CASE OF HILL v. THE UNITED KINGDOM
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney
4. The applicant was born in 1967 and lives in Arundel. 5. In 2006 he was convicted of assault occasioning grievous bodily harm. He had a previous conviction for a similar offence against the same victim. A pre-sentencing report identified the Enhanced Thinking Skills (“ETS”) course followed by the Controlling Anger and Learning to Manage It (“CALM”) course as potentially appropriate courses for the applicant to complete during a sentence of imprisonment and explained that attendance at these courses would take around two years. On 23 November 2006 an indeterminate sentence for public protection (“IPP sentence”) was imposed. A minimum term (“tariff”) of fourteen months and twelve days was fixed. 6. The applicant was detained in HMP Lewes. On 20 March 2007 a postsentence report by his probation officers confirmed that the ETS and CALM courses were, in principle, appropriate and that completion would take around two years. At a sentence planning board on 31 October 2007, following completion of an assessment using the Offender Assessment System (“OASys”), his targets were identified as: positive use of his time in custody; improved awareness of appropriate behaviour (thinking skills); and completion of a course on Victim Awareness, the latter of which, it was noted, had already been completed. 7. A progress report dated 20 December 2007 noted: “Mr Hall has taken the only opportunities offered to him to address his offending and appears to have modified his attitude, which was a big step for him.” 8. On 4 February 2008 the applicant’s tariff expired. 9. On 15 February 2008 a first Parole Board Review was held. On 21 February 2008 the Parole Board informed the applicant of its decision not to direct his release or recommend his transfer to open conditions. The panel considered that the applicant still posed a high risk to his victim, particularly as the victim had been also been detained in HMP Lewes and the applicant had received an adjudication for assaulting him. In order to address this risk, the applicant was required to complete the ETS course and to be assessed for the CALM course, in closed conditions. The panel continued: “Your supervisors considered that you should be assessed for ETS and Anger Management, but this has not been possible at HMP Lewes, where you are considered to be a polite and respectful Enhanced Prisoner.” 10. The Parole Board referred to the applicant’s submission that he would control himself and avoid the victim in future and that he was prepared to respect non-contact and exclusion zone conditions to secure his release. It concluded: “The Panel accepts without reservation, that your high level of risk relates solely to your involvement with [the victim], but this is a risk which cannot be ignored, despite your determination to avoid him. Any such involvement is a real concern and cannot be ignored. It is the view of the Panel, having taken into account the varying views of your supervisors, that prior to your release you should have the opportunity to carry out all outstanding offending behavior work, namely ETS and to be assessed for CALM, and that the appropriate place for this to be done, is in Closed Conditions.” 11. On 5 March 2008 the Secretary of State approved the Parole Board’s recommendation and set the review period at eighteen months to complete outstanding offender behaviour work, with a hearing to take place in August 2009. 12. On 16 April 2008 the applicant was transferred to HMP Erlestoke. His targets were reviewed with his offender supervisor and on 25 April 2008, after a review of an initially negative decision, he was referred for assessments for the ETS and CALM courses and the Healthy Relationships Programme (“HRP”). 13. In May 2008, the applicant was deemed suitable to progress to the second stage of the assessment for the ETS course. 14. In the applicant’s Sentence Planning and Review Report dated 30 June 2008, prepared by his offender manager, it was recorded that he was to be assessed for and, if suitable, complete the ETS and CALM courses and the HRP. The report added as regards the HRP: “I am also of the opinion that consideration needs to be given to completing this work in the community as a condition of his licence because the waiting list is extremely long.” 15. At a sentence planning and review meeting on 14 August 2008, the applicant’s sentence targets recorded that he should be assessed for and complete the ETS and CALM courses and the HRP programme. It was noted that he required extra psychological assessment as he appeared to be afraid of participating in group activities, which might hinder his eventual participation in the courses recommended to him. 16. A report of an interview with his offender supervisor dated 20 January 2009 notes: “When the question of his current sentence plan targets was raised, he stated that he would not do any of the courses as he hates classrooms and he will not be forced into doing them. When it was explained that this attitude would make it extremely difficult for him to make any progress in his sentence and through the prison system, he stated that he did not care and would stay here ‘for thirty years’ ... Mr Hill did not want to discuss any of his specific sentence plan targets with me and this is clearly an area that needs to be addressed in order for him to progress.” 17. In his Parole Assessment Report of 27 January 2009, the applicant’s offender manager stated that she could not support the applicant’s release because at that stage he had not undertaken any work to address his behaviour. She noted his resistance to offending programmes and reported that it was “absolutely imperative” that arrangements be made for him to be psychologically assessed, adding: “Mr Hill faces the potential of being left serving an IPP sentence with no means of working towards his release.” 18. She further noted that she had made enquiries at the prison as to whether the applicant might undergo psychological assessment but that the chances of this occurring were seen as slight. She stated that if this was not available at his current institution, the applicant would need to be moved to a facility where it could be undertaken. 19. In February 2009 the applicant’s case was referred to the Parole Board. 20. A Sentence Planning and Review Report dated 2 February 2009 recorded the applicant’s refusal to engage with his sentence plan targets to reduce his risk. It recommended that the ETS, CALM and HRP courses be undertaken in closed conditions and that counselling be provided. 21. On 5 February 2009 the applicant confirmed that he was prepared to do the ETS course in a one-to-one basis. 22. On 28 April 2009 he met with the ETS facilitators and on 29 April was notified that he had been identified as a potential participant of the ETS course scheduled to begin on 13 May 2009. 23. The applicant was duly enrolled on the May 2009 ETS course. He completed the course in June 2009. A post-programme review took place on 11 August 2009. 24. The applicant was subsequently informed by his probation officer that there was a two-year wait for access to the CALM course. 25. On an unknown date the Parole Board hearing scheduled for August 2009 was deferred to November 2009 in order to allow for the completion of the post-ETS course report. It was subsequently deferred again until 9 February 2010. 26. Meanwhile, at some point in 2009 or 2010, the applicant was assessed for the HRP and was found to be unsuitable. 27. On 29 January 2010 the applicant’s solicitors informed the Parole Board that they had commissioned an independent psychologist’s report on the applicant and that it might not be completed by the time of the scheduled hearing. As a result, on 1 February 2010 the Parole Board Panel Chair issued directions deferring the hearing and imposing deadlines for the provision of the psychiatric report (9 March) and any report in response by the Secretary of State (8 June). The target month for the hearing was September 2010. 28. The independent psychology report was completed on 7 February 2010 and filed with the Parole Board on 9 March 2010. The report supported the applicant’s release on licence into the community. It explained that the applicant had tried to complete his treatment goals but that his fear of group settings combined with his low IQ had made this very difficult. It further stated: “5.1 I strongly recommend irrespective of the outcome of any future Parole Board hearing that Mr Hill receives one-to-one counselling as a matter of urgency... 5.3 There has been much debate regarding Mr Hill’s need for further treatment and indeed his ability to benefit from such treatment. In my opinion a prerequisite for deciding the issue is that Mr Hill undergo further cognitive and/or psychoneurological assessment.” 29. In an addendum to the report dated 14 May 2010, it was noted that the applicant was not capable of benefitting from group work but was fully capable of one-to-one coursework. 30. The prison was not notified that a report was required until 20 July 2010. Because of other reporting commitments, it informed the parties that it would be unable to deliver the necessary report before May 2011. 31. The Parole Board hearing was subsequently further deferred until 13 January 2011. 32. In an addendum to the Sentence Planning and Review Report, the applicant’s offender supervisor explained: “There have been problems getting Mr Hill assessed for the CALM course, some of which relate to his reluctance to participate and others due to issues relating to availability of staff.” 33. On 10 January 2011 the applicant was informed that his Parole Board hearing had been cancelled because the applicant’s offender supervisor was unable to attend and that the earliest possible date for the hearing would be March 2011. 34. The deferred Parole Board hearing took place on 19 April 2011. By letter dated 28 April 2011, the Parole Board noted that the applicant had not cooperated with a prison transfer to allow him to be assessed for the CALM course and that he appeared to prioritise his work over addressing his areas of risk. The Parole Board further noted that the applicant was still, five years into his sentence, providing new and important background to the motivations and triggers for his violence. It said that this had limited the assessment of his risk factors. 35. The applicant subsequently sought judicial review of the Parole Board’s decision not to recommend his transfer to open conditions. On 21 January 2012 the Administrative Court granted the judicial review application on the basis that the panel had failed to carry out the correct balancing exercise when considering whether to accede to the applicant’s request for a transfer to open conditions. The Parole Board was instructed to reconsider this aspect of the applicant’s case. 36. The applicant subsequently undertook the CALM course and completed it in October 2011. 37. The Parole Board held an oral hearing on 13 April 2012. By letter dated 4 May 2012, it directed the applicant’s release. He was released on 15 May 2012.