20 December 2010

FOURTH SECTION

Application no. 1497/10
by Samuel BETTERIDGE
against the United Kingdom
lodged on 23 December 2009

STATEMENT OF FACTS
THE FACTS
1.  The applicant, Mr Samuel Betteridge, is a British national who was born in 1954. At the time of the lodging of his application, he was detained at HMP Whatton, Nottingham. He is represented before the Court by Chivers Solicitors, a firm of solicitors based in Bingley.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the applicant, may be summarised as follows.
3.  In 2005 the applicant was convicted of the rape of a 14-year old girl. He was originally sentenced to life imprisonment with a tariff (i.e. minimum term to be served before eligibility for release arises) of five years. Upon appeal, this was reduced to a sentence of imprisonment for public protection (“IPP”), which is also an indeterminate sentence (see paragraphs 
17-19.  Section 225(3) originally provided that:
“In a case not falling within subsection (2), the court must impose a a sentence of imprisonment for public protection.”
20 below), and a tariff of three and a half years, less 98 days spent on remand.
4.  A few months prior to tariff expiry, the Secretary of State asked the Parole Board, pursuant to section 239(2) of the Criminal Justice Act 2003, whether the applicant’s security category should be downgraded to allow him to go into open prison conditions. On 15 September 2008, the Parole Board indicated:
“9. The panel, which included a psychologist and a psychiatrist among their number, noted the recommendations for open conditions made by report writers, but they also noted the identification of remaining areas of treatment need specified within both the July/August 2007 PIT and the June 2008 SARN. They feared that there had been an underestimate of risk within the RM-2000 and an insufficient attention to the sadistic elements of the offences in other assessments. They would therefore counsel against the formulaic approach in this case, which appears at least partly to be responsible for the conclusion that once RSOTP [a sexual offenders treatment programme] has been completed no further work is required and would recommend that further individual assessment should be undertaken, which takes account of their specified comments.
10. In reaching their conclusion the panel also noted from your answers (while making due allowance for oral hearing conditions and obvious intellectual limitations) that you appear to have no more than a superficial understanding of the reasons why you committed the index offences or of the risk management strategies, which will be necessary on release to manage the sexual attitudes and responses which you still but partially acknowledge.
11. ... [The panel] therefore make no recommendation to the Secretary of State on the occasion of this review; that is because, balancing your interests in sentence progression against the interests of public safety, they were not satisfied that sufficient evidence exists that your risk of sexual and/or violent offending has yet reduced to a level such that that risk can be safely managed out of closed conditions.”
5.  On 13 October 2008 the Secretary of State referred the applicant’s case to the Parole Board in anticipation of the expiry of his tariff.
6.  The applicant’s tariff expired on 18 December 2008, by which time no Parole Board hearing had taken place. The applicant subsequently challenged, by way of judicial review proceedings against the Parole Board, the delay in fixing a Parole Board hearing.
7.  On 20 February 2009 the Parole Board agreed to hold an oral hearing in the applicant’s case. Due to the number of cases awaiting oral hearing, the earliest available hearing date was in May. However, due to an inability to provide a panel for the hearing, it did not take place in May as planned. The hearing was eventually rescheduled for September 2009.
8.  In the context of the judicial review proceedings before the High Court, the Parole Board accepted that because of the inability to have the hearing in May and the delay until September, there had been a breach of Article 5 § 4 of the Convention in that the hearing had not taken place speedily. The Secretary of State, however, did not accept that there had been a breach, having regard in particular to the fact that the pre-tariff advisory opinion of the Parole Board (see paragraph 4 above) effectively made it clear there was no chance of release upon expiry of the tariff. In those circumstances, he concluded that the absence of an earlier hearing had not constituted a breach of Article 5 § 4.
9.  On 23 June 2009 the High Court handed down its judgment in the judicial review proceedings. Collins J outlined the background to the applicant’s claim, as follows:
“4. By virtue of section 28 of the Crime (Sentences) Act 1997, when the tariff comes to an end the prisoner in question has the right to a hearing before the Parole Board, and if the Parole Board directs his release then the Secretary of State must release him on licence. The Act does not require the Secretary of State to refer the case to the Board unless the prisoner applies for that to happen, but the reality is that the Secretary of State routinely does refer post-tariff lifers to the Parole Board. The reason behind that is that it is common ground that Article 5(4) of the European Convention on Human Rights requires there to be a speedy hearing an independent judicial body, and the Parole Board it is accepted is the equivalent for the purposes of the Convention, to determine whether the continued detention is lawful. In fact it is the practice of the Secretary of State, in cases where the tariff exceeds 3 years, to provide a dossier to notify the Parole Board 6 months before the end of the tariff. The purpose behind that being the obvious one, to enable the Board to put in train steps to ensure that there is a hearing as soon as reasonably possible after the tariff is served.
5. Unfortunately, on the facts of this case, for reasons which are not made clear and which are perhaps not material, the dossier was not lodged until 2 months before the tariff came to an end. That meant that it joined the queue of those cases which were in the Parole Board, and in which hearings had to be held, at a later stage than it otherwise would have done. This meant that the hearing was delayed further than otherwise it need have been.”
10.  Collins J considered the terms of the Parole Board recommendation of September 2008 and noted:
“It follows inevitably from that, that the panel, if asked, would not conceivably have recommended that the claimant was suitable for release.”
 11.  Referring to Lord Hope’s comments in Secretary of State for Justice v. James [2009] UKHL 22 at paragraph 21 as to the requirements of Article 5 § 4 (see paragraph 31 below), he continued:
“22. I confess that for my part I have some difficulty in following precisely what Lord Hope was intending to cover in that last sentence. The reality is that Article 5(4) requires a speedy hearing to determine the lawfulness of the detention. It may well be that in a given case the hearing will, and will inevitably, decide that the detention is lawful. That does not mean that the hearing itself can be deferred beyond a period that can be properly regarded as speedy ... ‘Speedy’ does not indicate a particular period, and I accept entirely that it is fact sensitive. What may be required in a particular case may not be required in another, depending upon the circumstances. But, one has to see in an individual case what has been the cause of the delay. In this case the cause has been the lack of man power in the Parole Board which has meant that it has been unable to provide the necessary panel, which in the case of a lifer and in deciding questions of possible release because it is said that the individual is no longer dangerous, has to be a panel headed by a judicial member. That is hardly surprising having regard to the importance of ensuring not only that those who should be released are released, but that those who should not be are not released, and one is well aware of the public concern that a number of cases have given rise to recently in that regard.
23. It is because the delay has been as a result of the lack of man power, which itself comes back to a failure to provide that man power, that the Parole Board has accepted that there is a breach here of Article 5(4). I should record that that position is being addressed. The evidence before me on behalf of the Secretary of State, and indeed it is confirmed by the evidence on behalf of the Parole Board, is that steps are now being taken to seek further judicial, and indeed other man power, to enable the Board to meet its obligations and thus produce the speedy hearings that Article 5(4) requires. It will take time for the position to be improved: that is inevitable. And it may well be that it could be said that steps ought perhaps to have been taken at an earlier stage ... Nevertheless, that is historical, and as I say there is now a recognition, and I should record that both the Secretary of State and the Parole Board are working together, aware of the problems, and steps are being taken. It is not for me to dictate what steps should be taken. All I can do is to observe that the system clearly, as it existed historically, gave rise to the difficulties which this case illustrates, namely that it was all too possible that hearings were not able to be carried out speedily and so in compliance with Article 5(4) ...
24. Now, it seems to me, going back to Lord Hope’s observation ..., that it is necessary to look at 5(4) on its own. It may well be that there is no breach of 5(1), but 5(4) is an additional and free standing requirement. There must be a speedy hearing to determine whether the detention is lawful, or whether continued detention in the case of someone already detained is lawful. The advisory opinion before the tariff was ended can not deal with that, because clearly, so long as the tariff has not expired, the detention must be lawful and therefore the Board cannot determine that issue, and cannot indeed give the necessary relief that a decision that it was no longer lawful would require, namely, that the prisoner be released. Thus, the advisory opinion does not dispense with the requirement in Article 5(4) that there must be a speedy hearing to determine lawfulness. However, what it can mean, and what it does mean in the circumstances of this case, is that any breach of that does not mean that any redress in the form of damages would be obtainable by the claimant, because it is plain that if the matter had been dealt with when it should have been dealt with there would have been no chance that the Board would have ordered his release, and accordingly the detention would have been considered to be lawful .”
12.  As to the availability of remedies in the case, Collins J concluded:
“27. ... what is being said is that the 5(4) rights have been breached and the claimant is entitled to a declaration at least that that is the case. He also sought, in the claim as originally formulated, a mandatory order requiring that his case be heard in September. That is no longer pursued, and rightly so, if only because it would be inappropriate for an individual, by making a claim for judicial review, to jump the queue at the expense of those who do not seek judicial review. It is further submitted that an order should be made for, if not September, then at least the next available date, but I am not prepared, for the reasons I have already indicated, to make any mandatory order.
28. I am satisfied, as I have said, that the Parole Board was correct to accept that there is here, a breach of Article 5(4), because, and only because, in the circumstances of this case the reason why it was not heard at an earlier date was because of the lack of necessary man power having regard to the pressures upon the Board. But, I am equally satisfied that there is no conceivable claim for damages which will follow, because the inevitable result of a hearing which complied with Article 5(4) would have been that the claimant was not entitled to release. The very best he could have hoped for was a decision that he ought to be placed in open conditions with a view to possible release at the next review hearing, provided of course he satisfied whatever conditions were considered to be necessary.”
 “29. ... In all the circumstances I do not think that it is necessary for me to make any formal declaration in the circumstances of this case. I have already recorded that there was a breach, but it is a breach that will not provide, for this particular claimant, any great advantage. It does make the point, and it is a point that needs to be made, that there is an independent requirement under 5(4) for a speedy period. However, there is no question but that steps are now being taken by the Board in conjunction with the Ministry to ensure that the breaches that have occurred, and certainly were capable of occurring, will no longer occur.”
13.  Finally, as to future cases, he noted:
“30. It is obvious that the measures put in place to alleviate the problem will not have immediate effect. The evidence before me, from a number of solicitors who have experience in dealing with these cases, makes it clear that the delays continue and the backlog has not improved, and indeed that latter point is made clear by evidence produced by the Secretary of State and by the Parole Board. But, as I say, one has to recognise that the changes can not be expected to take place overnight. I do not doubt that the authorities will now appreciate the need to get on top of this problem and to ensure that the hearings that are required are provided, and that the requirements of Article 5(4) are met. While, as I say, in the circumstances of this case, it does not particularly avail the claimant because he will not have achieved release, there may well be cases where that is not the case, and I am glad to see that one of the measures put in place is a more flexible approach by the Board to consideration of cases which do need priority. Obviously, if it has been made clear, perhaps in a pre-tariff hearing, that a particular prisoner, once he has served his tariff, is a real candidate for immediate release, then the sooner that particular individual has a hearing the better.
31. In the light of what is being done, it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) unless there are very special circumstances, something has gone badly wrong despite the new arrangements in that prisoner’s particular case. It will not be helpful, either to the prisoner or to the court, if claims are brought which in reality, because of the existing situation, are not likely to achieve any sensible redress and merely add to costs. Of course, one has sympathy with those who may stay in prison longer than they perhaps, on one view, ought to. That is a thoroughly unsatisfactory state of affairs. But, equally, the court cannot do the impossible. We cannot make orders which are only going to create difficulties for others and are not in any way desirable, because, as I have already said, it is not helpful that prisoner A gets relief which may advance him in the queue but which inevitably means that prisoner B has a longer wait. As I repeat, absent special circumstances, claims of this nature should now be discouraged. But, this has at least brought home to the court, and enabled the court to make the point, that the situation that existed was unsatisfactory, potentially contrary to law, and the court welcomes the steps that are clearly being taken now to ensure that that situation does not continue.”
14.  Following the handing down of the judgment, the applicant was advised by his counsel that no appeal would be successful as 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.
15.  The Parole Board review in the applicant’s case did not take place in September 2008.
16.  The applicant was subsequently advised that a Parole Board review in his case had been fixed for 13 January 2010. It is not known whether the review took place and, if so, what was the outcome of the review.
B.  Relevant domestic law and practice
1. Sentencing of dangerous offenders
a. The Criminal Justice Act 2003 (“the 2003 Act”)
17.  IPPs were introduced with effect from 4 April 2005 by section 225 of the 2003 Act. Under section 225(1), that section applies where:
“(a)  a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and
(b)  the court is of the opinion that there is significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.”
18.  Section 225(2) continues:
“(2) If–
(a)  the offence is one in respect of which the offender apart from this section be liable to imprisonment for life, and
(b)  the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,
the court must impose a sentence of imprisonment for life.”
19.  Section 225(3) originally provided that:
“In a case not falling within subsection (2), the court must impose a a sentence of imprisonment for public protection.”
20.  Section 225(4) defines a sentence of imprisonment for public protection as:
“... a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences.”
b. Amendments to the 2003 Act
21.  The 2003 Act was amended by the Criminal Justice and Immigration Act 2008. In particular, IPP sentences are no longer mandatory: amended section 225 now provides that in a case not falling within subsection (2), the court “may impose a sentence of imprisonment for public protection” if the condition in subsection (3A) (“at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15A”) or subsection (3B) (the tariff which would be set together with time spent on remand is at least two years) is met. Schedule 15A sets out a list of 50 serious offences in England and Wales, Scotland and Northern Ireland.
22.  The new provisions apply to all sentences passed on or after 14 July 2008.
2. Release of indeterminate sentence prisoners
23.  The Parole Board is responsible for the release of prisoners sentenced to life imprisonment. Under section 28(5) of the Crime (Sentences) Act 1997 (“the 1997 Act”):
“As soon as–
(a)  a life prisoner to whom this section applies has served the relevant part of his sentence,
(b)  the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.”
24.  Section 28(6) provides:
“The Parole Board shall not give a direction under subsection (5) above . . . unless—
(a) the Secretary of State has referred the prisoner’s case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
25.  Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time after tariff expiry and:
“(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference.”
26.  Section 34(1)(2)(d) of the 1997 Act (as amended by the 2003 Act) clarifies that “life prisoner” includes a person serving an IPP.
27.  Section 239(2) of the 2003 Act provides:
“It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”
3. Judicial consideration of detention and Parole Board reviews
a. R (Noorkoiv) v. Secretary of State for the Home Department) [2002] 1 WLR 3284]
28.  Mr Noorkoiv had been sentenced to life imprisonment with a 
five-year tariff. His tariff expired on 21 April 2001 and his Parole Board hearing was fixed for 21-22 June 2001. This was due, first, to the fact that the Secretary of State routinely referred cases to the Parole Board in batches and, second, to the practice of the Parole Board to make more effective use of its resources by scheduling hearings for prisoners detained at a particular prison at the same time. The claimant complained about the three-month delay in his case being heard by the Parole Board following the expiry of his tariff.
29.  Delivering its judgment on 30 May 2002, the Court of Appeal concluded that the Secretary of State’s routine delay at the time in referring cases to the Parole Board breached Article 5 § 4:
“33. The arrangements envisage a period of delay of up to three months. While sensitive to the importance of not reading mechanistically from one case to another, one cannot escape from the fact that much shorter periods than three months have been condemned by the ECtHR:
i) In De Jong Baljet and Van den Brink v The Netherlands (1984) 8 EHRR 20[58] the Court said of the ability of a detained serviceman to petition the Military Court that the fact that this remedy could not be exercised until at least two weeks after the arrest prevented the applicants from being able to obtain a ‘speedy’ decision, even having regard to the exigencies of military life.
ii) In Rutten ... which I have already accepted in the context of article 5(1) to involve issues and procedures very similar to those in our case, the Court appeared to be clear that a period of two months and seventeen days was unacceptable. I am not persuaded that the Court was influenced in that consideration by the fact that the period limited by national law had been exceeded.
iii) In E v Norway ... the holiday period of 12 days appears to have been thought to be unacceptable in itself.
iv) In Sanchez-Reisse ... delays of 31 and 46 days in determining requests to be released were found not to have been ‘speedy’.
34. The ECtHR places some weight on the ease of the decision, in the sense of the existing availability of information to the court. Thus, it was influenced in 
Sanchez-Reisse, at paragraph 57 of the judgment, by the fact that the considerations that the court had to determine were apparent in a case file that had been under examination for approximately a year. When the prisoner reaches the end of his tariff period the authorities do not then start on consideration of his case ‘cold’. As is set out in § 7 above, the prisoner is in any event within the custody of, and well known to, the authorities; and the process of formally informing the Parole Board of the nature of his case starts many months before the date of his hearing, and a considerable time before his tariff period expires.
35. I consider to be relevant the nature of the detention to which the applicant is subjected during the time when he is awaiting a decision. He is not treated as a remand prisoner; nor, unlike for instance the applicant in Sanchez-Reisse, as a person detained for preventative reasons whilst awaiting extradition. Rather, as I understand it, the full penal regime continues to be imposed upon him. That would seem to be a strong reason for determining the lawful status of that treatment sooner rather than later.
36. To the extent that the present scheme is seen as imposed on the Parole Board by constraints of resources, that factor cannot offset what is objectively a breach on the part of the state ...
...
38. ... the court suggested, at the first hearing of this appeal, that consideration should be given to changing the timetable within something like the present process, so that the final decision was taken at or very close to the date of expiry of the tariff period. The Secretary of State resisted that suggestion, on three grounds. First, that it also would cause insuperable practical difficulties. Second, he was in any event justified by Convention jurisprudence in taking decisions after the end of the tariff period. Third, he was effectively obliged by the jurisprudence of article 5(4) not to take decisions until after the tariff period had expired ...
Is the Secretary of State justified by Convention jurisprudence in delaying decisions to a date after the end of the tariff period?
39. This is a short point. Miss Richards drew our attention to various statements by the ECtHR in relation to the parole scheme, which seemed to say that a prisoner was entitled to consideration of the lawfulness of his continued detention only after his tariff period had expired. Those statements are to be found in Thynne ..., at paragraph 76; Hussain v UK (1996) 22 EHRR 1[62]; and Curley v UK, application 32340/96 at paragraph 32, where the Court said that persons detained during Her Majesty’s Pleasure are entitled, after the expiry of their ‘tariff’, to have the lawfulness of their detention reviewed
40. Miss Richards [for the Secretary of State] argued that the entitlement therefore only arose after the tariff had expired. That is plainly not what the Court meant. I cannot put the point better than did Mr Gledhill [for the appellant]: review of the lawfulness of detention after the tariff period means review of whether the prisoner should be detained after that period, and not that the review itself can only take place once that period has expired.”
b. Secretary of State for Justice v. James [2009] UKHL 22
30.  In the context of three cases concerning the legality of continued detention after the expiry of the tariff period where the prisoners concerned had not had access to relevant courses to assist them to address their offending behaviour, Lord Hope noted:
“19. ... An issue as to the lawfulness of the continued detention of an IPP prisoner is raised as soon as his tariff period has expired. At that point, and at reasonable intervals thereafter, he becomes entitled to a review by a judicial body of its lawfulness. Lawfulness depends on there being a causal link between the objectives of the sentencing court and the prisoner’s remaining in custody. Section 28(7) of the 1997 Act, as applied to a prisoner serving an IPP by section 34(2)(d) of that Act as amended, meets that requirement. The function of the Parole Board is to determine whether it is no longer necessary for the protection of the public that the prisoner should be confined, and if it is of that opinion to direct his release. The Parole Board has all the powers that it needs to carry out that assessment on the expiry of the tariff period, and thereafter at reasonable intervals. The question is, what more is demanded of this system if the guarantee of an effective remedy, in a case where continued detention has become unlawful, that Article 5(4) provides is to be satisfied?”
31.  He continued
“21. ... Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirements of procedural fairness. How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate, and to set its own timetable for the information that it needs to be made available. It is entitled to expect cooperation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not in itself mean that there will be a breach of Article 5(4). As in the case of Article 5(1)(a), it will only be if the system which the statutes here laid down breaks down entirely, because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary, that the guarantee that Article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages.”
COMPLAINTS
The applicant complains under Article 5 § 4 of the Convention of a continuing breach of his right to a speedy review of the lawfulness of his detention due to the delays in his case being heard by the Parole Board.
He further complains under Article 13 that he had no effective remedy in respect of the violation of his rights under Article 5 § 4 as the domestic courts refused to grant a declaration and mandatory relief.
QUESTIONS TO THE PARTIES
1. Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? In particular, did the length of the proceedings in the present case comply with the “speed” requirement of Article 5 § 4 of the Convention?

2.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 5 § 4, as required by Article 13 of the Convention?