Get out clause

The fundamental right to liberty and reviews of the legality of detention enshrined in article 5(4) ECHR cannot be ignored any longer.

In any civilised society it must be fundamental that a person sentenced to a period of imprisonment is released after serving the punishment due for the crime committed. The only proper exception to this is where the person is shown to remain a danger of serious harm to others.

The ECHR obliges the state to provide a speedy and prompt review of the legality of the person's detention after the expiry of the tariff, or punitive, part of the sentence has been served. This is particularly important for those whose offence did not merit life-long detention itself but who received an indeterminate sentence.

Until recently it seemed that the protection of this fundamental right was being eroded by the large-scale violation of article 5(4) promulgated by the under-resourced parole system in England and Wales.

Despite previous recognition of the problem, the Parole Board's annual report for 2009/10 records that it has not met its target for 80 per cent of hearings to proceed on time: only 32 per cent of cases are. The Ministry of Justice fares even worse in meeting its obligations; only supplying the required dossier on time in 21 per cent of cases.

It is now clear that the courts will not allow such failures to meet with no remedy for the prisoner who is denied his right to a timely review. This provides a welcome and necessary impetus to the authorities to really address the widespread failings still in existence several years after successful claims were first made by prisoners that established beyond doubt the inadequacies of the present administration of the parole system.

Delays and distress

In essence there are two bases for damages to be awarded to a prisoner who has been denied his parole hearing at the required time. Both bases have been considered in judgments delivered in December.

In (R) Faulkner v SSJ and Parole Board [2010] EWCA Civ 1434, the prisoner would have been released had he been given his hearing on time and the Court of Appeal has awarded damages for the delay period. Faulkner had completed his tariff period in April 2004 and been considered by the Parole Board in 2005 and 2007. He was entitled to a further review in January 2008. In preparation for that review the MoJ failed to prepare a skeleton dossier or refer the case to the board, nor to provide the full dossier for many months after the due dates for each step. Consequently the delay to the hearing convening was ten months.

The court rejected the argument that only if the system had broken down entirely and therefore detention itself become arbitrary could article 5(4) ECHR have been violated. This has finally laid rest to some misunderstanding of the House of Lords' decision in Secretary of State for Justice v James [2009] UKHL 22. The court also considered the question as to whether damages might follow for a loss of a chance to be released, or only if the court is satisfied that the prisoner would have been released earlier. The court concluded that damages will not follow merely for the loss of a chance, but will do so if the prisoner can show on the balance of probabilities that he would have had a decision in his favour at the time when the review should have taken place.

In R (Guntrip) v SSJ and Parole Board [2010] EWHC 3188 (Admin) the court considered the other recognised basis for an award of damages for a violation of article 5(4) ECHR. There had been a delay of two years in providing the tariff expiry review resulting from failures by both the secretary of state and the Parole Board. In fact the tariff was the same length, two years, so the period of imprisonment had been automatically doubled by the delay. The prisoner was awarded £1,200 to provide 'just satisfaction' for the distress, frustration, stress, and annoyance suffered during the unlawful delay.

The prisoner's largely successful and distinctly promising efforts on the courses he undertook will have added to his sense of frustration. His vulnerable mental condition would have made it more difficult to cope with the long period of delay and uncertainty.

While each case is fact specific on the question as to whether damages are required to provide just satisfaction, both cases reinforce the protection of article 5(4) ECHR and demonstrate that the state must take responsibility for its failures to providethe necessary reviews of detention thatthe law requires.

Investment and efficiency

Even in difficult times for public finances, the funding of a system that determines liberty for an increasing number of prisoners must be a priority. If hearings are held on time, and release or progression to less costly 'open' conditions occurs promptly, there will be considerable savings in the expense of 'closed' prison places for unnecessary incarceration arising from such unlawful and unacceptable delays.

Investment in staff levels and improved case management systems to ensure more timely production of the essential dossier is likely to reap efficiency and costs saving in the longer term and must be an essential component of the review of spending in the prison service. The Parole Board must also be given the resources it needs to undertake the important task entrusted to it. The proposal in December's green paper published by the MoJ to limit the IPP sentence to people who would otherwise have been sent to prison for ten years or more is likely to bring long-term relief, but in the next few years there is no alternative to increased investment in the parole process.