R (Pennington) v Parole Board [2009] EWHC 2296 (Admin)

Delays by the Parole Board, both in issuing ICM directions (which caused a 2-month delay in listing the hearing) and in communicating the decision a month late, breached Article 5(4). Claims for "pure delay" - that is where a Parole Board hearing has been delayed because of a lack of resources available to or errors or omissions on the part of the Parole Board - survive the House of Lords decsion in James. Damages to be assessed at a later date.

Extract from decision

17. Taking a step back from the detail for a moment, in my judgment post James the current state of the learning in relation to claims under Article 5(4) against the Parole Board is as follows:

i) 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) – see Noorkoiv R(Robson) v. Parole Board and SSHD [2008] EWHC 248 (Admin)B per Cranston J at Paragraph 32(1) and Betteridge,
ii) The inability of the Parole Board to obtain the necessary reports from those responsible for providing such reports does not amount to a breach of Article 5(4) on the part of the Parole Board unless and until the point has been reached when the delay in providing information has continued for such a long period that continued detention has become arbitrary as that word is used by Lord Hope in James because the absence of such material does not preclude the Board from taking a decision – see James ; and
iii) Delays resulting from the Parole Board's own reasonable actions for example in requiring further information before a case is listed for hearing does not amount to a breach of Article 5(4) – see D v. SSNI [2008] 1 WLR 1499B, Robson (ante) per Cranston J at Paragraph 36 and Betteridge per Collins J at paragraph 22;
The position in relation to (ii) above may be different in a claim against the Secretary of State if and to the extent that it can be demonstrated that the Secretary of State has failed to comply with his public law duties concerning the provision of information. However that issue does not arise in this case because the claim against the Secretary of State has been discontinued and I express no concluded view about it.


Hearing date: 14 September 2009

Judgment: 18 September 2009

Before: HHJ Pelling QC

Ms Melanie Plimmer (instructed by Swain & Co) for the Claimant

Mr Tim Buley (instructed by Treasury Solicitor) for the Defendant

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