R (Betteridge) v Parole Board [2009] EWHC 1638 (Admin)

(1) Article 5(4) requires a speedy hearing to determine the lawfulness of detention, independently of any consideration of arbitrariness under Article 5(1). (2) The delay in listing the claimant's Parole Board hearing, due to a lack of panel members, breached his Article 5(4) right to a speedy hearing; however, as there had been no chance of release, there was no claim in damages. (3) The steps being taken to fix the systemic failures, and the ongoing problems, mean that further Article 5(4) delay claims are not appropriate unless in very special circumstances.

Summary

The claimant's 5-year tariff was due to expire on 18/12/08. A Parole Board advisory opinion on 15/9/08 was that he was not fit for a move from Category C to open conditions. On 13/10/08, just two months before tariff expiry, a referral was made to the Parole Board.

On 20/2/09 the hearing was listed for a date in May, but this proved impossible due to an inability to provide panels. In his 5/3/08 submissions the claimant argued for open conditions rather than release. By the time of the court hearing, the earliest possible (but not guaranteed) date was September 2009.

The Parole Board accepted that there had been a breach of Article 5(4). The Secretary of State argued that there was no breach as there had been no chance of release and therefore detention had not become arbitrary.

Held:

Article 5(4) requires a speedy hearing to determine whether detention is lawful. This is independent of any consideration of arbitrariness under Article 5(1), and still applies where the inevitable conclusion is that detention is lawful. The advisory opinion could not suffice as it was pre-tariff and could not have ordered discharge.

There had been a breach of Article 5(4) as the delay was caused by a lack of necessary manpower. However, there was no claim for damages as the claimant would have had no hope of release had the hearing taken place speedily.

Various steps have recently been taken to improve the systemic failure to provide speedy hearings, although none have yet had any effect. Under the Parole Board (Amendment) Rules 2009: an ICM member can make binding directions; the absolute right to an oral hearing has been removed; and a single member, or a panel without a judicial member, can determine certain matters. The Criminal Justice and Immigration Act 2008 has reduced the imposition of IPPs to more serious cases, thereby reducing the Board's workload. Steps are being taken to recruit more judicial and other members. A more flexible approach to listing priority cases is apparently in place, for example to list real candidates for release sooner.

In the light of what is being done, Article 5(4) claims are not now appropriate, unless there are special circumstances or something has gone badly wrong: any claims are unlikely to achieve any sensible redress, as the reforms have made no difference yet, and any possible benefit to the claimant (by queue-jumping) would disadvantage those who had not made a claim.