Legal News

A variety of cases are coming to the attention of the courts whereby public bodies, namely the Parole Board and Prison estate are acting unlawfully and unfairly to jeopardise progression for prisoners consequently prolonging their detention. In some cases this detention is becoming unlawful in breach of prisoner’s human rights.

The function of the Parole Board is to make an assessment of risk posed by a prisoner and a decision on their release into the community. The current situation is that the Parole Board are full to capacity, unable to manage the current oral hearing case load. This has a huge impact on prisoners, especially those who are ready for progression or release. The delays mean that oral hearings are being granted and not listed for another 9 to 12 months. Meanwhile prisoners are facing a stalemate situation whereby there is no further progress to be made for them in closed conditions but they are unable to progress without the Parole Board conducting the oral hearing and deciding that they are not an imminent risk to the public and can either be released or transferred to open conditions.

This gives rise to a public law challenge as this constitutes a violation of Article 5(4) of the European Convention on Human Rights which is the prisoner’s right to have the lawfulness of his/her detention decided speedily by a court. The prisoner also or alternatively suffers a violation of the ancillary duty within Article 5 which is to facilitate the progression of the prisoner towards release. And here brings the beginning of many Public law challenges against the Parole Board in an attempt to obtain a declaration that the Parole Board is not reasonably resourced or managed, and consequently the state is failing to properly resource and provide a parole system that meets its obligations under the European Convention of Human Rights.

This issue has already been contested in the courts such as the case of R (Betteridge) v Parole Board[2009] EWHC 1638 (Admin) in 2009. That case found a violation of Art. 5(4) for an indeterminate prisoner where the hearing was due for May 2009 but would not be heard before September 2009. In R (Parratt) v Parole Board[2014] EWCA Civ 1478 the Court of Appeal has also made plain that if there is a delay in violation of Art. 5(4) ECHR at the stage of moving to open conditions, and on the balance of probability that period of delay sets back progression to release by the equivalent period then the loss to be compensated is the quantum for the loss of liberty.

In 2008 all indeterminate-sentence prisoners whose case was considered by the Parole Board were entitled to request a hearing; and the unlawful delays resulting from the burgeoning imprisonment for Public Protection (IPP)/indeterminate population had yet to be well-recognised or considered by the courts. The position now is that due to the increase in the indeterminate-sentence prisoner population during the subsequent six years and due to the greater number of hearings consequently required to be provided by the Parole Board there is a systemic failing to maintain a functioning system. That stems from the controls over budget exercised by the Secretary of State within the state’s Art. 5(4) ECHR system.

This claims we have issued so far raises the important issue as to how the Parole Board (and the United Kingdom) ought to be responding to a chronic under-resourcing leading to delayed hearings for the majority of prisoners or at least a wholly unacceptable number of cases. The approach of paying modest damages from the Parole Board budget rather than the more expensive option of resourcing properly the parole system to remove the violations of Art. 5(4) ECHR is challenged. It is not proper for there to be an economic choice or costs analysis to decide rather than to meet the minimum standards guaranteed by the Convention instead to breach and continue to breach Article 5 ECHR on the basis that it is less expensive to pay modest damages than to resource the system to remove the violations in the first place. That does not respect liberty. Ultimately prisoners are being punished for this by a delay to their liberty and unnecessary avoidable imprisonment.

Of course, some prisoners do not even reach this stage of a Parole review, or when they do, they cannot progress due to the problems within the prison system. One of the main issues for prisoners is access to courses. The Parole Board assess risk posed based on a prisoner generally completing a vast number of offending behaviour programmes before they reach the so called threshold to be deemed acceptable for progression. For many prisoners, they are moved from prison to prison to access the courses they have been asked to complete and even when they reach the suitable establishment that offers the course they either have a very long waiting list which can be over 12 months long or the course is suddenly removed and inaccessible. Yet the prisoner will not even be considered for release until he is able to complete the course.

The 2012 case of James, Wells and Lee v UK went to the European Court of Human Rights. The Court held unanimously that the failure to make appropriate provision for rehabilitation services resulted in breaches of Article 5(1) of the European Convention on Human Rights, which protects the individual from arbitrary detention. Despite the introduction of the IPP scheme being premised upon rehabilitation services being made available to offenders, the Court observed that there had been considerable delays and that the applicants “had no realistic chance of making objective progress” towards parole. It considered that this had been the result of “lack of resources, planning and realistic consideration of the impact of the sentencing scheme introduced in 2005.”

Yet despite these cases the position for thousands of prisoners remains relatively unchanged. This could lead to further drain on using the public purse which is already burdened by the need to fund the detention of indeterminate prisoners who might have been suitable for release long ago had prisons been provided with the promised resources and prisoners been provided with the necessary rehabilitative courses.

About the Author

Amee Patel is a Solicitor Advocate and prison law specialist with Duncan Lewis. She focuses her work on vulnerable prisoners who are penalised a system not fit for purpose, which does not provide for effective rehabilitation for prisoners and a working release system.