PROCEDURE

The case originated in an application (no. 55863/11) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr David Thomas (“the applicant”), on 28 August 2011.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis, of the Foreign and Commonwealth Office.

The applicant alleged, in particular, that his detention following the expiry of his tariff was unlawful in light of the failure of the authorities to put in place the necessary resources to enable him to demonstrate to the Parole Board that his risk had reduced, and that his Parole Board Review was a meaningless exercise.

On 2 September 2013 the complaint under Article 5 § 1 was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1968 and is currently detained in HMP North Sea Camp.

On 8 January 2008 he was convicted of attempted kidnapping. He received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of one year and nineteen days was fixed.

In July 2008 it was identified that the applicant was required to complete the Controlling Anger and Learning to Manage it (“CALM”) course to reduce his risk.

On 12 December 2008 he was transferred to HMP Stocken in order to participate in the CALM course.

The applicant’s tariff expired on 26 January 2009.

In March 2009 he commenced the CALM course. He completed it on 28 May 2009.

On an unknown date he completed the Alcohol Awareness and assertiveness and decision-making courses.

On 17 February 2010 an oral hearing took place before the Parole Board to review the applicant’s detention. On 26 February 2010 the Parole Board notified him that it had decided not to order his transfer to open conditions or release. It concluded that his level of risk remained incompatible with his safe management in open conditions.

By letter dated 21 June 2010 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. His review period was set at eighteen months. The review was therefore scheduled to commence in February 2011 with an oral hearing by the Parole Board in August 2011.

In September 2010 a sentence plan review took place and identified a further course, the Sex Offenders Treatment Programme (“SOTP”), for completion by the applicant. He had failed to admit before September 2010 that there was potentially a sexual element to his offence. Prior to commencement of the SOTP, a Structured Assessment of Risk and Need (“SARN”) was to be conducted.

In October 2010 the applicant complained to the prison requesting information on when the SARN would take place. On 17 November 2010 he was informed that he would have to be transferred to another prison establishment for assessment because of resource issues.

On 17 December 2010 he was moved to HMP Acklington for assessment.

On 20 January 2011 his solicitors sent a letter before claim to the governor of HMP Acklington and the Secretary of State indicating that judicial review proceedings were being considered in respect of the delay in arranging the assessment for the SOTP.

On 25 January 2011 the applicant’s offender supervisor contacted a forensic psychologist in training in order to discuss the applicant’s case. They agreed that an initial SOTP assessment should be completed.

By letter dated 8 February 2011 the Ministry of Justice informed the applicant that the assessment of his suitability for the SOTP would be completed by the end of February 2011. He would then be placed on a waiting list for the appropriate course.

The SOTP assessment was completed on 6 April 2011 and concluded that the applicant was motivated to engage in sex offender treatment.

On 7 April 2011 the forensic psychologist in training sought clinical guidance on the applicant’s case from the Operational Services Intervention Group (OSIG”). The OSIG decided that a Risk Matrix 2000 (“RM2000”) was required as well as a Treatment Needs Analysis (“TNA”) to assess the level of dynamic risk posed by the applicant.

On 23 June 2011 a forensic psychologist in training interviewed the applicant and told him that he had been referred for a TNA and RM2000. The applicant was informed that his case would be progressed over the next three months.

On 30 July 2011 the Parole Board reviewed the applicant’s case on the papers. By letter dated 18 August 2011 it informed him that it had not directed his release or recommended his transfer to open conditions. It explained: “The panel is satisfied that until you have undertaken the offending behaviour work that will be identified by the forthcoming assessments and ... a full assessment has been completed of your response to treatment it will be difficult to conclude that you have addressed the core factors that caused you to offend.”

On 31 August 2011 the TNA was completed.

By letter dated 28 September 2011 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. She considered that risk factors, namely sexual offending, thinking skills and behaviour and alcohol misuse, were outstanding. The letter clarified that the Secretary of State could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources.

The applicant’s next review was set to commence in August 2012 and be completed by April 2013. The review period was made up of, inter alia, appropriate assessments, completion of sexual offender behaviour work, participation in the post-course review and the preparation of the SARN report.

At some point he was transferred to HMP Northumberland.

On 9 November 2011 he was told by prison staff that he was on a list of prisoners being considered for the next SOTP.

On 24 November 2011 the TNA and Treatment Pathway reports were completed. The applicant was deemed suitable for the SOTP. The reports were disclosed to him on 2 December 2011.

On 22 December 2011 his solicitors wrote to the governor of HMP Northumberland requesting that immediate steps be taken to place the applicant on the next SOTP. They expressed the view that there had been no progress since the April 2011 assessment.

On 3 May 2012 the applicant commenced the SOTP. He completed the course in November 2012.

A new target date of June 2013 was set to assess whether an oral Parole Board hearing ought to be held in his case. The outcome of the review is not known

A SARN report was produced on 3 April 2013.

On 4 October 2013 the Secretary of State accepted the applicant’s request for an exceptional transfer to open conditions. He was transferred on 5 November 2013.