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Rights of arsonist were breached by parole delay

30 September 2009

A convicted arsonist has won the right to compensation after the Parole Board kept him waiting for three months before telling him that he would be released.

Keith Pennington received an indefinite sentence for public protection (IPP) for arson, with a minimum tariff of a year and three months.

Delivering judgment in R (on the application of Pennington) v the Parole Board [2009] EWHC 2296 (Admin), Judge Pelling QC, sitting as a High Court judge in Manchester, said that the justice secretary’s policy was that prisoners with a tariff of less than three years were entitled to a review before the tariff expired.

He said that under article 5(4) of the ECHR, prisoners with indefinite sentences were entitled to take proceedings by which the lawfulness of their detention was decided “speedily”.

Judge Pelling said that all previous decisions concerning the impact of article 5(4) on the Parole Board had to be read subject to the House of Lords decision in Sec. of State for Justice v James [2009] 2 WLR 1149 (see Solicitors Journal, 12 May 2009).

He said there was disagreement on the impact of the ruling in James on claims for damages as a result of “pure delay”, where a Parole Board hearing had been delayed through lack of resources, or errors or omissions on the part of the board.

Judge Pelling distinguished the facts of James, which concerned the failure of the justice secretary to provide to prisoners the means by which that they could demonstrate to the Parole Board that they were no longer dangerous to the public.

“Delay to a hearing due to lack of resources and a fortiori where the delay is due to error or omission on the part of the board or its staff or members is capable of being a breach of article 5(4),” he said.

The judge said that a “speedy determination” in this case was one that should have resulted in a decision no later than the middle of January 2009, over three months before the decision was actually taken and communicated to the prisoner.

“It is not possible to be precise on these matters and it is clearly right that a margin of latitude ought to be accorded to a body such as the Parole Board before concluding that the point has been reached at which it can be said that it has failed to provide a speedy hearing in breach of article 5(4),” he said.

“However, given that liberty is in issue that margin cannot be very great.”

Melanie Plimmer, barrister at Kings Chambers in Manchester, acted for Pennington. She said that since the James ruling, the Administrative Court had suggested that article 5 claims should only be brought in special circumstances.

“The judge in this case is standing away from that reasoning and saying that where there is a delay and that has a direct impact on the liberty of the prisoner, any margin of appreciation should be narrow.”

Plimmer said the size of the damages awarded to her client would depend on whether the Strasbourg approach was used, in which case the amount would be limited to a few thousand pounds.

She said that although there were potentially hundreds more cases relating to prisoners with IPP sentences, she did not believe the floodgates had been opened.

“Each case will turn on its own facts,” she added.

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