Bowen v Secretary of State for Justice

Factual and Procedural Background

This appeal arises from the dismissal by Judge Whipple on 5 August 2016 of the appellants' judicial review claims challenging the lawfulness of their detention and alleged breaches of public law duties and Article 5 of the European Convention on Human Rights ("ECHR"). Both appellants were convicted of serious offences, with the first appellant sentenced to life imprisonment with a minimum term of 14 years, and the second appellant sentenced to imprisonment for public protection ("IPP") with a minimum term of 3 years. The minimum custodial terms expired in August 2011 and May 2013 respectively.

Following expiry of their minimum terms, the Parole Board reviewed their cases in October 2014 and March 2015. In each case, the Board directed release subject to licence conditions, including residence at specified Approved Premises ("APs")—specifically Mandeville House ("MH") in Cardiff. Both appellants experienced delays in placement at MH after the Board's release directions: 69 days for the first appellant and 118 days for the second appellant. They resided at MH post-release for approximately 8 and 11 weeks respectively before broader community release.

The appellants contended that the delay in release due to waiting for MH placement breached section 28 of the Crime (Sentences) Act 1997 ("CSA 1997"), Article 5 of the ECHR, and the public law duty identified in James v United Kingdom (2013) 56 EHRR 12. The judge dismissed these claims. The appellants sought permission to appeal on four grounds, with permission granted only on the construction of section 28. The appeal and applications for permission on other grounds were heard together, with further permission refused.

Legal Issues Presented

1. Whether section 28 of the Crime (Sentences) Act 1997 requires immediate release upon the Parole Board's direction or permits conditional release contingent on availability of licence conditions such as Approved Premises.
2. Whether detention after the Parole Board's direction for release breaks the causal connection to the original sentence, rendering continued detention incompatible with Article 5(1) ECHR.
3. Whether detention that ends only when the executive makes a place available at Approved Premises is compatible with judicial control over detention as required by Article 5(4) ECHR.
4. Whether the public law duty to protect liberty by ensuring a sufficient rehabilitation system (the James/Walker duty) applies to provision of Approved Premises.
5. Whether there was a breach of the public law duty due to under-provision of Approved Premises causing delay in release.

Arguments of the Parties

Appellants' Arguments

• Section 28(5) imposes an immediate duty on the Secretary of State to release prisoners as soon as the Parole Board directs release, not conditional upon availability of Approved Premises.
• Delay in release following the Board's direction was excessive and unlawful.
• Continued detention after the Board's direction breaks the causal connection with the original sentence, violating Article 5(1) ECHR.
• Detention contingent on executive availability of Approved Premises breaches judicial control over detention under Article 5(4) ECHR.
• The public law duty to protect liberty applies to provision of Approved Premises, and resource limitations causing delay breach this duty.
• The judge erred in failing to find under-provision of Approved Premises and excessive delay.

Respondent's Arguments

• Section 28 must be construed to allow reasonable time for implementation of licence conditions, including placement at Approved Premises.
• Release conditioned on residence at Approved Premises is lawful and consistent with public protection.
• The delays in these cases were reasonable given the circumstances, including appellants' preferences and availability.
• The Parole Board's directions are subject to conditions integral to the decision to release; immediate unconditional release is not mandated.
• There was no breach of public law duty or Article 5 ECHR as the release occurred within a reasonable timeframe.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
James v United Kingdom (2013) 56 EHRR 12	Public law duty to protect liberty and ensure rehabilitation and progression to release.	Appellants relied on this case to argue a duty to provide Approved Premises without undue delay; the court rejected its application here.
R (Sturnham) v Parole Board [2010] AC 254	Interpretation of statutory provisions governing parole and release.	Referenced to caution against rewriting statutory provisions; supported appellants’ argument on statutory construction but court found limited assistance.
Thet v DPP [2007] 1 WLR 2022	Ambiguity in criminal statutes should benefit the defendant.	Appellants cited to argue for a narrow statutory interpretation favoring immediate release; court did not accept this approach.
R (James & ors.) v Secretary of State [2010] 1 AC 553	Continued detention lawful until Parole Board directs release; direction breaks causal connection.	Appellants used to argue detention post-release direction is unlawful; court rejected this in context of conditional release.
R (Faulkener & Sturnham) v Secretary of State for Justice [2013] 2 AC	Lawfulness of detention dependent on Parole Board’s direction; conditions on release.	Appellants cited to support immediacy of release; court found limited direct applicability.
R (Robinson) v Parole Board [1999] Prison LR 118	Parole Board may adjourn to facilitate release but cannot reopen risk assessment.	Supported respondent’s submission that reasonable short delay to implement release conditions is permissible.
R (Elson) v Greater Manchester Probation Trust [2011] EWHC 3692 (Admin)	Section 28 does not require immediate release without reasonable time to implement conditions.	Adopted by court to support view that immediate release without conditions is impractical and not intended by Parliament.
R (Kaiyam) v Justice Secretary [2015] AC 1344	Public law duties of reasonableness and proper system operation by Secretary of State.	Used to articulate public law duty to avoid unreasonable delay in implementing Parole Board directions.
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223	Standard of unreasonableness in public law (Wednesbury unreasonableness).	Referenced to frame standard for evaluating reasonableness of delay in release.
Smech Properties Ltd. v Runnymede BC [2016] EWCA Civ 42	Appellate review of first instance factual findings and deference to trial judge.	Applied to emphasize deference to judge’s evaluation of reasonableness of delay.
Assicurzioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577	Scope of appellate review of factual and evaluative decisions.	Used to guide appellate approach to reviewing judge’s evaluation of delay and reasonableness.

Court's Reasoning and Analysis

The court first examined the statutory language of section 28 of the Crime (Sentences) Act 1997. It held that the Parole Board’s direction to release is conditional upon the Board being satisfied that continued detention is no longer necessary for public protection, and that release may be subject to licence conditions essential for managing risk, including residence at Approved Premises. The court found that the statutory scheme contemplates that release will not be immediate if necessary conditions cannot be promptly implemented.

The court rejected the appellants’ argument that the Secretary of State must release immediately upon the Board’s direction regardless of the availability of Approved Premises. It reasoned that requiring immediate unconditional release would be impractical and contrary to the statutory purpose of protecting the public. It noted that the Board’s decisions in these cases explicitly conditioned release on residence at MH, and that the Secretary of State’s duty is to effect release within a reasonable timeframe consistent with those conditions.

The court further accepted the reasoning of Langstaff J in R (Elson) that the statutory scheme does not contemplate holding Approved Premises places indefinitely in case release is directed, nor does it require immediate release without the risk management conditions in place.

On the reasonableness of the delay, the court gave significant deference to the first instance judge’s factual findings. It noted the lengthy minimum terms served, the appellants’ preferences for specific Approved Premises near family and support networks, and the efforts made to find alternative placements. The judge’s conclusion that the 69-day and 118-day waits were not excessive or unreasonable was upheld as not plainly wrong.

The court rejected the appellants’ contention that the delays breached the public law duty derived from James and Walker, finding no evidence that national under-provision of Approved Premises caused the delay in these individual cases. It also refused permission to appeal on grounds alleging breach of Article 5 ECHR related to causal connection and judicial control over detention, reasoning these issues were resolved by the court’s construction of section 28 and the nature of the Board’s directions.

Holding and Implications

The court DISMISSED the appeal and refused permission to appeal on the additional grounds.

The holding confirms that under section 28 of the Crime (Sentences) Act 1997, the Parole Board’s direction to release a life or IPP prisoner may be subject to necessary licence conditions, such as residence at Approved Premises, and that the Secretary of State’s duty to release arises once those conditions can be reasonably implemented. Immediate unconditional release upon the Board’s direction is not mandated where risk management conditions are integral to the decision.

The decision emphasizes the importance of balancing public protection with the liberty interests of prisoners, allowing for reasonable delays to implement risk management plans. The court’s deference to the first instance factual findings signals that appellate courts will not lightly overturn reasonableness assessments of release delays absent clear error.

No new precedent was set concerning the application of the James public law duty or the interpretation of Article 5 ECHR beyond the specific statutory context of section 28 release conditions. The direct effect is to uphold the lawfulness of the appellants’ detention periods pending placement at Approved Premises as consistent with statutory and human rights requirements.