About this case:

• Citation:
  [2022] NIKB 18
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

In considering this application, the court found that one of the relevant features was the applicant’s own conduct, as multiple failed drug tests were ultimately the cause of his ineligibility for release.

Background

In 2014 the applicant was sentenced to an indeterminate custodial sentence for manslaughter, with a minimum tariff of six years, having been assessed as dangerous.

In March 2021, the Parole Commissioners refused to direct his release. The Commissioners cited a need for prolonged and sustained testing in order to be satisfied that the risk which he posed could be managed in the community.

There was no challenge to that decision, but the applicant alleged failures by the respondents to provide him with opportunities to demonstrate his suitability for release. He sought mandatory orders compelling the respondents to permit him to participate in purposeful periods of temporary release; provide some bespoke programme of testing which would allow him to show evidence of risk reduction; and put in place a system for the assessment of eligibility for pre-release testing.

In August 2019, the applicant was afforded periods of accompanied and unaccompanied temporary release. However, on his return, he was segregated from other prisoners, on suspicion of bringing drugs into prison.

During this period, he also failed a drugs test which resulted in his suspension from any further temporary release for a period of three months.

By the time he was again eligible, all testing had been suspended due to the Covid-19 pandemic. It was only recommenced in April 2021.

The Parole Commissioners

In August 2020, a panel of Parole Commissioners reviewed the applicant’s case and stated that a sustained period of testing was necessary prior to his release. The applicant again failed a drugs test in May 2021 and was suspended from release for a further period of three months.

These proceedings were issued in June 2021, and the applicant complained that the recommendations of the Parole Commissioners had been ignored and no opportunities had been provided to him to demonstrate his suitability for release.

However, he failed another drug test in October 2021. He ultimately passed a drug test in March 2022. Following this, his case was considered by another panel of Parole Commissioners, who directed that the applicant not be released.

The panel did, however, describe the lack of progress as “an unsatisfactory state of affairs”. They recommended a review of his security status; prioritising the applicant for pre-release testing; and holding a multi-disciplinary case conference on his case within 28 days.

The applicant’s claim for judicial review rested on two principal arguments:

1. The respondents breached the duty they owed him pursuant to Article 5 ECHR; and
2. The respondents failed to adhere to the recommendations of the Parole Commissioners.

Consideration

In analysing any potential breach of Article 5, the court first considered the relevant chronology. During 2018 and 2019, the applicant had benefited from periods of release, but then failed a drug test in November 2019.

The court described this incident as “a matter for which he bears entire responsibility”. This rendered him ineligible for any further pre-release testing for a period of three months, which expired just at the outbreak of the pandemic.

In March 2020, access to and exit from prison was tightly restricted, in order to prevent the spread of the virus. Any entry to the prison was followed by a period of isolation for 14 days.

As a result, no further steps could be taken to facilitate testing until April 2021, following the advice from the Northern Ireland Executive.

The applicant then failed a further drug test in May 2021, again rendering himself ineligible for any pre-release testing for a period of three months.

In light of these events, the court found that it was evident that the applicant had been provided with pre-release treatment opportunities, but that his own misconduct, and the pandemic, were the reasons why his progress was “derailed”.

Since February 2022, further opportunities had been provided to the applicant and he availed of those. Ultimately, the court noted, “it will be a matter for the Parole Commissioners to be satisfied that the statutory test for release has been met”.

The court found that the circumstances of the case did not reveal any breach of Article 5. The obligation imposed by law was to afford a reasonable opportunity for the applicant to avail of pre-release treatment. In the context of the pandemic, the applicant was afforded a reasonable, albeit imperfect, opportunity.

Finally, it was argued that there was a failure to comply with the recommendation to hold a case conference within 28 days of the date of the decision. The court noted that there is a distinction between a case conference, which is attended by the prisoner, and a case discussion, which is not.

Here, a case discussion was in fact held within 28 days, in line with the recommendations of the Parole Commissioners.

Conclusion

Ultimately, the court was satisfied that there had been no breach of the duty owed to the applicant, or that any such breach had adversely impacted upon the applicant’s ability to meet the threshold required for his release.

For these reasons, none of the grounds for judicial review had been made out and the application was dismissed.