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There was nothing in the decision to indicate its provisional nature. Ratio |
The decision summarised the appellants history as set out in the dossier, and stated: In order to improve your ability to cope the thinking skills programme (TSP) has been recommended for you and this was considered a good starting point in order to start addressing your risk and to deal with your long term problems of... |
The concern, however, is that you have little awareness of what may unsettle you in the future and that your relapse prevention strategies rely solely on professional support. RLC |
The report states you do not see it as your responsibility to change but for others to look after you. RLC |
The psychologist recommends the TSP for you In order to fully benefit from this programme it is suggested that some 1:1 work with the treatment team would be needed before you started the programme No report writers are in a position to recommend release or a progressive move to open conditions for you. RLC |
You feel you may benefit from a direct release to Box Tree Cottage which offers a high level of supportive accommodation for offenders but it is felt that such plans are somewhat premature for you although the offender manager and the psychologist have not ruled out this type of progression in the longer term. RLC |
In response to the letter, the appellants solicitors requested an oral hearing by letter dated 17 November 2009. FAC |
They stated that the appellants was a complex case. FAC |
Since his last review, he had been working on a one-to-one basis with a psychiatrist in the prison on cognitive skills, and was currently covering some of the elements of the thinking skills programme. FAC |
He had completed work to reduce his risk since his last review. FAC |
He had not had any adjudications. FAC |
He had had successful releases on temporary licence. FAC |
His application for release might therefore be successful. FAC |
He would require psychiatric intervention when released. FAC |
This needed to be considered at an oral hearing. FAC |
His probation officer was currently arranging for him to visit Box Tree Cottage, which provided accommodation with psychiatric support on hand. FAC |
It was likely that he would request direct release to that accommodation. FAC |
By letter dated 19 November 2009, headed Appeal against Paper Decision, the board informed the appellant that the appeal has been refused. FAC |
The letter stated: The ICM assessor's duty is to consider whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper hearing decision. FAC |
The implication of that statement is that a decision which was taken before any representations were received from the prisoner should be reconsidered only if representations subsequently made demonstrated that an oral hearing would result in a different decision. FAC |
The letter continued: The criteria for granting an oral hearing is (sic) where the member considers there is a realistic chance of release or open conditions and where the assessment of risk requires live evidence to determine the risk factors. FAC |
In Mr. Booth's case the offender manager, the offender supervisor and the prison psychologist all agree on the current risk factors which are thinking skills deficits and anger management issues and that interventions need to be completed to address these risk factors. FAC |
They all conclude that Mr. Booth is unsuitable for release or open conditions. FAC |
There is no evidence or argument put forward in the representations which persuades the ICM assessor that an oral hearing is justified. FAC |
The paper decision is therefore final. FAC |
The decision does not explain why the points made on behalf of the appellant in the letter dated 17 November 2009 had been discounted by the anonymous ICM assessor, beyond reiterating the contrary opinions of the offender manager, the offender manager and the prison psychologist. FAC |
The facts James Reilly FAC |
The appellant Reilly was convicted in 2002 of offences of robbery, attempted robbery and possession of an imitation firearm, relating to the attempted robbery of a post office and the robbery of another post office. FAC |
He had 19 previous convictions, two of which were for robbery. FAC |
He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. FAC |
During the course of his sentence he was transferred to Northern Ireland, but remained subject to the jurisdiction of the board under section 28 of the 1997 Act. FAC |
By letter dated 3 March 2009 the board notified the appellant that he was being considered for release. FAC |
He was told that he would receive a copy of his dossier and would have 28 days to submit written representations. FAC |
The board would consider his case and notify him of its decision whether to grant an oral hearing. FAC |
He would then have 28 days to decide whether he accepted the decision or whether he wished to appeal the decision. FAC |
On 19 March 2009 the appellants solicitors replied, requesting an oral hearing and indicating that the appellant would be legally represented. FAC |
On 29 April 2009 they wrote to the board, drawing to its attention that they had not yet received the dossier. FAC |
On 8 May 2009 the solicitors were informed by the board that the appellant had a target month for oral hearing of September 2009, and that it had not yet received the dossier. FAC |
On 21 May 2009 the solicitors wrote to the prison authorities requesting confirmation that the dossier had been submitted to the board. FAC |
On 3 June they learned that a copy of the dossier had been provided to the appellant, but not to them. FAC |
At some point in about June 2009 the appellant received an undated letter from the board, in the standard form described in para 33. FAC |
Like the similar letter addressed to the appellant Booth, it informed the appellant that the board had decided not to direct his release or to recommend his transfer to open conditions, and that he could appeal the decision and ask for a full oral hearing. FAC |
Enclosed with the letter was an undated and anonymous decision. FAC |
It took as its starting point a pre-tariff review carried out by the board in 2006, which stated that the appellant needed to show a sustained period of good behaviour, and that he was working on drug relapse prevention and undertaking specified courses. FAC |
In relation to the first of these, the panel noted that since 2007 the appellant had been adjudicated upon for matters including possession of unauthorised articles, attempted assault on staff, damaging prison property, possession of a knife, disobeying orders and abusive behaviour. FAC |
He had failed a number of drug tests. FAC |
He had undertaken one of the relevant courses with apparent success, but the drug tests indicated that he had been unable to translate this work into positive action. FAC |
Given the drug test results, he was unsuitable for the other recommended course. FAC |
The panel concluded that there was more work to be done, particularly in relation to the use of violence, and that the appellant would need to demonstrate that he could maintain his behaviour and motivation before less secure conditions could be considered. FAC |
By letter dated 10 July 2009 the appellants solicitors requested an oral hearing. FAC |
They pointed out, first, that the panel had not had before it any representations from the appellant. FAC |
Secondly, they noted that the major reservations in the panels decision reflected the comments in the dossier about the appellants prison record and failed drug tests. FAC |
They submitted that the appellants adjudication record did not on examination indicate an unacceptable risk. FAC |
The charge of possession of unauthorised articles related to items from the tuck shop. FAC |
The charge of attempted assault concerned his flicking a sock in the direction of a prison officer. FAC |
The charge of damaging prison property concerned a torn bed sheet. FAC |
Possession of a knife concerned a knife which the appellant had removed from another prisoner in order to avoid an incident. FAC |
In relation to disobeying orders, the appellant had objected to being in the vicinity of heavy machinery in the prison workshop as he was epileptic. FAC |
Following the adjudication he worked instead in another part of the prison. FAC |
The charge of abusive behaviour had been dismissed. FAC |
In relation to the drugs tests, during the relevant periods the appellant had been prescribed medications which might account for the results. FAC |
It was submitted that the appellant had progressed sufficiently to be seriously considered for open conditions. FAC |
It was believed that the necessary remaining courses could be accessed by prisoners in such conditions. FAC |
Not all the report writers had commented on the appropriateness of open conditions. FAC |
By letter dated 20 July 2009, headed Appeal Against Paper Decision, the appellant was notified that his appeal had been refused. FAC |
The letter, whose author was unidentified, stated: The appeal has been refused on the grounds that while individual adjudications may have explanations there still remains significant offending behaviour work for you to carry out, particularly with regard to instrumental violence. FAC |
Until such work is successfully completed, the risk of reconviction or of causing serious harm cannot be regarded as reduced. FAC |
No report writers recommend a move to open or release at this review. FAC |
This panel endorses the view that no recommendation can be made at this time and the appeal is refused. FAC |
The paper decision is therefore final. FAC |
The letter did not address the possibility that the recommendations of the report writers had been influenced by the appellants history of adjudications and failed drug tests, to which they had referred, or the possibility that the boards independent assessment might be affected if the appellants explanations were acce... |
Nor did it address the possibility, raised in the appeal, that any further courses might be undertaken in open conditions. FAC |
There is no indication that the explanation put forward for the failed drug tests was taken into account. FAC |
By letter dated 23 July 2009 the appellant was informed that the Secretary of State agreed with the panels recommendation for the reasons which it gave, and considered that a number of risk factors were outstanding and required further work. FAC |
In particular, the appellant needed to address his behaviour and drug use in prison over a sustained period. FAC |
It appears from the latter conclusion, which did not form part of the appeal decision, that the Secretary of State may have been proceeding on the basis of the paper decision, which had become final. FAC |
On an application for judicial review, Treacy J held that the board had acted in breach of its common law duty to act fairly, and incompatibly with the appellants Convention rights under article 5(4), in failing to provide him with an oral hearing ([2010] NIQB 46). RLC |
In a subsequent judgment ([2010] NIQB 56), Treacy J decided that the appropriate remedy was the award of certiorari to quash the boards decision. RLC |
He declined to make an award of damages under section 8 of the Human Rights Act, noting that it was agreed that the appellant could not establish that he had been deprived of liberty as a result of the decision, and concluding that any frustration or distress which he might have suffered was not of such intensity as to... |
An appeal against the first of these decisions was allowed by the Court of Appeal in Northern Ireland ([2011] NICA 6). RLC |
The court followed the approach which had been adopted by the Court of Appeal of England and Wales in the cases of the appellants Osborn and Booth, and concluded that, since the factual issues highlighted by the appellants solicitors were not of critical importance, it followed that the board could fairly conclude that... |
The appellant was eventually allowed an oral hearing in May 2011. FAC |
His application for release was refused. FAC |
Domestic law and Convention rights STA |
The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. Ratio |
As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights. Ratio |
The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. Ratio |
They have to be fulfilled at national level through a substantial body of much more specific domestic law. Ratio |
That is true in the United Kingdom as in other contracting states. Ratio |
For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. Ratio |
The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Ratio |
Many other examples could be given. Ratio |
Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, 88). R... |
As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system. Ratio |
The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. Ratio |
The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. Ratio |
As the European court has said, a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). Ratio |
The Convention cannot therefore be treated as if it were Moses and the prophets. Ratio |
On the contrary, the European court has often referred to the fundamentally subsidiary role of the Convention (see eg Hatton v United Kingdom (2003) 37 EHRR 611, para 97). Ratio |
In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1990) 13 EHRR 820, para 27). Ratio |
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