Bate, R (On the Application Of) v Parole Board of England And Wales

Factual and Procedural Background

The Plaintiff, who was serving an imprisonment for public protection (IPP) sentence imposed in 2008, sought judicial review of alleged unlawful delay by the Defendant Parole Board in reviewing his continued detention. The Plaintiff claimed a violation of his rights under Article 5(4) of the European Convention on Human Rights (the Convention), seeking declaratory relief and damages. Permission to bring the claim was granted on 1st February 2018.

The Plaintiff committed serious offences in 2005 and 2006, including possession with intent to supply a class A controlled drug and two offences of wounding with intent. He was sentenced in 2008 as a dangerous offender to IPP sentences with a minimum tariff of 3 years 5 months. His minimum period expired in 2010, after which the Secretary of State for Justice (SSJ) was under a duty to release him on licence once the Parole Board directed release.

The Plaintiff suffered from various mental health issues including ADHD, Autistic Spectrum Disorder, tic disorder, and mild learning difficulties. He was transferred to open prison conditions twice but was returned to closed conditions after absconding and other concerns. Multiple parole reviews took place, including an oral hearing in December 2014 where release was not directed due to concerns about his behaviour and risk.

In January 2015, the Plaintiff was informed his next parole review would be in February 2016 following a 14-month review period. The SSJ formally referred his case to the Parole Board in June 2015. An oral hearing was directed in November 2015 to be listed at the earliest available date, but the hearing did not occur until June 2016, at which time the hearing was deferred to allow for further reports and arrangements related to the Plaintiff’s substance misuse and mental health needs.

The deferral was set for three months with directions for updated reports and attendance of relevant witnesses. Despite efforts to arrange witness availability, the next hearing did not take place until March 2017, approximately nine months after deferral and over a year after the target review date. The delay prompted multiple communications from the Plaintiff’s solicitor seeking an earlier hearing.

The hearing in March 2017 proceeded with evidence from various witnesses and concluded with the Parole Board directing the Plaintiff's release with licence conditions, including residence at a rehabilitation facility. The Plaintiff then initiated judicial review proceedings challenging the delay in listing the hearing, the Parole Board’s policies on prioritisation and expedition, and alleging breaches of Article 5(4) rights.

Legal Issues Presented

1. Whether the Defendant Parole Board unlawfully delayed the Plaintiff’s parole review hearing in breach of Article 5(4) of the European Convention on Human Rights.
2. Whether there was a systemic failure by the Defendant to maintain a system for prompt parole reviews.
3. Whether the Defendant’s policy on prioritisation of parole hearings was unlawful, particularly in ignoring support for release and legitimate expectations regarding hearing timetables.
4. Whether the Defendant’s decision refusing expedition of the Plaintiff’s deferred hearing was unlawful.

Arguments of the Parties

Appellant's Arguments

• The Parole Board breached Article 5(4) by failing to provide a timely parole hearing after the target date set by the SSJ.
• There were two distinct periods of unlawful delay: from 1st March to 22nd June 2016, and from 1st October 2016 to 22nd March 2017.
• The Plaintiff had a legitimate expectation, based on the deferral hearing, that the postponed hearing would occur within three months, which was not honored.
• Lack of resources, including shortage of specialist psychiatric members, does not excuse breaches of Article 5(4), relying on precedent.
• The Parole Board's policy on prioritisation unlawfully ignores positive support for release and legitimate expectations as factors for expedited listing.
• The refusal to expedite the deferred hearing was unlawful, particularly given the Plaintiff’s mental health vulnerabilities and the agreed timetable.
• The Plaintiff is entitled to damages for anxiety, distress, and delayed liberty caused by the unlawful delay.

Appellee's Arguments

• The claim regarding the first period of delay was out of time and should be dismissed on procedural grounds.
• The target date set by the SSJ is important but not determinative; reasonable intervals depend on case circumstances.
• The delay in the first period was reasonable in light of the Plaintiff’s risk factors and the need to reassess following new admissions of drug use.
• The second period of delay was caused partly by the shortage of specialist psychiatric members and partly by other cases having higher priority.
• The Parole Board has taken significant steps to reduce delays and manage its backlog, including revisions to listing and prioritisation policies.
• The policy not to prioritise solely on the basis of support for release is rational and consistent with fairness to all prisoners.
• The refusal to expedite the deferred hearing was lawful as there was no medical evidence of adverse mental health effects at that time.
• Any damages submissions should be deferred until after the court’s decision on liability.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reviewing the legal framework under Article 5(4) and relevant case law, establishing that the Parole Board must conduct timely reviews upon tariff expiry and subsequently at reasonable intervals, generally around one year. The SSJ’s setting of a target review date is important but not determinative; the court must independently assess reasonableness.

The court found that the Plaintiff’s parole review hearing was delayed beyond the SSJ’s target date of February 2016, with no satisfactory explanation for the four-month delay until June 2016. The court rejected the Defendant’s argument that the Plaintiff’s admission of drug use shortly before the June hearing justified this delay, noting the hearing should have been completed before the admission.

The deferral of the June 2016 hearing was reasonable given the need for updated reports and risk assessments. However, the court found the subsequent nine-month delay until March 2017 was excessive and unjustified. The Defendant’s explanations focused on a shortage of specialist psychiatric members and competing priorities, both reflecting resource constraints.

Applying the principle from Noorkoiv that lack of resources does not excuse breaches of Article 5(4), the court held the Defendant breached the Plaintiff’s rights by failing to provide a speedy hearing during both periods of delay.

Regarding the alleged legitimate expectation of a hearing within three months of deferral, the court accepted the Plaintiff’s and his solicitor’s understanding that the deferral was for approximately three months. The court rejected the Defendant’s interpretation that the hearing would only be listed after October 2016 with no assurance of an earlier date.

The refusal to expedite the hearing was held to be unlawful, as there were exceptional circumstances including the Plaintiff’s mental health and the agreed timetable. However, the court declined to grant separate relief on this ground, considering damages sufficient.

On systemic failure and policy grounds, the court acknowledged the backlog and resource shortages but declined to grant a declaration affecting other cases, noting improvements had been made. The court accepted that it is within the Parole Board’s discretion to devise prioritisation policies but indicated that ignoring positive support for release may risk breaching Article 5(4) rights in some cases. Nevertheless, no declaration was granted on this point given the circumstances of this case.

Holding and Implications

The court’s final decision was to find in favour of the Plaintiff on grounds 1 and 4, holding that the Defendant unlawfully delayed the parole hearing and wrongfully refused expedition. The Plaintiff was awarded damages to compensate for anxiety, frustration, and delayed liberty caused by the unlawful delay.

DISPOSED OF: The claim succeeded in part with damages awarded for breach of Article 5(4) rights relating to the delay periods identified. Relief was refused on grounds relating to systemic failure and policy unlawfulness beyond the individual case. No new precedent was set beyond the application of established principles. The court directed the parties to seek agreement or make submissions on the quantum of damages within 21 days.