Practice and Procedure


PUBLISHED November 6, 2003

Whether a prisoner's 15 month delay between parole board reviews was excessive had not been satisfactorily determined on refusal of his application for judicial review, but his appeal was dismissed as he had now been released and had claimed no relief.Appeal from the decision of Pitchford J that there had been no breach of public duty on the part of either respondent ('the Home Secretary' and 'the parole board') in keeping the appellant ('M') in detention for longer than his tariff. M received a mandatory sentence of life imprisonment for murder in April 1974. He was released on parole on two occasions but was recalled each time upon revocation of his licence. M had therefore remained in detention long after his 16 year tariff had expired. In January 2000, the parole board recommended that M remain in closed conditions with a further review in 12 months. That review was not completed until 19 April 2002 when the parole board recommended that M be tested again in open conditions. He was released on parole on the morning of the instant hearing upon the acceptance, by the Home Secretary, of the parole board's recommendations. Meanwhile, in Dennis Stafford v UK (2002) 35 EHRR 1121 the European Court of Human Rights held that the UK's regime for the release of mandatory lifers was in breach of Art.5(4) of the European Convention on Human Rights and effectively required the UK to assimilate the regime to that already in place for discretionary lifers. In response to that decision it was announced that, pending the passing of the Criminal Justice Bill 2002-2003, the parole board would continue to make recommendations which, if favouring release, the Home Secretary would normally accept. M brought an application for judicial review, arguing that the delay in reviews was excessive and in breach of Art.5(4). The judge rejected M's application. He held that the Home Secretary had not instituted an administrative procedure calculated to breach Art.5, but was dealing with an interim period required to bring his procedure into compliance with the decision in Stafford (supra).HELD: (1) The judge's reasons for rejecting the application were founded entirely on the practicalities of affording M an earlier review. They did not involve, as they arguably should have, the prisoner's interests and the requirements of the law. (2) It was clear from the Strasbourg jurisprudence that a review date must itself be subject to review if the prisoner's progress warranted it. The judge's decision was that any earlier review than had been arranged was impractical having regard to the novelty of the situation in Stafford (supra), the finite resources available to the parole board to cope with it and the needs of other life sentence prisoners. There was no finding that, but for those difficulties, the delay of 15 months would have been too long. It followed from the Court of Appeal's decision in R v (1) Secretary of State for the Home Department (2) Parole Board, ex parte Leo Robert Noorkoiv (2002) EWCA Civ 770 that if there was excessive delay between reviews, logistical difficulties would not be an answer to it. (3) Whether the 15 month delay was excessive had not been satisfactorily determined. The judge gave no consideration to the significance of the Strasbourg jurisprudence or to whether, on the facts, M's case warranted an earlier review. There was no value in now doing so. M had his review and was released and there was no claim for any relief that would be of use to him. (4) A correct approach would not necessarily have resulted in a finding of principle in M's favour.Appeal dismissed.

[2003] EWCA Civ 1561