FOURTH SECTION

CASE OF BETTERIDGE v. THE UNITED KINGDOM

(Application no. 1497/10)

JUDGMENT

STRASBOURG

29 January 2013

FINAL

29/04/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Betteridge v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 8 January 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 1497/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Samuel Betteridge (“the applicant”), on 23 December 2009.

2. The applicant, who had been granted legal aid, was represented by Chivers Solicitors, a firm of lawyers based in Bingley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. Sornarajah, of the Foreign and Commonwealth Office.

3. The applicant alleged that he did not have a speedy review of the lawfulness of his detention, in violation of Article 5 § 4 of the Convention, and that he had no effective remedy in respect of the violation of his rights as the domestic courts refused to grant a declaration and mandatory relief.

4. On 14 December 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1954. At the time of the lodging of his application he was detained at HM Prison Whatton, Nottingham.

6. In 2005 the applicant was convicted of rape. He was originally sentenced to life imprisonment with a tariff (i.e. minimum term to be served before eligibility for release arose) of five years. Upon appeal, this was reduced to a sentence of imprisonment for public protection (“IPP” – see paragraphs 22-23 below), which is also an indeterminate sentence, with a tariff of three and a half years, less 98 days spent on remand.

7. A few months prior to tariff expiry, the Secretary of State referred the applicant’s case to the Parole Board, pursuant to section 239(2) of the Criminal Justice Act 2003 (see paragraph 27 below), to consider whether the applicant’s security category should be downgraded to allow him to go into open prison conditions. On 15 September 2008 the Parole Board notified the applicant of its decision in the following terms:

“9. The panel, which included a psychologist and a psychiatrist among their number, noted the recommendations for open conditions made by report writers, but they also noted the identification of remaining areas of treatment need ... They feared that there had been an underestimate of risk ... and an insufficient attention to the sadistic elements of the offences in other assessments. They would therefore counsel against the formulaic approach in this case, which appears at least partly to be responsible for the conclusion that once RSOTP [a sexual offenders treatment programme] has been completed no further work is required and would recommend that further individual assessment should be undertaken, which takes account of their specified comments.

10. In reaching their conclusion the panel also noted from your answers (while making due allowance for oral hearing conditions and obvious intellectual limitations) that you appear to have no more than a superficial understanding of the reasons why you committed the index offences or of the risk management strategies, which will be necessary on release to manage the sexual attitudes and responses which you still but partially acknowledge.

11. ... [The panel] therefore make no recommendation to the Secretary of State on the occasion of this review; that is because, balancing your interests in sentence progression against the interests of public safety, they were not satisfied that sufficient evidence exists that your risk of sexual and/or violent offending has yet reduced to a level such that that risk can be safely managed out of closed conditions.”

8. On 13 October 2008 the Secretary of State referred the applicant’s case to the Parole Board in anticipation of the expiry of his tariff under section 28 of the Crime (Sentences) Act 1997 (see paragraph 26 below).

9. The applicant’s tariff expired on 18 December 2008, by which time no Parole Board review had taken place.

10. On 20 February 2009 the Parole Board agreed to hold an oral hearing in the applicant’s case. As a result of the number of cases awaiting oral hearing, the earliest available hearing date was in May. However, in the event the Parole Board was unable to provide a panel for the hearing and it did not take place in May as planned. The hearing was eventually rescheduled for September 2009. The applicant challenged, by way of judicial review proceedings against the Parole Board, the delay in fixing a Parole Board hearing

11. In the context of the judicial review proceedings before the High Court, the Parole Board accepted that because of the inability to have the hearing in May and the delay until September, there had been a breach of Article 5 § 4 of the Convention in that the hearing had not taken place speedily. The Secretary of State, however, did not accept that there had been a breach, having regard in particular to the fact that the pre-tariff advisory opinion of the Parole Board had effectively made it clear there was no chance of release upon expiry of the tariff (see paragraph 7 above).

12. On 23 June 2009 the High Court handed down its judgment in the judicial review proceedings. The judge outlined the background to the applicant’s claim, as follows:

“4. ... [W]hen the tariff comes to an end the prisoner in question has the right to a hearing before the Parole Board, and if the Parole Board directs his release then the Secretary of State must release him on licence. The Act does not require the Secretary of State to refer the case to the Board unless the prisoner applies for that to happen, but the reality is that the Secretary of State routinely does refer post-tariff lifers to the Parole Board. The reason behind that is that it is common ground that Article 5(4) of the European Convention on Human Rights requires there to be a speedy hearing an independent judicial body, and the Parole Board it is accepted is the equivalent for the purposes of the Convention, to determine whether the continued detention is lawful. In fact it is the practice of the Secretary of State, in cases where the tariff exceeds 3 years, to provide a dossier to notify the Parole Board 6 months before the end of the tariff. The purpose behind that being the obvious one, to enable the Board to put in train steps to ensure that there is a hearing as soon as reasonably possible after the tariff is served.

5. Unfortunately, on the facts of this case, for reasons which are not made clear and which are perhaps not material, the dossier was not lodged until 2 months before the tariff came to an end. That meant that it joined the queue of those cases which were in the Parole Board, and in which hearings had to be held, at a later stage than it otherwise would have done. This meant that the hearing was delayed further than otherwise it need have been.”

13. The judge then considered the terms of the Parole Board recommendation of September 2008 and considered that it followed “inevitably” from it that the panel, if asked, would not conceivably have directed the applicant’s release.

14. Referring to Lord Hope’s comments in Secretary of State for Justice v. James [2009] UKHL 22 as to the requirements of Article 5 § 4 (see paragraph 29 below), the judge continued:

“22. ... The reality is that Article 5(4) requires a speedy hearing to determine the lawfulness of the detention. It may well be that in a given case the hearing will, and will inevitably, decide that the detention is lawful. That does not mean that the hearing itself can be deferred beyond a period that can be properly regarded as speedy ... ‘Speedy’ does not indicate a particular period, and I accept entirely that it is fact sensitive. What may be required in a particular case may not be required in another, depending upon the circumstances. But, one has to see in an individual case what has been the cause of the delay. In this case the cause has been the lack of man power in the Parole Board which has meant that it has been unable to provide the necessary panel, which in the case of a lifer and in deciding questions of possible release because it is said that the individual is no longer dangerous, has to be a panel headed by a judicial member. That is hardly surprising having regard to the importance of ensuring not only that those who should be released are released, but that those who should not be are not released ...”

15. The judge observed that the delay problem was being addressed in that steps were being taken to seek further manpower to enable the Parole Board to meet its obligations under Article 5 § 4. He continued:

“23. ... It will take time for the position to be improved: that is inevitable. And it may well be that it could be said that steps ought perhaps to have been taken at an earlier stage ... Nevertheless, that is historical, and as I say there is now a recognition, and I should record that both the Secretary of State and the Parole Board are working together, aware of the problems, and steps are being taken. It is not for me to dictate what steps should be taken. All I can do is to observe that the system clearly, as it existed historically, gave rise to the difficulties which this case illustrates, namely that it was all too possible that hearings were not able to be carried out speedily and so in compliance with Article 5(4) ...

16. He concluded that the September 2008 advisory opinion in the applicant’s case could not address the question whether the post-tariff detention was lawful. However, it did mean that any breach would not require payment of damages, because it was plain that in any case the Parole Board would not have ordered the applicant’s release. As to the appropriate remedy, the judge explained that what was being said by the applicant was that his Article 5 § 4 rights had been breached and that he was entitled to a declaration at least that that was the case. Although the applicant had originally sought a mandatory order requiring that his case be heard in September, that remedy was no longer pursued. The judge agreed with the decision not to pursue the claim for such an order, observing that it would be inappropriate for an individual, seeking judicial review, to “jump the queue” at the expense of those who did not seek judicial review. As to the applicant’s submission that an order for a Parole Board hearing should be made for, if not September, then at least the next available date, the judge was not prepared, for the reasons already indicated, to make any mandatory order. He continued:

“28. I am satisfied, as I have said, that the Parole Board was correct to accept that there is here, a breach of Article 5(4), because, and only because, in the circumstances of this case the reason why it was not heard at an earlier date was because of the lack of necessary manpower having regard to the pressures upon the Board. But, I am equally satisfied that there is no conceivable claim for damages which will follow, because the inevitable result of a hearing which complied with Article 5(4) would have been that the claimant was not entitled to release. The very best he could have hoped for was a decision that he ought to be placed in open conditions with a view to possible release at the next review hearing, provided of course he satisfied whatever conditions were considered to be necessary.”

17. At the hearing, the applicant’s legal representative accepted that it was “not of the greatest importance” whether a declaration was granted or not, because the terms of the judgment could show what the situation was, and the judge accepted that view. He decided:

“29. ... In all the circumstances I do not think that it is necessary for me to make any formal declaration in the circumstances of this case. I have already recorded that there was a breach, but it is a breach that will not provide, for this particular claimant, any great advantage. It does make the point, and it is a point that needs to be made, that there is an independent requirement under 5(4) for a speedy period. However, there is no question but that steps are now being taken by the Board in conjunction with the Ministry to ensure that the breaches that have occurred, and certainly were capable of occurring, will no longer occur.”

18. Finally, as to future cases, the judge noted:

“30. It is obvious that the measures put in place to alleviate the problem will not have immediate effect. The evidence before me, from a number of solicitors who have experience in dealing with these cases, makes it clear that the delays continue and the backlog has not improved, and indeed that latter point is made clear by evidence produced by the Secretary of State and by the Parole Board. But, as I say, one has to recognise that the changes can not be expected to take place overnight. I do not doubt that the authorities will now appreciate the need to get on top of this problem and to ensure that the hearings that are required are provided, and that the requirements of Article 5(4) are met. While, as I say, in the circumstances of this case, it does not particularly avail the claimant because he will not have achieved release, there may well be cases where that is not the case, and I am glad to see that one of the measures put in place is a more flexible approach by the Board to consideration of cases which do need priority. Obviously, if it has been made clear, perhaps in a pre-tariff hearing, that a particular prisoner, once he has served his tariff, is a real candidate for immediate release, then the sooner that particular individual has a hearing the better.

31. In the light of what is being done, it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) unless there are very special circumstances, something has gone badly wrong despite the new arrangements in that prisoner’s particular case. It will not be helpful, either to the prisoner or to the court, if claims are brought which in reality, because of the existing situation, are not likely to achieve any sensible redress and merely add to costs. Of course, one has sympathy with those who may stay in prison longer than they perhaps, on one view, ought to. That is a thoroughly unsatisfactory state of affairs. But, equally, the court cannot do the impossible. We cannot make orders which are only going to create difficulties for others and are not in any way desirable, because, as I have already said, it is not helpful that prisoner A gets relief which may advance him in the queue but which inevitably means that prisoner B has a longer wait. As I repeat, absent special circumstances, claims of this nature should now be discouraged. But, this has at least brought home to the court, and enabled the court to make the point, that the situation that existed was unsatisfactory, potentially contrary to law, and the court welcomes the steps that are clearly being taken now to ensure that that situation does not continue.”

19. The applicant was advised by his counsel that no appeal would be successful as the Court of Appeal would be bound to conclude that it could not prioritise any individual case when the evidence demonstrated that there was a systemic lack of resources.

20. The Parole Board review in the applicant’s case did not take place in September 2009.

21. A Parole Board review subsequently took place on 13 January 2010. The Parole Board recommended that the applicant be moved to open conditions. The Secretary of State accepted the recommendation.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Sentencing of dangerous offenders

1. The Criminal Justice Act 2003 (“the 2003 Act”)

22. IPPs were introduced with effect from 4 April 2005 by section 225 of the 2003 Act. At the relevant time, section 225 applied where an adult was convicted of a serious offence and the sentencing court was of the opinion that there was significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Unless a sentence of life imprisonment was appropriate, the court was required to impose a sentence of imprisonment for public protection.

23. Section 225(4) defined a sentence of imprisonment for public protection as:

“... a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences.”

2. Amendments to the 2003 Act

24. The consequence of the entry into force of the legislative provisions introducing IPP sentences was that a large number of individuals were sentenced to an IPP sentence. Although it had been intended that the new provisions would be resource-neutral, it soon became clear that existing resources were insufficient and the large number of IPP prisoners swamped the system in place for dealing with those serving indeterminate sentences (see James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012 (not yet final) for further details).

25. The 2003 Act was subsequently amended by the Criminal Justice and Immigration Act 2008. In particular, IPP sentences are no longer mandatory. The new provisions apply to all sentences passed on or after 14 July 2008.

B. Release of indeterminate sentence prisoners

26. The Parole Board is responsible for the release of prisoners sentenced to life imprisonment and those serving indeterminate sentences for the public protection. Under section 28(5) of the Crime (Sentences) Act 1997 (“the 1997 Act”), the Secretary of State is required to release a life or IPP prisoner who has served his tariff period if the Parole Board has directed his release. Section 28(6) provides that the Parole Board will not give a direction for release unless the Secretary of State has referred the prisoner’s case to the Board; and the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time after tariff expiry.

27. Section 239(2) of the Criminal Justice Act 2003 Act provides:

“It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”

C. Judicial consideration of detention and Parole Board reviews

1. R (Noorkoiv) v. Secretary of State for the Home Department [2002] 1 WLR 3284]

28. The claimant complained about the three-month delay in his case being heard by the Parole Board following the expiry of his tariff. Delivering its judgment on 30 May 2002, the Court of Appeal concluded that the Secretary of State’s routine delay at the time in referring cases to the Parole Board breached Article 5 § 4:

“33. The arrangements envisage a period of delay of up to three months. While sensitive to the importance of not reading mechanistically from one case to another, one cannot escape fro