Hamish Arnott and Simon Creighton report on the new policy regarding the secretary of state’s representation at parole hearings and case law on his role in judicial review, transfers to open prison, video links and access to justice, category A reviews, and cases in the European Court of Human Rights.
Secretary of state’s representation at parole hearings
Although the secretary of state for justice is formally a party to proceedings before the Parole Board (see rule 2 of the Parole Board Rules 2016 SI No 1041 (PBR)), it has in recent years become increasingly rare for him to be represented at hearings. One of the outcomes of the Worboys
judgment (see July/August 2018 Legal Action
31) has been the review of the circumstances in which the secretary of state will be represented. Although he was represented in that case, there was concern over his role, in particular the failure to ensure that relevant material was contained in the dossier provided to the board.
The new policy, Use of secretary of state representatives in parole proceedings – criteria
(Ministry of Justice/HM Prison & Probation Service, 28 June 2018), now clarifies when the secretary of state will provide a representative in parole hearings, who will ‘usually be an experienced probation practitioner’ although counsel may be used when ‘the case is likely to give rise to non-routine questions of law and/or counsel’s particular expertise in inquisitorial questioning may be helpful’. Cases will be considered individually, though generally a representative will be used where one or more of the following criteria are met:
•The case is particularly complex due to the nature and volume of the evidence and/or the report writers have put forward conflicting views on the risks the prisoner presents.
•Prison and probation witnesses require preparation and support due to the nature of the case or approach taken by the offender’s legal representatives.
•In cases where an offender has been recalled to custody and the offender is disputing that there was a proper and lawful basis for that recall. In such cases, the secretary of state’s representative will explain why officials agreed formally to revoke the offender’s licence.
Secretary of state’s role in judicial review
•R (Davenport) v Parole Board
2 March 2018
In this case, a recalled mandatory lifer challenged the reasons given by the Parole Board for upholding the recall decision. The prisoner argued that the board’s reasons were legally deficient as: they failed to analyse the evidence; there were no proper findings of fact in relation to the contested allegations; and there was no proper explanation as to how the findings made demonstrated a risk of serious harm.
The Parole Board, in line with its litigation strategy, adopted a neutral stance in the judicial review. At the hearing the judge, without further argument, accepted that the board’s decision should be quashed absent any answer to the prisoner’s complaints. However, the judge was concerned that the secretary of state for justice had not been included as an interested party in the proceedings. As the secretary of state was not represented at the parole hearing and given that the grounds review focused solely on the board’s decision, the prisoner’s legal representative had not thought it necessary to do so.
The judge noted that as the secretary of state is a party to parole hearings under the PBR (see above), Civil Procedure Rules Practice Direction 54A para 5.1 applied. This states: ‘Where the claim for judicial review relates to proceedings in a court or tribunal, any other parties to those proceedings must be named in the claim form as interested parties …’
The judge therefore directed that the claimant should amend the claim form and serve on the secretary of state, which would allow the secretary of state to indicate whether there was any intention to defend the claim, failing which an order would be made quashing the board’s decision. In the event, the secretary of state indicated that he did not wish to defend the claim.
Comment: This case is a clear reminder that the secretary of state must always be included as an interested party in challenges to parole decisions. The fact that, in recent years, representation at hearings by the secretary of state has been exceptional (which may well change in light of the above policy) has led to a widespread practice of not doing so unless there was such representation or unless the claim also challenged a secretary of state’s decision. A failure to do so in light of this decision might risk costs sanctions of any delay caused.
The case also demonstrates one of the problems with the board’s litigation strategy where it indicates it will take a neutral stance. On any view, the deficiencies in the board’s reasons in this case were clear. The grant of permission stated that in the decision ‘there appears to be no analysis of the evidence … [or] findings related to the issues’ (see para 3 of judgment). The board was invited to review its stance following the grant of permission but refused to do so, which caused several months’ further delay during which time the prisoner remained detained. Clearly, the board should review the merits of claims where it has adopted a neutral stance once permission has been granted so that appropriate cases can be conceded, and its litigation strategy should be amended accordingly.
Transfers to open prison
•R (Hutt) v Parole Board
 EWHC 141 (Admin),
17 January 2018
When considering whether to recommend that a prisoner serving an indeterminate sentence should be transferred to an open prison (such recommendations are not binding on the secretary of state for justice), the board is required to apply directions
given by the secretary of state as to matters to take into account. These directions focus primarily on risk to the public, but also require risk to be balanced against the potential benefits to the prisoner of transfer.
This is another in a long line of cases (see, for example, R (Vigrass) v Parole Board  EWHC 3022 (Admin)
; March 2018 Legal Action
16) where the court has quashed the decision of the board for failing in its reasons to demonstrate that the balancing exercise has been carried out. Although the board in this case set out the test to be applied from the directions there was ‘no identification by the panel, expressly or otherwise, of the specific factors which should have been taken into account in the separate balancing exercise which was to have been undertaken when considering a transfer to open conditions, as opposed to the test to be applied when considering whether to release the applicant on licence’ (para 16).
Video links and access to justice
•R (Michael) v Governor of Whitemoor Prison
Administrative Court, unreported,
26 June 2018
The prisoner challenged the governor’s decision that he should attend a hearing at the county court by video link, rather than in person. He was a life-sentenced prisoner held in a high security prison who was bringing proceedings against solicitors seeking documents required in his application for permission to appeal against conviction. He had previously resisted a strike-out application where he appeared by video link.
The judge held that the decision did not breach the prisoner’s right to a fair trial under article 6 of the European Convention on Human Rights (ECHR). While article 6 did require a litigant to be able to present their case effectively, and for there to be equality of arms, the judge was satisfied that these requirements could be met by use of video link on the facts of this case.
The judge also rejected an argument that the Prison Service policy on production at court (Prison Service Order 4625) unlawfully fettered the governor’s discretion by allowing security risk to outweigh the interests of justice (para 4.2). The judge considered that the policy was sufficiently flexible as it states that ‘[i]f it appears that the prisoner’s case will suffer detriment if they do not attend, this would be a strong case for allowing the production’ (para 2.2).
Category A reviews
•R (Steele) v Secretary of State for Justice
26 March 2018
This was a challenge to a decision to refuse a category A prisoner an oral hearing during the course of his category A review. The claimant had received a life sentence in 1998 for murder with a tariff of 23 years and had been classified as a category A prisoner throughout his sentence. He maintained his innocence.
In 2016, the local advisory panel (LAP), which is composed of prison staff and chaired by a prison governor, considered his case and recommended that he should be downgraded. This recommendation was rejected by the defendant. At the next annual review in 2017, the LAP again recommended downgrading. The claimant had not completed work designed to address his offending behaviour and felt unable to complete work at his current prison as he felt unable to work with staff there. Nevertheless, the LAP noted that his offences had been committed 25 years ago and that his age, maturity and rejection of a pro-criminal lifestyle, combined with his exemplary prison conduct, led them to conclude that he could be safely downgraded to pursue this work in a category B prison.
This recommendation was also rejected. The director did not consider that prison behaviour was sufficient to demonstrate a significant reduction in risk against the background of a refusal to discuss or address the risk factors related to his serious offending. The test for downgrading was to be applied to the risk that would be posed if the prisoner was unlawfully at large and not in a lower security prison and this test had not been met.
The claimant relied on the guidance in Prison Service Instruction (PSI) 08/2013, which addresses the circumstances in which oral hearings might be appropriate. He contended that four of the relevant criteria had been met in his case:
1there was a factual dispute about his willingness and ability to attend relevant offending behaviour courses;
2there was a dispute in respect of expert opinion insofar as the LAP had relied on and endorsed the view of expert psychologists;
3he had been a category A prisoner for more than 20 years and was now 74 years old; and
4the case had reached an impasse.
The judgment rejected the contention that there was a factual dispute and considered that the question of whether there has been a change in attitudes is a matter of assessment rather than fact. On the question of a dispute on the expert opinion, although it was accepted that the LAP is an expert body, the judgment noted that the psychological opinions were not specifically referred to in the 2017 decision and that a disagreement between the LAP and the defendant did not in itself constitute a dispute between experts.
Turning to the question of how the length of time that had been served was dealt with, the judgment expressed concern that the decision-maker had wrongly interpreted the policy to require there to be some other compelling reason to hold an oral hearing other than just the length of time served. However, taken in the round, the judge was unconvinced that an oral hearing would actually add anything to the decision-making process.
On the final point concerning impasse, it was accepted that the case had reached an impasse due to the claimant’s position in relation to the conviction and the proposals for work that were available to him. However, the way to resolve that impasse was apparent without the need to convene an oral hearing.
Comment: The judgment is coherent but is, in some aspects, a triumph of form over substance. The circumstances in which an oral hearing might be necessary, as set out in PSI 08/2013, were all met in this case and yet there was a retreat from the broader understanding of the benefits of an oral hearing as an aspect of the legitimacy of the decision-making process into a technical analysis of what might be uncovered through an oral hearing. This approach has a degree of circularity, particularly in circumstances where the critical issue is very often the individual’s attitudes and opinions, which are not always capable of being accurately distilled into a written report. The approach to the impasse issue is slightly more troubling as the answer provided in the judgment is for the prisoner to undertake offending behaviour work even though the impasse arises from the maintenance of innocence.
Recent cases in the European Court of Human Rights
Article 5 and parole
•Etute v Luxembourg
30 January 2018
This is potentially a very important case concerning the applicability of article 5(4) to determinate parole decisions which, unfortunately, is only published in French (although one of the concurring judgments is written in English). The case concerned a prisoner who had had the benefit of conditional release under article 100 of the Luxembourg Criminal Code. This article confers a discretionary power of release during the course of a determinate sentence. If the conditional release is later revoked, the individual is recalled to prison and restarts their custodial term from the point of release (ie, the time spent in the community under supervision does not count towards the period to serve back in custody).
The court’s approach was that the decision to recall the prisoner to custody was a new event made on the basis of new factual developments:
The applicant’s re-incarceration with effect from 4 November 2015, for the purpose of serving the portion of sentence remaining at the time when he was released subject to conditions, depended on a new decision, namely that to cancel the conditional release. This decision specifically arose from the observation that the applicant was no longer respecting the conditions attached to his conditional release, namely not to commit a new offence and to stop frequenting places where drugs were present ... In these circumstances, the court considers that the question concerning respect of the conditions imposed on the applicant under the conditional release was crucial in determining the legality of his detention from 4 November 2015. The court considers that this is a new question regarding the re-incarceration following cancellation of the conditional release. The internal court order should therefore allow the applicant access to a judicial appeal that satisfies the requirements of article 5(4) of the convention to resolve this question (para 33, emphasis added).
The decision is important as it appears to conflict directly with previous decisions that have held that for prisoners serving determinate sentences, release on licence and recall do not engage article 5(4) as the original criminal sentence authorises detention until the sentence expiry date. As the original sentencing process satisfies the requirements of article 5(1), no new issues under article 5 can arise during the currency of that sentence (see, for example: Brown v UK App No 968/04
, 26 October 2004, unreported; and Ganusauskas v Lithuania App No 47922/99
, 7 September 1999;  Prison LR 124).
Although the judgment does not address this apparent conflict, it is dealt with at some length by two concurring judgments. The first, from Judge Pinto de Albuquerque, expressly doubts the correctness of Brown
. The second, from Judge Kūris, also points to the divergence between Etute
and goes on to note the weight that was attached to Brown
by the Supreme Court in R (Whiston) v Secretary of State for Justice  UKSC 39
;  AC 176. In Whiston,
the Supreme Court had commented that article 5(4) does not apply to the recall of prisoners serving determinate sentences, albeit that in a dissenting judgment Lady Hale was of the view that the observations on determinate prison sentences should be treated as obiter as the case concerned home detention curfew.
: The judgment comes at an interesting time in the debate over article 5(4) and determinate sentences. The domestic courts have held that Whiston
is binding authority for the proposition that article 5(4) has no application to determinate prison sentences. As noted above, Whiston
had relied heavily on earlier decisions of the European Court of Human Rights, noting in particular that Brown
had not even crossed the admissibility threshold (see R (Youngsam) v Parole Board  EWHC 729 (Admin);
September 2017 Legal Action
19, a decision which is due to be considered by the Court of Appeal in December 2018). However, the problem of identifying a clear principle that can be cross-applied from one jurisdiction to another remains.
•Sokolov v Russia
28 November 2017
The applicant was serving a prison sentence of five years and was held in a prison 2,400 km away from his family. Shortly after his conviction his mother died and five months later his father also died. He was refused permission to attend either funeral by reference to the Russian law that made no provision either for a leave of absence for a remand prisoner or for attendance at a funeral held outside the region where the convicted prisoner was detained.
The court held that the Russian authorities did not give any consideration to the applicant’s individual situation, in particular the fact that he lost both of his parents in quick succession. The court considered that ‘the formal application of [these] legislative provisions, combined with a lack of genuine desire to find another solution enabling the applicant to attend his mother’s and father’s funerals, was incompatible with the state’s duty to carry out an individualised evaluation of his particular situation and to demonstrate that the restriction on his right to attend a relative’s funeral was “necessary in a democratic society”’ (para 48). Although the judgment recognises that restrictions on attending funerals do not in themselves breach article 8, on the particular facts of this case there had been a violation of article 8.
In a further finding, it was held that placing a convicted prisoner in a remote penal facility, given the long distances involved and the realities of the Russian transport system, affected his ability to maintain contacts with his close family and amounted to an interference with his right to respect for family life and so also amounted to a breach of article 8. The applicant also succeeded in further complaints concerning his pre-trial detention, including being held in a metal cage during that period.
•Peňaranda Soto v Malta
19 December 2017
In this judgment, the court reiterated the importance of confidential access to the court and other ECHR organs. Even though letters to lawyers may be opened in circumstances where there are concerns about illicit enclosures and where appropriate safeguards are in place, there is no such discretion in respect of the court. On the facts of this case, it was clear that some letters had been opened and this breached article 34 of the ECHR. The seriousness with which the court viewed this breach was reflected in an award of €3,000 compensation (even though the substantive complaint about an alleged violation of article 3 was not upheld).