R (on the application of George Loch) v Secretary of State for Justice  EWHC 2278 (Admin) (02 October 2008)
The England and Wales High Court (Administrative Court) has held that the Secretary of State's decision that the applicant's next Parole Board review should take place approximately 18 months after the last one, amounted to a violation of art 5(4) of the European Convention on Human Rights which entitles a person to challenge the lawfulness of their detention or deprivation of liberty.
This case concerned a prisoner, Mr Loch, who was sentenced to life imprisonment on 10 January 2003 after pleading guilty to robbery and possession of an imitation firearm. In passing sentence, the Recorder specified the period of detention which Mr Loch had to serve before his case could be referred to the Parole Board was one of five years less the time he had spent on remand.
On 29 August 2007, Mr Loch's tariff expired and he became entitled to periodic Parole Board Reviews to assess whether it was still necessary for the public’s protection that he be confined. On 26 November 2007, the Parole Board reviewed Mr Loch's case and decided to transfer him to open conditions because he had made good progress and achieved a good understanding of the origins of his offending behaviour and its impact on his victims. Despite Mr Loch's good progress, the Parole Board declined to direct his release claiming that he required further testing in open conditions to assess whether or not the lessons he had learnt could be applied in practice.
On 21 January 2008, the Secretary of State informed Mr Loch that he had considered the Parole Board's recommendation and agreed to transfer Mr Loch to open conditions. He also informed Mr Loch that his next Parole Board hearing would take place on 1 June 2009 (approximately 18 months later).
The applicant claimed that his art 5(4) rights would be violated if the next Parole Board review took place more than one year after his last review were completed. Article 5(4) provides that: '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'.
Mr Loch submitted that although there is no strict obligation to hold a Parole Board review one year after the last review, the Secretary of State's decision was unlawful because a gap of 18 months is excessive in the circumstances. The applicant relied heavily on the acknowledged fact that he was making progress and he also submitted that insufficient justification had been identified by the Secretary of State for deferring the next Parole Board hearing for 18 months.
The Secretary of State argued that the 18 month period was justified because each case is considered on its individual merit and due to Mr Loch's circumstances, including his serial offending in the past, this time period was appropriate. Furthermore, it was argued that there is no presumption that a period greater that one year breaches art 5(4).
The Court noted the importance of speedy periodic reviews by the Parole Board to eliminate, as far reasonably practicable, the possibility of a prisoner remaining in detention when there is no longer a legal justification for the detention. The Court highlighted that the European Court of Human Rights has declined to prescribe a maximum time period between reviews to comply with art 5(4), and thus the question of whether periods comply with the requirement for speedy decisions must be determined in light of the circumstances of each case.
In this case, the Court emphasised the fact that Mr Loch had made good progress and that the Parole Board had not suggested more than 12 months would be needed to conduct further testing on Mr Loch in open conditions. Based on the circumstances of this case, the court held that the Secretary of State's decision to hold the next Parole Board hearing 18 months after the previous one, violated art 5(4).
Relevance to the Victorian Charter
This decision is significant for the application of s 21(7) of the Charter, which provides that 'any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must (a) make a decision without delay; and (b) order the release of the person if it finds that detention is unlawful'.
It is, however, important to note that the Parole Board is currently exempted from the requirement to comply with the Charter (s 38). This exemption is found in the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 (Vic). However, the exemption is set to expire on 31 December 2008, and when this occurs, the principles established in this case will need to be considered by the Parole Board.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2008/2278.html.
Zara Cooper is a lawyer at Minter Ellison