Undue Delay in Parole Hearing Amounts to Arbitrary Detention

Morales, R (on the application of) v The Parole Board & Ors [2011] EWHC 28 (Admin) (14 January 2011) Summary

In this case the High Court of England and Wales decided that the actions of the Parole Board, and the Secretary of State for Justice (‘Secretary of State’) caused an ‘undue delay’ in allowing Mr Jan Morales to test the legality of his detention before a court. Accordingly, the High Court held that there had been an infringement of Mr Morales’ rights under Article 5 (4) of the European Convention of Human Rights (‘ECHR’).

Facts

In 2005 Mr Morales was sentenced to a term of imprisonment, followed by a two year ‘licence period’ where he would live in the community under certain conditions. In January 2007 Mr Morales was released from prison to serve the license period of his sentence, on conditions which included that he attends a Community Sex Offender Group (‘CSOG’), and remains on good behaviour.

In February 2007 the Standfordshire Probation Service (‘the Probation Service’) made a request to the Secretary of State to exercise their powers to recall Mr Morales to prison for breaching conditions under his license. The request to recall Mr Morales was based, in part, on comments that he had made at a CSOG session which were recorded on DVD. The Secretary of State issued the recall to Mr Morales of 22 February 2007.

The Criminal Justice Act 2003 requires that, once the Secretary of State issues a recall, the matter is referred to the Parole Board to determine legality of the detention. Mr Morales’ first Parole Board paper review hearing was held on 10 May 2007, but a decision regarding Mr Morales’ detention was only handed down on 9 November 2007 after a full hearing had been carried out by the Parole Board. Evidence was adduced that the delay between the time of the recall and the final determination about Mr Morales’ detention arose as a consequence of the practises of the Parole Board and the Secretary of State, and also due to difficulties the Parole Board experienced in requiring the Probation Service to produce the DVD of the CSOG session at which Mr Morales was present.

Mr Morales alleged that his right under Article 5 (4) of the European Convention on Human Rights (‘ECHR’) was infringed for two reasons:

• first, the delay in having the legality of his detention determined by the Parole Board; and
• secondly, that the Parole Board does not meet the definition of an independent court as is required under Article 5 (4) of the ECHR, because it did not have powers to require the Probation Service to produce the CSOG DVD.

Decision

On the issue of delay, the Court affirmed the principle for determining delay found in the decision of In re Docherty (Secretary of State for Northern Ireland Intervening) 2008 UKHL 33 that if the Parole Board acts ‘with proper expedition’ and ‘did not delay unduly’, it can successfully resist a claim for breach of Article 5(4).

The Court examined the actions of the Parole Service, the Secretary of State and the Parole Board according to the Docherty standard and held that the Secretary of State and the Parole Board were responsible for acting with ‘undue delay’ and without ‘proper expedition’ in relation to certain aspects of Mr Morales’ matter.  The Court reserved judgement regarding Mr Morales’ remedies arising as a consequence of the breach of Article 5 (4) of ECHR to a further hearing.

On the issue of the Parole Board’s Powers, the  Court held that the Parole Board satisfied the structural requirements of being a ‘court’ for the purposes of Article 5 (4) because it had powers to determine the lawfulness of Mr Morales’ detention.  The Court held that the fact that the Parole Board lacked powers to compel the Probation Service to produce the CSOG DVD was not determinative of its status as a ‘court’.

Relevance to the Victorian Charter

Section 21 (7) of the Charter contains the equivalent right to that found under Article 5 (4) of the ECHR. This case may therefore provide practical guidance about the conditions under which the question of ‘undue delay’ may arise in the action of public authorities that determine the legality of a person’s detention.

However, the case is of limited relevance in disputes involving Victoria’s Adult and Youth Parole Boards. Section 5 of the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2009 excludes the Adult Parole Board and Youth Parole Board as ‘public authorities’. Accordingly, these parole bodies cannot be subject to the application of Section 21 (7) of the Charter.

The decision is at: www.bailii.org/ew/cases/EWHC/Admin/2011/28.html

Arjuna Dibley is a researcher at the ACT Law Reform Advisory Council.