Abstract
On 9 November 2005, the Claimant was sentenced to 20 years imprisonment following convictions for possession with intent to supply class A drugs and the possession of firearms (at [10]). On 4 February 2016, the Claimant was released on licence however this was revoked by the Secretary of State for Justice on 30 July 2017 following allegations of further offending involving drugs. On 26 January 2018, he was convicted of the recall offences and sentenced to a further 10 years imprisonment (at [11]). The Claimant was further sentenced to four months imprisonment in 2019 for possession of a mobile telephone whilst in prison (at [12]).
As a recalled prisoner, the Claimant was eligible for release once he had served the appropriate custodial terms arising from his sentence. As a result, the Secretary of State for Justice referred the Claimant's case to the Defendant. On 25 January 2023, the Defendant considered the Claimant's case by way of a paper review and concluded that it was necessary for the protection of the public that he remained confined and therefore made no direction for release (at [13]). The Claimant appealed the decision and applied for an oral hearing. This was successful and the Defendant directed that the Claimant's case would be considered by way of an oral hearing (at [14]).
The decision dated 23 March 2023 issued various directions which, it was said, ‘might be added to or varied by the Oral Hearing Panel Chair’ (at [15]). The directions included logistical directions which would assist the Defendant in listing the oral hearing in both a timely and efficient manner. These directions provided that ‘This hearing should be listed for 3 hours 30 minutes’ (at [15]). The Defendant subsequently listed the Claimant's oral hearing for 23 February 2024 at 10:00. Prior to the oral hearing, the designated Panel Chair did not issue any directions that added to or varied the directions as set out in the directions dated 23 March 2023 (at [16]).
In advance of the oral hearing, the Claimant's solicitor requested that the oral hearing commence at 11:00, rather than 10:00, as they were travelling from London to HMP Leyhill (an open prison located in Gloucester) however this was refused by the Panel Chair (at [16]). On the day of the hearing, there was a delay in granting the Claimant's solicitor access to the prison to the extent that the oral hearing did not commence until 10:20 (at [17]).
When the oral hearing commenced, the Panel Chair informed all those present that the hearing ‘would not and could not’ go beyond 12:00 as they had two other oral hearings listed for that day. In total, the oral hearing would be limited to 100 min (rather than the 3½ hours previously directed) (at [18]). The Claimant's solicitor, according to their witness statement, decided to ‘press ahead in haste or face a deferral of up to 6 months’ (at [20]). On 14 March 2024, the Defendant issued a decision that it was necessary for the protection of the public that he remained confined and made no direction for release. Nothing was said in the decision about the fact that only 2 hours (10:00–12:00) had been allocated for a hearing when the original time estimate had been 3½ hours (at [21]).
The Claimant sought to judicially review the decision of the Parole Board not to release him on a sole ground: that procedural fairness required a longer hearing than the 100 min it was allowed, and the 2 hours that it had been listed (at [30]). The Defendant filed an acknowledgement of service in which they stated that they would remain neutral but emphasising that the Claimant's hearing was the first of three hearings listed for that day and there could be no delay if all hearings were to go ahead and that they were not responsible for any delays in accessing the prison (at [4]). Permission was granted by the Single Judge on 29 August 2024 (at [5]).
At the substantive hearing of the claim for judicial review, the Claimant was represented by counsel however neither the Defendant nor the Secretary of State for Justice (as an Interested Party) was represented.
Commentary
The current trend operated by the Parole Board has been towards ‘a need for speed’, in comparison to a previous (unintended) trend which was characterised by delays (see, as only one example, R (Betteridge) v Parole Board [2009] EWHC 1638 (Admin) and Betteridge v United Kingdom (2013) 57 EHRR 7. This claim for judicial review starkly illustrates the detrimental effect that such a ‘need for speed’, whereby multiple oral hearings are listed before the same panel on any given day, can have. In reaching his conclusions upon procedural fairness, the Deputy High Court Judge emphasised that ‘The reality here is that too many hearings were being compressed into a single day by the Defendant’ (at [40]).
What was unclear in the facts of the case, given the lack of engagement from the Parole Board, was whether this was compression of too many hearings on one day was just a one-off aberration or whether it regularly occurs and is therefore a systemic problem. From my own experience, it is not in itself unusual for a well prepared and experienced panel member sitting alone to conduct three oral hearings upon any given day, each with a 2-hour time estimate, with little by way of overly complex issues, and staggered at regular intervals of 10:00, 12:30 and 15:00. Indeed, this is a good use of resources for recall cases which may turn entirely upon a dispute as to facts and which have only two professional witnesses (such as the officers responsible for the prisoner's management in custody and the community).
What is not acceptable, as this claim makes clear, is for the Parole Board to list three oral hearings in one day where one of these hearings has a time estimate of 3½ hours, regardless of the experience of the panel members. A time estimate of 3½ hours given at the Member Case Assessment stage of the case suggested that this case was not a run-of-the-mill case but one with more complex issues and with more than two professional witnesses (e.g. a psychologist). This point was proven in the facts of the case. Ultimately, this highlights that the Parole Board process is not a mechanical process, no matter how much those operating the system seem to be attempting to make it so.
It is not only in the listing of cases, however, in which the Parole Board has also been operating ‘a need for speed’ trend. The Parole Board is required, including by statute (e.g. Crime (Sentences) Act 1997, s. 28(7)(b)) and the ECHR (Article 5(4)), to conduct a speedy review of detention however such requirements are honoured more in their breach than in their observance. For example, Article 5(4) provides that: Everyone who is deprived of his liberty by arrest or detention
Ultimately, there are no winners in either case. There are those who benefit and those who suffer detriment whether the Parole Board acts with ‘a need for speed’ or with delay however regardless of whether there is speed or delay what matters is that a prisoner is given a fair crack of the whip and that time does not play any role in that.
