Ben Collins QC represented the Parole Board in two appeals before the Court of Appeal this month, obtaining successful judgments in both cases.
In R (Gourlay) v The Parole Board  EWCA Civ 1003, the Court confirmed that the Board will not face an order for costs in circumstances where it plays no active role in a judicial review of one of its decisions, even where the Administrative Court gives judgment in the prisoner’s favour and quashes the Board’s decision. The Board is thus treated in the same way as other inferior courts and tribunals: see R (Davies) v HM Deputy Coroner for Birmingham  1 WLR 2739. The claimant has sought permission to appeal to the Supreme Court and a decision on that application is awaited.
R (Hussain) v Parole Board  EWCA Civ 1074 was an appeal arising from a delay on the part of the Board (occasioned by the huge pressures which it is under) in convening a required hearing within the timetable set by the Parole Board Rules. The claimant complained that his hearing was delayed by six months, albeit that when it was convened he was transferred to open conditions more than two years before the expiry of his minimum period of imprisonment, or tariff. The claimant contended that the delay amounted to a breach of the common law and Article 5 ECHR duty owed by the state to provide him with a reasonable opportunity to demonstrate at tariff expiry, or reasonably soon thereafter, that his continued detention was no longer necessary.
The Board contended, and the Court agreed, that notwithstanding the admitted delay, a reasonable opportunity had been provided to the prisoner such that there was no breach. Davis LJ, giving the judgment of the Court, summarised the position thus: “The circumstances of this case show that, although there was a failure to comply with the timetable laid down in the Parole Board Rules, the failure had (in the language of [the Supreme Court’s Judgment in] Kaiyam  AC 1344 at paragraph 48) not remained “uncorrected” so as to deprive the claimant of the reasonable opportunity which he ought to have had. That was Mr Collins’ submission and I agree with it.”
The case is an important statement of the approach to be taken to cases where parole hearings are delayed in cases of pre-tariff prisoners.
Gourlay, Hussain, Parole Board, Ben Collins, Admin Court, Supreme Court
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