficient time on that occasion to complete the hearing and second because "other witness not present would be required to give oral evidence". So it adjourned the matter to 6 November 2007 and gave directions for further evidence to be provided at that further hearing. Directions were given before this hearing for the production of various other minutes, the attendance of Police Constable Boyles (whose evidence related to inquiries concerning the claimant's recall) and of Mr Carlton Sheath, (who was a senior assistant physiologist). At the hearing, evidence was given by the claimant and Mr Steve Parry, the claimant's Second Co-Home Probation Officer. As I will explain, the Board then considered not merely the DVD but also adverse reports on the claimant produced by the Probation Service and on behalf of the Secretary of State.
- At the adjourned hearing on 6 November 2007, the Board reserved its decision. On 9 November 2007, the Board gave its decision in which it stated that the claimant was "a difficult and challenging man" but that he did comply with the terms of his licence however reluctantly. It concluded that "no evidence was produced to the Panel to indicate on a balance of probabilities that these traits were such that they demonstrated a risk of you committing a further sexual offence such as it was necessary to return you to custody". At paragraph 35 of its decision, the Board found that the claimant's recall to prison had been neither necessary nor proportionate. His immediate release was ordered subject to a series of conditions in his licence.
III. The Delay Issue
(i) Introduction
- Mr Manjit Gill QC, counsel for the claimant, contends that the delay in reviewing the claimant's detention after his recall was caused first by the failure of the Board to act speedily and to hold an earlier and more speedy hearing or hearings; second by the failure of the Secretary of State to take proactive steps to view the DVD itself and to take action to review the recall decision; and third by the failure of the Secretary of State and the Probation Service to produce at an early stage the DVD of the CSOG session of 21 February 2007 to the Board and to the claimant. It is said by Mr Gill that the alleged misbehaviour of the claimant during the CSOG session of 21 February 2007 was of critical and crucial importance to the decision to recall him and that it was wrongful to continue to detain him without the Secretary of State and the Parole Board being allowed to view the DVD especially as the Board when shown the DVD relied on it to a large extent when assessing the allegations against the claimant and deciding whether it was safe to release him. He also contends that there are other respects in which the Secretary of State, the Board and the Probation Service infringed the claimant's Article 5 (4) rights.
- Mr Gill contends that each of the defendants has infringed the rights of the claimant under article 5(4) of the ECHR, which provides that:-
"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 Gill contends correctly in my mind that in assessing the delay it is necessary to keep in mind that in R (Sim) v Parole Board [2004] QB 1288, 1337 [50] it was held that the Board should direct the release of a recalled extended sentence prisoner unless it was positively satisfied that it was necessary for the protection of the public that he be confined. In other words, there was a presumption in favour of re-release of the claimant.
(ii) What are the principles for determining if there has been a breach of the claimant's Article 5(4) rights by failing to release him earlier?
- Mr Mark Vinall for the Secretary of State does not dispute the significance of the approach stated in Sim but he points out that before there can be a finding that a defendant has infringed article 5(4) rights of a claimant, it has to be shown that the defendant body had not taken reasonable steps to proceed to a hearing and had delayed unduly.
- In support of this submission, he relies on the statement of Lord Carswell (with whom other members of the Appellate Committee agreed) in In re Docherty (Secretary of State for Northern Ireland Intervening) 2008 UKHL 33; [2008] 1 WLR 1499, 1511 where this case is reported as In re D in which he said, with capital letters inserted by me for ease of reference, that:-
"35. (A) I am of the view, on consideration of the foregoing summary, that the commissioners took reasonable steps to proceed to a hearing, and that the delays were mostly outside their control. Some of them were attributable to the respondent's change of legal representation and to requests from his solicitors to extend time over various steps. (B) Some delays were unavoidable, bearing in mind that the panel consisted of part-time members and dates had to be found when they could all attend, and the witnesses were available. (C) I conclude accordingly that the commissioners did not delay unduly at any stage, notwithstanding the very long time that the proceedings took to reach a determination. I therefore would not favour making any declaration of breach of article 5(4) of the Convention."
- Mr Gill does not accept that this statement sets out any general principle that if a defendant took reasonable steps and did not delay unduly, then there cannot be a breach of Article 5(4). He says that what is stated in [A] in the quote merely describes what happened in that case but that it does not constitute a general principle. I am unable to agree because it is made very clear in the passage in [C] that because the commissioners did not "delay unduly at any stage", there was no breach of Article 5(4) and that was the applicable litmus test.
- Furthermore, and perhaps more importantly, one of the issues with which the Appellate Committee was concerned on that appeal was whether the Northern Ireland equivalent of the Board had infringed the Article 5(4) rights of a prisoner by not considering earlier whether he should be released. Lord Carswell introduced his consideration of this issue by stating that 'what has to be considered is whether the Commissioners failed to act with proper expedition" [32]. He then carried out a fact-sensitive inquiry before reaching the conclusions in paragraph 35 which I have set out in paragraph 25 above and which shows that as in the Doherty case if in the words of Lord Carswell, the Board acts "with proper expedition" and "did not delay unduly", it can successfully resist a claim for breach of Article 5(4). So to that extent, I accept Mr. Vinall's submission.
- It is noteworthy that Judge Pelling QC (sitting as a judge of the High Court) relied on the statement of Lord Carswell in Doherty which I have cited and he then explained correctly in my view in R (Pennington) v The Parole Board [2009] EWHC 2296 (Admin) that:-
"17. ..the current state of the learning in relation to claims under article 5(4) against the Parole Board is as follows:
..
iii. Delays resulting from the Parole Board's own reasonable actions for example in requiring further information before a case is listed for hearing does not amount to a breach of article 5(4)".
(iii) Was the failure of the Probation Service to hand over the DVD earlier or the failure of the Secretary of State to view the DVD earlier the reason why the claimant was not released earlier?
- Mr. Gill argued much of the claimant's case on the basis that the failure of the Probation Service and the Secretary of State to examine and/or to hand over the DVD to the Board until 4 October 2007 was the reason why the claimant was not released earlier. Thus, it was contended, for example, in the claimant's skeleton argument that "the review could have been properly completed by the time of the first paper review [i.e. on 10 May 2007] if only the DVD had been made available." and that
"the DVD would have shown ..whether or not the [claimant's] behaviour could be characterised as the Probation Service sought to characterise it and whether it was appropriate on the basis of that behaviour to recall the claimant to prison".
- This submission has to be considered in the context of the Board's duties which derive from directions issued by the Secretary of State to the Board under section 239(6) of the 2003 Act stating how the Board was to carry out its functions. They included provisions that:-
"in determining whether the recall was appropriate a Parole Board is entitled to take into account the information available at the time the recall decision was taken, together with any subsequent information including representations made by or on behalf of the offender. The Parole Board should consider whether:
(a) The prisoner's continued liberty presents an unacceptable risk of a further offence being committed; or (b) the prisoner has failed to comply with one or more of his or her licence conditions and that failure suggests that the objectives of probation supervision have been undermined.
..In determining whether to re-release the prisoner the Parole Board should satisfy itself that the prisoner presents an acceptable risk to public safety and that adequate risk management arrangements are in place."
- It is not in dispute that these provisions required or enabled the Board to look not merely at the reason why the prisoner has been recalled but generally to assess the position in relation to whether he or she presented an acceptable risk to public safety. This exercise entailed consideration of all relevant aspects of the claimant's behaviour and in particular whether the claimant presented an acceptable risk to public safety on release. This meant considering with great care all aspects of the claimant's conduct in order to assess the risk he posed to public safety.
- I am unable to accept Mr. Gill's contention that the critical or the sole task of the Board when deciding whether to release the claimant was to examine the DVD. It is true that the claimant's behaviour at the CSOG session on 21 February 2007 was the catalyst for his recall but there were other significant and relevant objections to his release as set out in the Recall document as I explained in paragraph 6 above. These objections included his manipulative behaviour and they led to the conclusion of the Secretary of State in Ms Smith's report of 17 August 2007 that the claimant "is assessed as high risk of harm to children" because of his "reluctance to address offending behaviour in the community and the negative attitude to supervision". These and the other reasons put forward by the Secretary of State and the Probation Service would have to have been considered carefully by the Board, even if the DVD of the CSOG session had been supplied and watched. The case against recall was not based solely on the claimant's behaviour at the CSOG session, but it also depended on his previous behaviour which had caused concern for the Secretary of State and for the Probation Service. In the light of the conflict on all relevant issues between the claimant, on the one hand, and the Secretary of State and the Probation Service on the other hand, the Board quite correctly required further evidence on these divers matters.
- I also cannot accept the contention of Mr. Gill that if the DVD had been disclosed, the review could have been completed in May 2007 because, as I have explained, apart from consideration of the DVD of the CSOG session, there were still many other important matters which had to be considered by the Board before release could be ordered. This was a complex case which required careful consideration of the many issues raised and which the Board had to resolve. The Board itself explained in ordering an oral hearing in May 2007 that:-
"In general, [the claimant], who has consistently maintained his innocence, is described as constantly challenging and attempting to undermine and intimidate probation person. He had previously received a written warning for engineering an unnecessary hospital visit to allow him to leave the hostel prior to curfew end.
However, [the claimant] through his legal advisers, disputes almost all the events described in the breach report. He considers that the reason for the recall was his wife's refusal to furnish a client list from her company ([The claimant's] involvement in the company being a further area of dispute). There are also concerns at the accuracy of the list of previous convictions, which the Panel noted were attributed to a variety of aliases.
In these circumstances, the panel was unable, on the papers, to resolve the conflicting versions of events or to reach a conclusion as to the appropriateness of recall or [the claimant's] suitability for early release".
- A. It follows that the Board's decision to require an oral hearing was not a consequence of its inability to see the DVD because even if it had been available to the Board at the time of the paper review of the claimant's case in May 2007, an oral hearing would still have been necessary to consider all these important objections raised to recall and the claimant's challenges to the list of convictions recorded against him. I set out in paragraph 45 the further material which the Board quite correctly required to be made available for the oral hearing.
B. Similarly, as I will explain, the failure to produce the DVD until 4 October 2007 did not delay the claimant's release as there were other grounds relied on by the Secretary of State for considering that the risk of harm to children posed by the claimant. I set out in paragraph 50 the further evidence which the Board quite correctly said at the hearing on 22 August 2007 was required for the hearing on 4 October 2007. It is quite clear that on each occasion when the Board considered the claimant's application for release whether it was on 10 May 2007, on 22 August 2007 or on 4 October 2007, it had to consider matters other than what occurred on 22 February 2007 and that it is not the fault of any defendant or the claimant that on each such occasion, the Board required that further evidence had to be called and this necessitated an adjournment. I should add that the Board acted with reasonable care and did not delay unduly in making the directions which it did for further evidence on 10 May 2007, on 22 August 2007 or on 4 October 2007.
- It is appropriate now to deal with the claimant's case in respect of each of the relevant different time periods. As Stanley Burnton J (as he then was) said in the case of KB & Ors v Mental Health Tribunal and Secretary of State for Health [2003] EWHC 193 (Admin), such estimates of delay must inevitably be, to some extent, impressionistic. I should also explain that it has been agreed by counsel that my task on this issue is solely to decide if the claimant's Article 5 (4) rights had been infringed, including the causative effect of the conduct of the appropriate defendant. The question of remedies available to the claimant will have to be decided at a subsequent hearing.
(iv) Was there a breach of the claimant's Article 5(4) rights in the period from 22 February 2007 (the date of recall) until 10 April 2007 (the date the claimant's case was referred to the Parole Board?
- The claimant was recalled on 22 February 2007 by the Secretary of State after a request had been made by the Probation Service for a recall within two hours on the grounds that at the CSOG session on the previous day, the claimant had been aggressive, intimidating, challenging and abusive. As I have explained, the recall gave rise to an obligation on the Secretary of State to refer the matter to the Board which was required to carry out a review of the recall pursuant to the provisions of section 254(3) of the Criminal Justice Act 2003 and I have already set out the directions given to the Board in paragraph 30 above.
- In a witness statement dated 17 November 2010, Kerry Adams the Deputy Head of Post-Release Casework in the Public Protection Casework Section, stated on behalf of the Secretary of State that there is a notional target of 24 hours from the time of notification of recall on 26 February 2007 for the Recall Section to send the representation pack to the prison. This is only a target time and a failure to comply with it does not mean that there has been a breach of the claimant's Article 5(4) rights but the shortness of the notional target period shows that urgency was required.
- The recall of the claimant gave rise to an obligation on the part of the Secretary of State to refer the matter to the Board. The Secretary of State then had to send a dossier to the Board, which would include up-to-date reports from probation officers. It is common ground between counsel for the claimant and for the Secretary of State that this should have been sent to the Board who should receive it within 7 days but there is a dispute from when that period should run. In my view it should run from the time of recall which was 22 February 2007 and that would mean that it was only on the eighth day after that date that the claimant's article 5(4) rights would be infringed if the dossier had not been received by the Board by then. So the Secretary of State infringed the Article 5(4) rights of the claimant by failing to act with proper expedition from 2 March 2007 (which was the eighth day after 22 February 2007) until the Board received the dossier on 10 April 2007
(v) Was there a breach of the claimant's Article 5(4) rights in the period from 10 April 2007 (date case referred to the Parole Board) until 10 May 2007 (date of Parole Board hearing)?
- The procedure that the Board adopts on receipt of a recall dossier in respect of a determinate sentence prisoner such as the claimant is that a Panel of the Board initially considers the recall decision on the papers. According to the witness statement of Mr Terry McCarthy, who is the Head of Casework at the Board, in some cases the Panel is able to reach a determination on the papers as to the appropriateness of the recall of a prisoner and his or her suitability for early release. In other cases, the Panel considers that an oral hearing is necessary and it makes a recommendation to that effect. The internal target of the Board for the period for reconsideration on the papers of a recall decision was and is six working days from receipt of the referral. Unfortunately in this case, the earliest a Panel was able to consider the claimant's case was 10 May 2007, which was a month after the referral.
- The case for the Parole Board was that the delay in dealing with the claimant's case was not a consequence of lack of resources on its part as had been suggested by the claimant but that the delay was caused by the number of referrals during this period, which significantly outnumbered the projections for referrals which had previously been made by the Secretary of State and on which the Board had planned its allocation of resources. According to Mr McCarthy, the Secretary of State had predicted 16,400 paper recalls for 2007/2008 whereas 19,060 paper recalls were actually received during the period.
- Mr McCarthy explained that the Board therefore had an insufficient number of members available to consider recalls within the target timetable and cases were placed before a panel in a chronological order in which the referral was received.
- On 9 May 2007, the claimant's then solicitor wrote to the Parole Review Team making representations as to the claimant's deteriorating health and which he asked to be placed before the Board which was due to hold a paper review on 10 May. This letter would only have been received shortly before the paper review. Lord Phillips M.R. explained in R (C) v London South and West Region Mental Health Review Tribunal [2002] 1 WWLR 176, 184 [42] that in relation to the claim that there has been a breach of Article 5(4):-
"The court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of Article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable dispatch having regard to all the material circumstances".
- So I have to make a fact-specific decision as to whether there was a failure to have had available adequate resources so that the paper review would have taken place earlier. The internal target of six days does not mean that any delay after that period is culpable or blameworthy so as to lead to a finding that Article 5(4) has been infringed. What is critically important in this case was the previous delay from the claimant's recall on 22 February 2007, which in those unusual circumstances required the Board to consider this case expeditiously and not to consider it only about eleven weeks later, especially in the light of the decision in Sim (supra), which created a presumption in favour of release. My view is that this matter ought to have been dealt within 14 days, namely by 24 April 2007 if the Board had acted with proper expedition. There was therefore a delay of 16 days which is culpable and for which the Board is responsible. It is not clear why the Parole Board could not have taken steps to increase the number of people available to deal with paper hearings when they realised that the Home Office projection was not correct but as no cogent evidence has been adduced on this issue, I will not take this factor into account.
- I appreciate that the Board was relying on predictions made by the Secretary of State but it was primarily the Board's responsibility to deal with reviews and if need be expedite cases such as that of the claimant where there had been a previous delay. In addition, there is no reason to believe that the Home Office did not act reasonably in making its projections. So no claim can be made for infringement of the claimant's Article 5(4) rights against the Secretary of State or the Probation Service but only against the Board.
(vi) Was there a breach of the claimant's Article 5(4) rights in the period from the paper hearing on 10 May 2007 (the date of the paper hearing) until 2 July 2007 (the date papers were re-sent to the Board's oral hearing's team)?
- As I have explained, the Panel considered the matter on paper on 10 May 2007 before it directed that the case should be sent for an oral hearing at which hearing there should be available first the attendance of the Home Probation Officer; second the attendance of the male facilitator of the CSOG programme session on 21 February 2007 or a statement by him describing the behaviour of the claimant during that session mentioned in the breach report; and third the production of any video tapes that exist of any other CSOG session in which the claimant participated. As I have explained in paragraph 33 above, there were many matters, which had to be clarified by further evidence other than the production of the DVD of the CSOG programme.
- Unfortunately as Mr McCarthy of the Board frankly explains, the claimant's dossier was not transferred to its oral hearings team for listing as it should have been and he explains that he has been "unable to ascertain precisely what happened during that period, but it appears that the claimant's file was mislaid". The Board accepts correctly that there was a period of undue delay in listing the case, which constituted a breach of its obligations under Article 5(4), and it seems that the claimant's case only came to the attention of the oral hearings team on 29 June 2007 and they were re-sent the claimant's file on 2 July 2007.
- In my view, Miss White on behalf of the Board was quite correct to accept that there was a period of undue delay in listing the case, which constitutes a breach of the Board's obligations under article 5(4). It might well be that the Secretary of State's team did not send the matter to the correct part of the Board but to my mind that factor is not of great potency because the Board should have had in place a system to make sure any such document was redirected internally and without any delay. I accept that if the Board had directed the matter properly, the papers might not have reached the oral hearings team and steps taken by them until 2 days thereafter. That to my mind shows why the Board alone should be responsible for this delay, which was from 12 May 2007 until 2 July 2007, which constituted an infringement of the claimant's Article 5(4) rights.
(vii) Was there a breach of the claimant's Article 5(4) rights in the period from 2 July 2007 (when the papers were resent to the Board) to 22 August 2007 (when the first oral hearing took place) and were the Probation Service and/or the Secretary of State at fault for not making the DVD available to the Board and the claimant earlier?
- After the listing team commenced contacting potential Panel members for available dates on 2 July 2007, the hearing was listed on 16 July 2007. There is nothing to suggest that this delay constituted a breach of the claimant's Article 5(4) rights on the basis that any of the defendants in Lord Carswell's words in Doherty (supra) "failed to act with proper expedition." Nor is the fact that an oral hearing was fixed for a date as late as 20 August 2007, a breach of the claimant's Article 5 (4) rights, especially as all these matters occurred during the holiday season. It will be recollected that, as I explained in paragraph 25 above, Lord Carswell had excused a period of delay in Doherty while attempts were being made to fix hearings at times convenient for members and witnesses.
(viii) Was there a breach of the claimant's Article 5(4) rights in the period from the hearing on 22 August 2007 (which was the date of the first hearing) until the date of the adjourned hearing on 4 October 2007?
- At the hearing on 22 August 2007, the claimant was represented by counsel who challenged the validity of the recall and who invited the Panel to direct the claimant's immediate release. The Secretary of State had provided written evidence in advance of the hearing and had invited the Panel to find that the claimant was properly recalled as he continued to present an unacceptable level of risk to the public with the result that he should not be released. I have already explained in paragraph 6, the grounds for the claimant's recall were not based solely on what was said to have been stated by the claimant at the CSOG session on 21 February 2007. Indeed, there were many other allegations which showed that first the Secretary of State "assessed [the claimant] as high risk of harm to children", second that the claimant "did not agree with the conditions of [his licence]", third that he had been "rude, aggressive and challenging" to members of staff at his hostel and at the Probation Service, fourth that he "deliberately manipulated his curfew" and fifth that he was "currently unmanageable in the community". These allegations which were based on reports available to the Secretary of State showed that there were many issues to be considered by the Board other than what was said to have been stated by the claimant at the CSOG session on 21 February 2007.
- The Panel postponed the determination of the case without hearing any evidence in order for the Secretary of State to produce video evidence and also to clarify other matters and obtain more evidence. It explained (with my emphasis added) that:-
"Although there are other matters that will be taken into consideration by the Panel in determining the validity of the recall, the Panel judges that one key piece of evidence is the video recording of the CSOG session held on 21st February 2007".
- The Board directed that the Secretary of State ensure that three named probation officers attend the adjourned hearing and the Board acted with all proper expedition in adjourning to consider this evidence. To understand what the Board was referring to when it said that there were "other matters that will be taken into consideration", I must explain the stance of the Secretary of State. Ms Amanda Smith, a Public Protection Advocate employed by the Secretary of State, appeared on his behalf on 22 August 2007 having previously submitted a written document dated 17 August 2007 on behalf of the Secretary of State in which she explained that based on the offences for which he had been convicted, the claimant was assessed as "high risk of harm to children". She stated that the Secretary of State considered that:-
"the claimant's reluctance to undertake work to address offending behaviour in the community and his negative attitude towards supervision demonstrates an unacceptable level of compliance and therefore submits that his risk is unmanageable in the community".
- Ms Smith referred to the comments in the report by Mr Raven a "very experienced probation officer", who said that the claimant had acted so aggressively during the CSOG induction that he, that is Mr Raven, "felt shaken and feared for his personal safety" and that the claimant's behaviour through the induction was "unacceptable and he clearly resents supervision". Ms Smith also noted that Mr Raven had noticed in a previous session that the claimant stated that:-
"his preferred strategy for dealing with conflict was extreme violence. This raises further concerns about [the claimant]'s risk management in the community".
- It was also stated by Ms Smith that on his previous release, the claimant had refused to sign his licence because he did not agree with the conditions and "throughout his time on license [the claimant] attempted to push the boundaries of those conditions". She explained that another report to the Parole Board stated that the claimant's behaviour while on licence had been "poor. He has been rude, aggressive and challenging to several members of staff at the Probation Service and at the hostel which made supervision difficult". It was also said that on one occasion, the claimant "deliberately manipulated his curfew [and] it is significant that this took significant planning and organising which demonstrated a high degree of deceit."
- Ms Smith also pointed out that the claimant had previous convictions for deceit and fraud and given his manipulation of the curfew, the Secretary of State was of the view that this was another area of risk which was difficult to manage. Thus the conclusion of the Secretary of State was that he agreed with the report of both the Seconded Probation Officer and External Probation Officer that the claimant's:-
"risk is currently unmanageable within the community and that he needs to undertake further work in custody to address his offending behaviour".
- Ms Smith explained that she was aware that a DVD had been made of the session on 21 February 2007 but that when she read the report, she did not request it nor view it because she thought that Mr Raven's statement was a very comprehensive description of the events and that it contained a partial transcript of the CSOG session, which entirely supported and highlighted the issues about which Mr Raven had been concerned. She also knew that Mr Raven would be a witness at the hearing on 22 August 2007 and that he could give oral evidence of what he had experienced and the claimant could also give evidence. I consider that that Ms Smith acted reasonably in not taking any steps to view the DVD in the light of these factors and in particular the evidence of senior and experienced probation officers.
- Ms Smith stated in her witness statement that Ms Reynolds who was one of the claimant's supervising probation officers and Mr Raven who was another Probation Service witness as well as the solicitor for the Probation Service were adamant that the DVD could not be disclosed as it would infringe the rights of other participants on the CSOG course, who had been talking frankly about their sexual experiences during the session. She explained that the participants knew the session had been videoed in order to monitor the performance of the facilitator but that the information of what was said in the session was otherwise to be kept confidential. Ms Smith also argued that the recording could not be produced or viewed by the Parole Board alone.
- In my view, no blame for the failure to hand over the DVD can be made of the Secretary of State or the Board because the reason why it was not handed over was because of a decision of the Probation Service to refuse to do so. Mr Gill contends that they were at fault and so it therefore now becomes necessary to consider whether the refusal of the Probation Service to hand over the DVD was justified.
- The evidence adduced by Ms Thompson of the Probation Service shows that it received on 17 May 2007 the direction from the Parole Board of 10 May 2007 for the disclosure of the DVD about which the Probation Service had not been previously consulted. She replied on 24 May 2007 explaining that the Probation Service was considering the request for disclosure of the DVD and setting out the reservations based on the Guidance. Ms Thompson has explained that requests for disclosure of videos of CSOG sessions are infrequent and so she duly contacted the Information Commissioner's Office by phone on 5 June 2007. She said that the officials there recognised and shared Ms Thompson's concerns.
- On the same day, she contacted Anna Cervaldi, the Information Security Adviser at the Ministry of Justice as they were the authors of the Guidance. The advice she received was along the lines of the Guidance, which was to seek further information from the person making the request and to try to clarify why they wanted the information confirming that the provision of a transcript "would often be the solution".
- On 11 June 2007, Mr Robert Simpson the Data Controller of the Probation Service wrote to a section within the offices of the Secretary of State for Justice namely the Post-Release Section of the Public Protection Team explaining that because of restrictions in the Data Protection Act 1998, it could not disclose the DVD but as an "alternative" to this disclosure, it offered first the claimant's CRAMS report on the claimant's attendance at various sessions, second an e-mail from the facilitator of the session of 22 February 2007 and third to provide a transcript of the session. Mrs Thompson says that to the best of her knowledge, no reply was received to that letter.
- She also received from the claimant's solicitors (Beswicks) a completed Subject Access Request form and a cheque for the requisite fee of £10. The file was duly sent to those solicitors but she now says that she had overlooked a request for disclosure of "all CCTV recordings" but if she had considered it, she would have set out her reservations about disclosure on the basis that this could have put the Probation Service in breach of the Data Protection Act 1998.
- Mr Iain Daniels, counsel for the Probation Service, points out that when it received the initial direction came from the Board to hand over the DVD in May 2007, no reasons were given and neither the Secretary of State nor the Board had been given any prior opportunity to make representations. He contends that the Probation Service acted appropriately in considering the issues of confidentiality and data protection which arose in a session in which the sex offenders were encouraged to participate in candid and frank discussion. His submission is that the actions of Ms Thompson must be regarded as responsible and sensible. Mr. Daniels asserts correctly in my opinion that no waiver was signed and the documents signed by the other participants made no reference to recordings being used in court or other proceedings.
- Thus it is said by Mr Daniels first that the Probation Service acted promptly and appropriately having regard to a direction made in the absence of any representation and second that the hearing on 22 August 2007 was the first occasion on which the matter could be considered. There are two reasons why I consider that the Probation Service did not infringe the claimant's Article 5(4) rights by failing to hand over the DVD.
- First, in my view the Probation Service acted quite properly and with all due expedition in seeking advice on whether to disclose the DVD bearing in mind the possible claims of confidentiality by other participants in CSOG programme. The Probation Service was in an extremely difficult position and it was obliged to consider not merely the request from the Board to see the DVD but also its opposing obligations of confidentiality to other participants in the CSOG programme whose comments at a confidential CSOG session might then be seen by others such as the Board. The rights of those other participants would be of considerable importance to the Probation Service because if it became known that the DVDs of such sessions could be seen by the Board, it might discourage others from speaking candidly in their CSOG sessions. It is very significant that it had not been suggested or shown by Mr. Gill that there was either any guidance or any previous authority which meant that the Probation Service must have appreciated that it had an obligation to hand over the DVD. To my mind, the Probation Service was faced with this difficult decision as there was no case, guidance or directive setting out what its obligation was in respect of the request to hand over the DVD to the Board. So the Probation Service was justified, if not entitled, to have a hearing on this issue before the Board so as to obtain a decision from the Board as to whether it was obliged to hand over the DVD in the light of the offer to provide a transcript. The Probation Service did not delay unduly in those circumstances and so the Article 5 (4) claim against it fails. There are many instances in which a party holding material has to face opposing claims, such as banks and solicitors and in the absence of clear authority or guidance, the appropriate course is to act carefully in the way in which the Probation Service did. It is noteworthy that the claimant's legal advisers did not seek to obtain the DVD by using the machinery in CPR Part 34.4 which I will describe in paragraphs 84 and 85 below.
- Second, even if the DVD had been handed over to the Board when it was requested in May 2007, the objections of the Secretary of State and the Probation Service to the claimant's release showed first that further investigations were called for on both 10 May 2007 and 22 August 2007 as well as on 4 October 2007 for the reason set out in paragraph 60 below in respect of many matters relied on by the Secretary of State and the Probation Service in opposition to the release of the claimant; and second that further evidence was required in respect of these matters and also the claimant wished to adduce further evidence. I have already explained that the Panel required the attendance of three witnesses who were probation officers Reynolds, Perry and Raven. These orders made on 22 August 2007 were appropriate case management decisions and it cannot be suggested that anybody was at fault in making those orders or in not having those people present on 22 August 2007. Thus I consider that even if the DVD of the CSOG session had been available for inspection on 10 May 2007 or on 22 August 2007, the matter would have had to be adjourned as this was a complex case in which many matters had to be considered.
- So the Claimant's Article 5(4) rights had not been infringed by the need for an adjournment on 22 August 2007. There was no failure on the part of any of the defendants to act with proper expedition in not obtaining an earlier date for the adjourned hearing than the date actually fixed.
(ix) Was there a breach of the claimant's Article 5(4) rights in the period from the hearing on 4 October 2007 (which was the date of the first adjourned hearing) until the date of the second adjourned hearing on 6 November 2007?
- The thrust of this claim is that as there was a lengthy discussion on 4 October 2007 as to whether the DVD should be viewed, this meant that the matter had to be adjourned and that led to the postponement of the claimant's release with the consequence that his Article 5 (4) rights were being infringed.
- It is correct that there was some submissions on 4 October 2007 as to whether the DVD should be viewed but there was no evidence as to their exact length. Even if they took a substantial period of time, I am unable to accept this has caused the adjournment which was caused by the Panel being "forced to adjourn the hearing" as it had decided that further evidence not available at that hearing had to be adduced.
- The further evidence which the Panel required for the adjourned hearing either at that hearing or in advance of the hearing on 6 November 2007 was:-
i) To deal with the claimant's evidence which cast doubt on the contention by the Secretary of State that he had engineered an appointment at the hospital so that he could leave the hostel before his curfew and visit his home;
ii) To obtain the MAPPA meeting minutes and notes as MAPPA had been involved to some significant degree in the decision to recall the claimant;
iii) To procure that attendance of P.C. Emma Boyles whose evidence and the thoroughness of the enquiries surrounding the claimant's recall had been questioned by the claimant;
iv) To call Mr. Carlton Sheath, a Senior Assistant Physiologist at Good Hope Hospital at the claimant's request; and
v) To call the claimant's wife, again at the claimant's request.
- I conclude that in respect of the period after 3 July 2007 until the claimant's release, the defendants acted with proper expedition and did not delay unduly The many matters which the Board had to consider would have required adjournments of hearings even if the DVD had been available without any argument at the start of the hearing. So the argument over whether the DVD should have been disclosed did not infringe the Article 5 (4) rights of the claimant. I should add that if, which is not the case, I had been in any doubt about this conclusion, I would have reached it for the additional reason which I have already explained in paragraph 64 which was that the Probation Service acted with due expedition in considering as they did whether the DVD was disclosable in the light of the rights of the other participants in the CSOG DVD.
IV. The Powers Issue
(i). The Claimant's case
- Mr Gill submits that the Board, in the words of the claimant's skeleton argument, "fails to satisfy the requirements of article 5(4) that it should be an independent court because it lacks the power to enforce compliance with its directions". He points out that this deficiency in the Board's powers had a substantial and adverse effect in the present case as the Board did not have the power in its rules to require disclosure of the DVD as it could merely ask for it but critically it could do nothing to ensure its disclosure in the face of a refusal, reluctance or delay on the part of the other parties in disclosing it. It is said by Mr Gill that this delayed the claimant's release from detention because of the absence of any power on the part of the Board to grant a witness summons backed up by powers of enforcement, such as contempt of court or financial penalties.
- Mr Gill drew attention to the history of the Board which he explained started originally as an advisory body but which in spite of various changes to its powers and functions prompted by a series of rulings form the European Court of Human Rights is, he submits, still not an independent judicial body which can ensure compliance with article 5(4) because it still does not have the powers similar to those of a court as it cannot issue summonses. He points out that in R (Smith and West) v Parole Board [2005] 1 WLR 305, 372 Lord Hope of Craighead said that:-
"75. ..Article 5(4) requires that the proceedings themselves must be conducted in a way a court would be expected to conduct them. ..Article 5(4) requires that the continuing detention must be judicially supervised and because our own domestic law requires that bodies acting judicially, as a court would act, must conduct their proceedings in the way which is procedurally fair".
- Mr Gill says that one of the hallmarks of independence and impartiality for a body is that it has to be equipped with appropriate procedural powers to achieve the result itself and that includes the right to disclosure. He points out that more recently the Grand Chamber in Strasbourg said in A v UK (2009) 49 EHRR 625, 715 that:-
"202. The reviewing 'court' must not have merely advisory functions but must have the confidence to 'decide' the 'lawfulness' of the detention and to order release if the detention is unlawful".
- It is correct that the Grand Chamber went on to say that to be a court, an entity "must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question" [203] but significantly it had just previously stated in that paragraph that:-
"The requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances".
- Mr Gill repeats his point that unlike some other categories of prisoners, extended sentence prisoners such as the claimant who are recalled for breaches of licence conditions are entitled to a presumption of re-release in the light of what Keene LJ said in the Sim case (supra) and to which I referred in paragraph 23 above; this, he says, fortifies the obligation to ensure procedural fairness including the power to order disclosure. According to Mr Gill, the court should apply section 3 of the Human Rights Act 1998 ("HRA") so that the Board is vested with powers to order disclosure with sanctions in the same way as a court is.
- He also submits that his submissions are supported by statements in R (Brooke and Gajik Ter-Organissayan v Parole Board, Lord Chancellor etc [2008] 1 WLR 1950 but I do not agree as that case was dealing with the issue of whether the Board was too close to its supervising department to be independent. This is a totally different issue from the powers issue for which permission was given as I explained in paragraph 1 above. Similarly I consider that the mere fact that coroners' courts have apparently been given by the Coroners and Justice Act 2009 the power to summon witnesses and to obtain the production of documents does not mean that a body that does not have that power lacks independence. What is important is to analyse the Strasbourg jurisprudence and English case law in order to ascertain whether an entity such as the Board can comply with the requirements of being independent for the purposes of Article 5(4) even if it does not possess itself the power to require the production of material even though the Board or the claimant could have obtained such an order by applying to the High Court.
(ii) The submissions of the defendants
- Miss White for the Board stated that it was neutral on this point while Mr Daniels for the Probation Service did not make any submissions on it. The opposition to the claim on this issue came from the Secretary of State on whose behalf, Mr Vinall submitted that:-
(a) In order to comply with Article 5 (4), the Board has to be a court which has the power to make binding and enforceable decisions on the principal issue of whether the detention of an individual is lawful or under Article 6(1) the determination of civil rights and obligations. So the Board can be "independent" without having itself the power to issue summonses itself;
(b) In this case there was adequate machinery for a party to obtain disclosure in relation to Parole Board proceedings under CPR Part 34;
(c) In any event, on the facts of this case the hearing of the claimant's application for re-release would not have been heard any earlier if the Board itself had the power to issue witness summonses of the kind advocated by Mr Gill especially in the light of the other issues that had to be resolved; and that
(d) There was no scope for contention that the court should apply section 3 of the HRA as advocated by Mr Gill which must be based on a finding that the claimant's rights under the ECHR have been infringed.
(iii). What attributes does a "court" referred to in article 5(4) have to possess to be compliant with that provision?
- Both sides seek to derive assistance from the decision of the ECtHR in Weeks v United Kingdom (1987) 10 EHRR 293. Mr Gill attaches importance to the statement in paragraph 58 that:-
"It follows that, by virtue of paragraph (4) of article 5, [the claimant] was entitled to apply to a 'court' having jurisdiction to decide 'speedily' whether or not his deprivation of liberty had become 'unlawful' in this sense; this entitlement should have been exercisable by him at the moment of any return to custody after being at liberty and also at reasonable intervals during the course of his imprisonment."
- The ECtHR proceeded in that judgment to explain the powers and attributes the "court" needs to have to comply with article 5(4) when it stated (with my emphasis added) that:-
(a) "59. Article 5(4) does not guarantee a right to judicial control of such scope as to empower the 'court' on all aspects of the case, including questions of expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which, according to the convention, are essential for the lawful detention of a person subject to the special kind of deprivation of liberty ordered against Mr Weeks";
(b) "61. The 'court' referred to in article 5(4) does not necessarily have to be a court of law of the classic kind integrated within the standard judicial machinery of the country. The term 'court' seeks to denote "bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case… but also the 'guarantees' – appropriate to this kind of deprivation of liberty in question" – 'again of [a] judicial procedure – the forms of which may vary from one domain to another. In addition, as the text of article 5(4) makes clear, the body in question must not have merely advisory functions but must have the competence to 'decide' the "lawfulness" of the detention and to order release if the detention is unlawful. There is thus nothing to preclude a specialised body such as the Parole Board being considered as a 'court' within the meaning of article 5(4) provided it fulfils the foregoing conditions".
- It is said on behalf of the Secretary of State that this shows the attributes required to be a court are therefore first that the Board has to be independent of the Executive and of the parties to the case; second that it has to have the competence to decide the lawfulness of detention and to order release; and also third that it needs the guarantees of a judicial procedure, appropriate to the kind of deprivation of liberty in question.
- Mr. Vinall submits correctly in my view that the ECtHR did not go so far as to say either expressly or impliedly that the Parole Board had itself to have the powers of summoning witnesses or ordering the production of witnesses in order to satisfy Article 5(4). Indeed, on the contrary the ECtHR clearly envisaged that a Tribunal could constitute a "court" so as to satisfy Article 5(4) even if it does not have those powers provided that it satisfies the requirements set out in paragraph 61 of Weeks, which I quoted in paragraph 79 above.
- It is critically important in determining this issue to bear in mind that it is not suggested in any case referred to by counsel first that what is required for an tribunal if it is to satisfy article 5 (4) is that it must have itself the power to order the production of materials or the power to compel witnesses to attend and to give evidence and second that otherwise it fails to comply with article 5 (4) even if such orders can be obtained in the High Court. This point is supported by the statement of the Grand Chamber in A v United Kingdom (supra) that:-
"203 The requirement of procedural fairness under art 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an art 5(4) procedure be attended by the same guarantees as those required under art 6 for criminal or civil litigation it must have a judicial character and provide guarantees appropriate to the deprivation of liberty in question."
- I must therefore reject Mr. Gill's submission because I consider that the Board can be "independent" and that it can, and does, constitute a "court" within the meaning of article 5(4) even though it cannot require the production of documents because:-
i) The power of the Board to make independent decisions of the kind specified in paragraph 61 of Weeks (supra) is quite enough to satisfy article 5(4) of the ECHR;
ii) As Mr. Vinall points out correctly, there is no reason why in principle every part of the process of the independent review of a detention decision must be the responsibility of a single body;
iii) Nothing has been said or suggested in any case that the State is not free to assign procedural issues relating a person's detention to different courts provided that the Board has the power to make independent decisions of the kind specified in paragraph 61 of Weeks (supra); and
iv) There is no support in any case to which I have been referred or of which I have knowledge for the proposition advocated by Mr. Gill that where a particular Tribunal can determine the lawfulness of the detention of an individual but does not have jurisdiction to deal with a procedural issue, this means that it lacks independence and so cannot constitute a court for the purposes of article 5(4). It is not unknown for a court not to have all powers to enforce its orders but to have to rely on another court to enforce them. After all a county court judge hearing a civil fraud claim is independent although the claimant who requires a freezing injunction or a search order in support of his case must go to the High Court to obtain it (County Court Remedies Regulations 1991 reg.3). Similarly Employment Tribunals are independent even though the awards of compensation they make can only be enforced by an application to the county court: Employment Tribunals Act 1996 s15.
(iv) Was there adequate machinery for a party to obtain information or documents in relation to proceedings before the Parole Board pursuant to CPR Part 34.4?
- My conclusion that the Board can be a "court" even though it has no powers itself to compel a party to produce documentation means that the claimant fails on the powers issue. There is another reason why the claimant's case on this issue must be rejected and that is because of the fact that witness summonses by or against the Board can be issued under CPR 34.4 (1). It is not disputed that those provisions in the CPR apply to the Parole Board (see R (Brooks) v Parole Board [2004] EWCA Civ 80 [34] and [47]) and as is explained in paragraph 34.4.1 of Civil Procedure 2010, "the Chairman of the Parole Board Panel is entitled to give directions under rule 9 of the Parole Board Rules 1997 including a direction requiring a party to the proceedings (i.e. the prisoner or the Secretary of State) to apply for a witness summons from the County Court or High Court" (page 943 Vol 1).
- Such summonses must be served at least seven days before the date on which the witness is required to attend before the court although the court has power to reduce those periods (CPR 34.5). The witness summons can require the person concerned not merely to attend court to give evidence but also to produce a document (CPR 34.2) and the word "document" would include a DVD as it covers "anything in which information of any description is recorded" (CPR 31.4). So a DVD containing images and recordings of what was said and done would be covered.
- For all intents and purposes, a party to a hearing in the Parole Board has exactly the same rights to obtain documents and the attendance of witnesses as a party to High Court proceedings. Mr Gill maintains that there would be, in the words of his written skeleton argument, "unnecessary and disproportionate delay" in making the application in the High Court rather than to the Board.
- I am unable to accept that unparticularised submission because such applications would have to be made in writing and they would be heard speedily within the stipulated period of 7 days or earlier if circumstances require it as I explained in paragraph 85 above. Mr. Gill submits without adducing any evidence in support that there are long delays before applications under CPR 34. 4 can be heard in the High Court but that is certainly not my experience. He adduces no evidence in support of his contention. Indeed there are many more people in the form of Masters and Judges who can deal with such applications in the High Court or the County Court than at the Parole Board. No specialised knowledge of the Board's affairs is needed to deal with CPR Part 34 applications made in connection with a hearing before the Board. Indeed no cogent reason has been put forward by Mr. Gill as to why a party would be at a disadvantage if an application for a witness and document to be produced has to be made in the High Court rather than in front of the Parole Board. I consider that there is a particular reason why Masters and judges might be able to dispose expeditiously of applications where the party holding DVD such as the Probation Service has competing claims more effectively than the Board; that is that the courts have much experience of dealing with competing claims in other contexts where one party is reluctant to disclose because of confidentiality such as arising from bankers' duties of confidentiality.
- I must reject the contention of Mr. Gill that having to rely on the CPR Rule 34.4 route will give rise to problems such as that it will cause delay, be cumbersome, cause problems or be ill-equipped to deal with claims for disclosure or witnesses. I find his submission very surprising as my experience has been that CPR part 34.4 works efficiently, speedily and well.
- For those reasons I am quite satisfied there were adequate powers to summons witnesses and to require the Secretary of State and the Probation Service to produce relevant materials in their possession and in particular the DVD. This is a second reason why I reject the contention that the Parole Board does not satisfy the requirements of "independence" required by article 5(4). There is no lacuna in its powers.
(v) Would the hearing of the claimant's application for re-release have been heard any earlier if the Board had power to issue witness summonses of the kind advocated by Mr Gill?
- Mr Gill contends that if the Board had itself had powers to require attendance of witnesses and the production of the DVD the claimant's case would have been heard earlier with the consequence that his article 5(4) rights had been infringed by the absence of this right.
- I am unable to accept this because:-
(i) There is no reason to believe that the Board would have dealt with an application for the production of the DVD more speedily than a CPR 34 application. In any event even if an application could have been made; and
(ii) Even if a successful application had been made for production of the DVD in May 2007, there would still have been a need for all the other issues raised by the Secretary of State and the Probation Service to be investigated and for all the further evidence sought by the Board to be adduced.
V. Conclusion
- The claimant's Article 5(4) rights were infringed by the Secretary of State in respect of his delay in providing a review of the claimant's detention from 2 March 2007 to 10 April 2007 (paragraph 38) and by the Board in respect of its delay in providing a review of the claimant's detention from 24 April 2007 to 10 May 2007 and from 12 May to 2 July 2007 (paragraphs 43 and 47 respectively). The claimant's remedies in respect of those infringements are to be considered at a further hearing.
- All his other claims for infringement of his Article 5(4) rights are dismissed as the defendants acted with proper expedition and did not delay unduly in dealing with the many issues which had to be ventilated and considered in determining if it was safe to release the claimant. In any event, even if the DVD had been produced earlier, consideration of the other issues would have meant that the claimant would not have been released earlier.
- The Parole Board does satisfy the structural requirements of being a "court" for the purposes of Article 5(4) even though it lacks the power to impose sanctions for breach of its procedural directions.
