CASE OF BETTERIDGE v. THE UNITED KINGDOM

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 from the fact that much shorter periods than three months have been condemned by the ECtHR:

...

36. To the extent that the present scheme is seen as imposed on the Parole Board by constraints of resources, that factor cannot offset what is objectively a breach on the part of the state ...”

2. Secretary of State for Justice v. James [2009] UKHL 22

29. In the context of three cases concerning the legality of continued detention after the expiry of the tariff period where the prisoners concerned had not had access to relevant courses to assist them to address their offending behaviour, Lord Hope noted:

“21. ... Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirements of procedural fairness. How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate, and to set its own timetable for the information that it needs to be made available. It is entitled to expect cooperation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not in itself mean that there will be a breach of Article 5(4). As in the case of Article 5(1)(a), it will only be if the system which the statutes here laid down breaks down entirely, because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary, that the guarantee that Article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages.”

3. Alcock v. The Parole Board [2009] EWHC 2401 (Admin)

30. The claimant, whose case was heard after the judgment in the applicant’s case had been handed down, complained about the Parole Board’s delay in holding an oral hearing in his case. The Parole Board conceded a breach of Article 5 § 4. The claimant, unlike the applicant in the present case, had a realistic prospect of release. He therefore contended that his case constituted “very special circumstances” to which the High Court had referred in its judgment in the applicant’s judicial review proceedings (see paragraph 18 above). The High Court judge disagreed, noting:

“... Nothing I have been shown in the claimant’s case leads me to the conclusion that his position is so special that I ought, in ignorance of the merits of the cases of other prisoners, to direct that his case ought to be heard before theirs.”

31. As to whether the court ought to make a formal declaration, the judge concluded:

“In the light of my conclusion that his case does not give rise to any very special circumstances, I do not consider that it would be appropriate to make a declaration which might appear to give the claimant some badge of exceptionality which other prisoners who have not brought proceedings would not achieve. I have not been persuaded that the claimant’s case ought to be prioritised over theirs and accordingly I decline to grant a declaration which might give the impression that I held a different view. In my judgment, this case is one of those squarely within the category of cases referred to by Collins J [in the applicant’s case] where, once his Lordship’s judgment was given, it was not appropriate for the prisoner to take, or in this case to continue with, proceedings against the Parole Board.”

32. Finally, in response to the applicant’s claim for damages, the judge found that such a claim was “critically dependent on the claimant’s case for release on review when the oral hearing takes place”. He therefore accepted the Parole Board’s submission that the claimant had not, in the judicial review proceedings, established any claim for damages and dismissed the claim.

4. Hoole v. The Parole Board [2010] EWHC 186 (Admin)

33. The claimant complained, inter alia, about the delay in convening an oral hearing of the Parole Board in his case. He contended that “special circumstances” existed in his case which justified the bringing of judicial review proceedings, notwithstanding the High Court’s judgment in the applicant’s case. The Parole Board accepted that there had been a breach of Article 5 § 4. On the question whether to grant a declaration that there had been a breach in the case, the judge said:

“35. My view on this (frankly, relatively insignificant) issue has wavered. In one sense, why should there not be a declaration when there has been an acknowledged breach? Whilst it is a discretionary remedy, why should the Claimant be deprived of a formal judicial recognition of the breach? ....

36. ... However, on balance, I have come to the conclusion that a declaration really adds nothing to what already appears in this judgment and which would have been apparent on a reading of the papers in the case and, since the question of precisely when the ‘culpable’ delay started running remains to be resolved, any declaration would have to be too widely expressed to be meaningful. In those circumstances, and bearing in mind the need not to encourage time-wasting and expensive applications which would yield no practical benefit, I do not think it is appropriate to grant a declaration at this stage.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

34. The applicant complained about the delay in his case being heard by the Parole Board and alleged a continuing breach of his right to a speedy review of the lawfulness of his detention set out in Article 5 § 4 of the Convention, which reads as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Admissibility

1. Victim status

(a) The parties’ submissions

35. The Government accepted that a violation of Article 5 § 4 had taken place in respect of the period up to September 2009. However, they explained that at the time that the applicant’s case was heard by the High Court, a number of legislative and administrative steps were already being taken by the domestic authorities to address the delay problems that had arisen (see paragraph 15 above). These included the active recruitment of additional Parole Board judges and members; the introduction of an improved case management system; amendments to the Parole Board rules and a more flexible approach to scheduling review hearings to reflect what was at stake for particular prisoners. Although it took some time for the changes to have an effect on the situation of delay, the violation in the applicant’s case was adequately and effectively redressed by the acknowledgment of the violation and the complaint was therefore manifestly ill-founded.

36. The applicant disagreed with the Government’s contention.

(b) The Court’s assessment

37. The Court considers that the Government’s objection is more appropriately examined from the standpoint of whether the applicant remains a victim of the alleged violation. In order to be able to lodge a petition by virtue of Article 34 of the Convention, a person must be able to claim to be the victim of a violation of the rights set forth in the Convention. The Court has consistently held that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Stephens v. Malta (no. 2), no. 33740/06, § 82, 21 April 2009; McCabe v. the United Kingdom (dec.), no.17233/08, § 26, 26 June 2012; and Nada v. Switzerland [GC], no. 10593/08, § 128, 12 September 2012).

38. The Court observes that the High Court, in its judgment of June 2009, found that there had been a violation of the applicant’s rights under Article 5 § 4 of the Convention as a result of the delay in his case. Although it did not make a declaration, the judgment clearly records the court’s findings on the matter. The Court is therefore satisfied that the domestic authorities expressly acknowledged the breach of the Convention in the applicant’s case.

39. It remains for the Court to assess whether adequate redress was afforded to the applicant for the violation which occurred. It is relevant in this respect that at the time of the High Court judgment, the breach was a continuing one, in that the applicant’s case had still not been heard and no definite date for the review had been fixed. Despite this, the High Court declined to make any order that the applicant’s case be heard, noting that his Parole Board hearing was scheduled for September 2009, some two to three months later. The court considered it “inappropriate for an individual, by making a claim for judicial review, to jump the queue at the expense of those who do not seek judicial review”. The applicant’s review by the Parole Board in fact took place almost six months later, in January 2010.

40. The Court accepts that it would have been unfair and impractical to fast-track prisoners who had pursued successful judicial review proceedings to the detriment of prisoners who, although also entitled to enjoy a speedy review in accordance with Article 5 § 4, had not. Thus, as far as securing the applicant a speedy review before the Parole Board was concerned, in finding a violation of Article 5 § 4, the judge in the High Court did all that could be expected of him in the circumstances of the systemic problem with which he was confronted. The Court further acknowledges that by the time of the High Court’s judgment, steps were being taken by the authorities to try and address the systemic delay. However, the fact remains that the situation of delay which arose at the relevant time was the direct result of the failure of the authorities to anticipate the demands which would be placed on the prison system as a result of the introduction of the IPP sentence. These demands were not unforeseeable (see, generally, the judgments of the High Court, the Court of Appeal and the House of Lords summarised in the Court’s judgment in James, Wells and Lee, cited above, and §§ 203, 206-210, 215-216 and 218 of that judgment). It was for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 5 § 4 (R.M.D. v. Switzerland, 26 September 1997, § 54, Reports of Judgments and Decisions 1997‑VI; Hutchison Reid v. the United Kingdom, no. 50272/99, § 78, ECHR 2003‑IV; and Abidov v. Russia, no. 52805/10, § 61, 12 June 2012). The belated steps taken by the authorities to address the systemic problem did not relieve them of their obligation to ensure that the applicant enjoyed a speedy review as required by that Article. The failure to implement the applicant’s entitlement under Article 5 § 4 of the Convention continued for some good while after the ruling by the High Court.

41. In the circumstances, the Court is satisfied that the acknowledgment of the continuing breach of the Convention by the High Court did not in itself afford to the applicant adequate redress such as to deprive him of victim status for the purposes of Article 34 of the Convention (compare and contrast Kustila and Oksio (dec.), no. 10443/02, 13 January 2004). The Government’s objection is accordingly rejected.

2. Exhaustion of domestic remedies

(a) The parties’ observations

42. The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They observed, first, that the applicant’s successful judicial review application only concerned the period of delay extending to September 2009; a separate application for judicial review could have been made in respect of the period of delay between September 2009 and January 2010. To the extent that the applicant sought to rely on the comments of the High Court judge seeking to discourage further applications for mandatory relief (see paragraph 18 above), the Government contended that nothing in those comments was directed to future meritorious judicial review claims.

43. The Government further pointed out that the applicant had failed to appeal the order of the High Court. Although he relied on counsel’s advice (see paragraph 19 above), this was not a case where there was any settled legal opinion that such an appeal was bound to fail, but rather one where doubts as to the prospects of success arose.

44. Finally, the Government contended that the applicant had failed to exhaust a potentially effective remedy because he did not seek a discretionary award of damages under the Human Rights Act 1998.

45. The applicant submitted that the judicial review claim had been issued and proceedings conducted on the basis of assurances given by the Parole Board that the oral hearing would take place in September 2009. Those assurances were not kept. In view of the findings of the High Court judge regarding future cases, it was not reasonably open to the applicant to make a further application in respect of the period following September 2009. In any event, the applicant considered that the length of the delay, once it had reached a certain level, became immaterial.

46. The applicant further argued that any appeal would have been futile in the light of the fact that the court would not be able to compel the Parole Board to fix an earlier date for his review.

(b) The Court’s assessment

47. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective (see, among many other authorities, Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, ECHR 2010; and Tucka v. the United Kingdom (No. 1) (dec), no. 34586/10, § 12, 18 January 2010).

48. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Kennedy v. the United Kingdom, no. 26839/05, § 109, ECHR 2010‑...). However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (Knaggs and Khachik v. the United Kingdom (dec.) nos. 46559/06 and 22921/06, § 155, 30 August 2011).

49. In the present case the Government claim, first, that the applicant should have commenced judicial review proceedings in respect of the delay which occurred after September 2009. The Court notes that it has already found that the outcome of the judicial review proceedings in the applicant’s case did not provide him with redress for the violation of his rights under Article 5 § 4. It further refers to the comments of the High Court judge to the effect that in light of what was being done, it was no longer appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5 § 4 unless there were very special circumstances (see paragraph 18 above). The Court considers that the applicant’s complaint about the post-September 2009 delay does not appear to give rise to any such circumstances: it concerned the continuation of the same delay which had led to the High Court judgment in the first place. The Court is therefore satisfied that it was not necessary for the applicant to commence further judicial review proceedings for the period of delay from September 2009 to January 2010.

50. The Government also contended that the applicant ought to have appealed the judgment of the High Court. The Court observes in this regard that the applicant was advised by senior counsel, who was an experienced specialist in the public law and human rights field, that an appeal would be unsuccessful. The advice was based on the view that, like the High Court, the Court of Appeal would not be prepared to prioritise any individual case when the evidence demonstrated that there was a systemic lack of resources (see paragraph 19 above). The Government have failed to identify any similar case where judicial review proceedings resulted in the prioritisation of the prisoner’s case. It is also noteworthy that the High Court in Alcock followed the reasoning set out in the applicant’s case (see paragraphs 30-31 above). The Court is accordingly persuaded that any appeal to the Court of Appeal did not offer to the applicant reasonable prospects of success (contrast Fox v. the United Kingdom (dec.), no. 61319/09, §§ 44-45, 20 March 2012).

51. Finally, as to the applicant’s failure to seek damages for the breach of Article 5 § 4, it appears from the comments of the High Court judge highly unlikely that damages would have been awarded in the applicant’s case given that the Parole Board would not have ordered his release had the review taken place on time (see paragraphs 13 and 16 above; see also the judge’s comments in Alcock at paragraph 32 above). The Government have not drawn the Court’s attention to any similar case where damages were awarded. It cannot be regarded as unreasonable for the applicant not to have sought an award of damages under the Human Rights Act. Furthermore, at the time of the applicant’s judicial proceedings and when he lodged his application with this Court, the alleged breach was a continuing one in respect of which, in view of the reasons set out above regarding the adequacy of the redress provided to the applicant (see paragraph 40 above), the effectiveness of a remedy seeking an award of damages in the absence of means ensuring a prompt review by the Parole Board is to be doubted. The Government’s objection is therefore dismissed.

3. Conclusion on admissibility

52. For the reasons set out above, this complaint cannot be rejected for lack of victim status nor for non-exhaustion of domestic remedies. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. The Court therefore declares the complaint admissible.

B. Merits

1. The parties’ observations

53. The applicant submitted that the significant delay in the Parole Board’s review of his detention – from the expiry of his tariff on 18 December 2008 until 13 January 2010 – resulted in a breach of Article 5 § 4 of the Convention. The delay of almost thirteen months was a consequence of matters within the control of the Government.

54. The Government accepted that Article 5 § 4 imposed an obligation on the United Kingdom to organise the Parole Board system so that it could comply with the requirement of a speedy hearing. However, they argued that since this delay had been accepted by the relevant judicial institutions and had been adequately and effectively redressed under domestic law, there was nothing left for this Court to adjudicate.

2. The Court’s assessment

(a) General principles

55. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12; and Stephens (No. 2), cited above, § 83). In guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, Article 5 § 4 also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention (see Musial v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II; Stephens (No. 2), cited above, § 83; and Allen v. the United Kingdom, no. 18837/06, § 39, 30 March 2010).

56. In cases of indeterminate sentences imposed following conviction, continued detention after the expiry of the tariff period depends on elements of dangerousness and risk associated with the objectives of the original sentence. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5 § 4 (see Weeks v. the United Kingdom, 2 March 1987, § 58, Series A no. 114; Thynne, Wilson and Gunnell v. the United Kingdom, 25 October 1990, § 70, Series A no. 190‑A; and Stafford v. the United Kingdom [GC], no. 46295/99, § 87, ECHR 2002‑IV).

(b) Application of the general principles to the facts of the case

57. The High Court found a violation of Article 5 § 4 in the applicant’s case in respect of the period from tariff expiry to September 2009, when a Parole Board review was scheduled to take place. The Court sees no reason to disagree with this finding, which is in any event not disputed by the Government. Following the cancellation of the September review, the delay in the applicant’s case continued until 13 January 2010. There is nothing to distinguish this period of delay from the initial period in respect of which a violation was found.

58. The Court therefore concludes that there has been a violation of Article 5 § 4 in respect of the delay in the applicant’s Parole Board review from 18 December 2008 to 10 January 2010.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

59. The applicant further complained under Article 13 that he had no effective remedy in respect of the violation of his rights under Article 5 § 4 as the domestic courts refused to grant a declaration and mandatory relief. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

60. The Court considers that this complaint is linked to the applicant’s complaint under Article 5 § 4 of the Convention and must therefore likewise be declared admissible.

B. Merits

1. The parties’ observations

(a) The applicant

61. The applicant submitted that he had no effective remedy for the violation of Article 5 § 4, which had been recognised by the High Court, as there was no means available to him for bringing the delay to an end. He emphasised that the delay arose as a result of legislative measures introduced by the Government. They could not absolve themselves of responsibility for the situation created by their own failure to anticipate the consequences of the new legislation. He concluded that the only remedy open to him was to wait for the authorities to reduce the backlog of cases. This, he submitted, could not constitute an effective remedy.

(b) The Government

62. The Government submitted that as Article 5 § 4 of the Convention provided a lex specialis in relation to the more general requirements of Article 13, the applicant’s complaint should be “analysed exclusively” under Article 5 § 4, citing Stephens v. Malta (no. 1), no. 11956/07, § 99, 21 April 2009; and Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999‑II).

63. In any case, the Government were of the view that the available domestic remedies satisfied the requirements of Article 13. In particular, the Government emphasised that the effectiveness of remedies was not to be judged by the certainty of a favourable outcome for the applicant and that Article 13 required only “appropriate relief”. The remedy of judicial review had been available to the applicant, and the court could have ordered declaratory or mandatory relief or damages, as appropriate in the circumstances. Although discretionary, the remedies were administered according to well-established principles. In the applicant’s case, a declaratory remedy was rightly accepted by the applicant’s counsel not to be of great importance in light of the recognition of the breach; and mandatory relief was not deemed to be appropriate because its effect would be to fast-track the applicant ahead of other prisoners affected by the systemic delays.

64. The Government stressed that in view of the unforeseen shortage of judicial resources caused by the IPP sentencing regime, the authorities should be regarded as having a considerable margin of appreciation as to how to address the complex and systemic problem. It could not be the case that Article 13 required a Contracting State to do the impossible and generate additional judicial resources overnight.

2. The Court’s assessment

65. The Court considers that the issue raised by the applicant under this head, namely his having been unable to obtain a date for his Parole Board review through litigation, has already been examined in substance in the context of his complaint under Article 5 § 4. The Court accordingly concludes that the applicant’s complaint under Article 13 gives rise to no separate issue.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

66. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

67. The applicant claimed 1,500 pounds sterling (GBP) in respect of non-pecuniary damage to reflect the high levels of anxiety and distress caused by the delay.

68. The Government disputed that the applicant was entitled to an award of damages before the Court as he had not sought a remedy of discretionary damages under the Human Rights Act 1998. In any event, the Government submitted that the finding of a violation of Article 5 § 4 by the High Court clearly constituted sufficient just satisfaction and that only in exceptional cases would damages for non-pecuniary loss be appropriate where the delay did not lead to any delay in the prisoner’s release or any documented deterioration in mental health.

69. The Court is satisfied that the delay in the applicant’s case gave rise to feelings of frustration which, in the absence of a prompt Parole Board hearing following the delivery of the High Court’s judgment, were not sufficiently compensated by the findings of violations of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 750 in respect of non-pecuniary damage.

B. Costs and expenses

70. The applicant also claimed 13,892.81 pounds sterling (GBP) for the costs and expenses incurred before the domestic courts and GBP 3,282.04 for those incurred before the Court.

71. The Government submitted that no award for legal costs should be made as the sums claimed were manifestly excessive.

72. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The applicant was in receipt of legal aid in the judicial review proceedings and has therefore not demonstrated that he has incurred any legal costs in this regard. In the present case, regard being had to the documents in its possession and the above criteria, and taking into consideration the sum of EUR 850 awarded to the applicant by the Council of Europe by way of legal aid, the Court considers it reasonable to award the sum of EUR 2,000 covering the applicant’s legal costs for the proceedings before this Court.

C. Default interest

73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 4 of the Convention;

3. Holds that the complaint under Article 13 of the Convention gives rise to no separate issue;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into pounds sterling at the rate applicable at the date of settlement:

(i) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 29 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıIneta Ziemele
RegistrarPresident

Full & Egal Universal Law Academy