JUDGMENT
R (on the application of Whiston) (Appellant) v
Secretary of State for Justice (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
2 July 2014
Heard on 26 March 2014
Appellant Respondent
Hugh Southey QC Nathalie Lieven QC
Amanda Weston Alison Chubb
(Instructed by Chivers
Solicitors)
(Instructed by Treasury
Solicitors Department)
LORD NEUBERGER (with whom Lord Kerr, Lord Carnwath and Lord
Hughes agree)
Introductory
1. On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18
months in prison for robbery. He was entitled to automatic release on licence
after serving half his sentence, ie on 5 July 2011. However, on 21 February 2011,
he was released on licence under a so-called home detention curfew pursuant to
section 246 of the Criminal Justice Act 2003. On 7 April 2011, the Secretary of
State decided to revoke the licence under section 255 of the 2003 Act, because
the appellant’s whereabouts could no longer be monitored in the community, and
he was recalled to prison. The decision of the Secretary of State was not subject
to any statutory judicial control or review.
2. The question raised on this appeal is whether a person released from
prison on a home detention curfew, and then recalled to prison under section 255
of the 2003 Act, has rights pursuant to article 5(4) of the European Convention
of Human Rights. More broadly, the appeal raises the issue of how far it is open
to a person who is still serving a sentence imposed by a court to invoke article
5(4).
The relevant domestic law
3. All the statutory provisions relevant to this appeal are in the 2003 Act,
but, as has been regrettably familiar in the field of criminal law, the provisions
have been successively amended or added to by subsequent legislation. As these
amendments and additions do not affect the analysis of the arguments or the
outcome, I shall describe the provisions in their current form, namely as amended
most recently by the Legal Aid, Sentencing and Punishment of Offenders Act
2012.
4. Where a person has been convicted and given a determinate prison
sentence of twelve months or more (a “sentence period”), section 244(1)
provides that, subject to certain specified exceptions, once he has served half his
sentence, “it is the duty of the Secretary of State to release him on licence”.
Section 244(3) defines the first half of the sentence period as the “requisite
custodial period”, at the end of which he is thus entitled to be released on licence.
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5. A prisoner may also be released on licence during the requisite custodial
period under section 246(1), which, so far as is relevant, is in the following terms:
“Subject to subsections (2) to (4), the Secretary of State may
release on licence under this section a fixed-term prisoner at any
time during the period of 135 days ending with the day on which
the prisoner will have served the requisite custodial period…..”
Subsection (2) limits this power in relation to short sentences, and subsection (4)
excludes the operation of subsection (1) in certain other cases, including cases
where “(aa) the sentence is for four years or more” and “(g) the prisoner has been
released on licence under this section at any time and has been recalled to prison
under section 255(1)(a)”.
6. Section 250(4) states that any licence “(a) must include the standard
conditions”, which are stated to be “such conditions as may be prescribed”, and
“(b) may include” (i) any condition authorised by certain other statutes, and “(ii)
such other conditions of a kind prescribed by the Secretary of State … as [he]
may for the time being specify in the licence”.
7. Section 250(5) provides that a licence granted under section 246 must be
subject to a curfew condition in accordance with section 253, which is in the
following terms:
“(1)…. [A] curfew condition is a condition which—
(a) requires the released person to remain, for periods for the time
being specified in the condition, at a place for the time being so
specified ….. and
(b) includes requirements for securing the electronic monitoring of
his whereabouts during the periods for the time being so specified.
(2) The curfew condition may specify different places or different
periods for different days, but may not specify periods which
amount to less than 9 hours in any one day ….
(3) The curfew condition is to remain in force until the date when
the released person would (but for his release) fall to be released
… on licence under section 244.”
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Thus, a curfew condition cannot operate beyond the end of the requisite custodial
period, the point at which the prisoner would in any event be entitled to be
released. The place specified in a person’s licence is normally his home, and for
that reason a licence under section 246 is often known as “home detention
curfew”.
8. By virtue of section 249, a licence, whether under section 244 or 246,
remains in place until the end of the sentence period, unless the licence is revoked
and the person subject to the licence (the “licensee”) recalled. The Secretary of
State has the power to revoke a licence and recall a licensee back to prison
pursuant to two different statutory provisions.
9. First, section 254(1) of the 2003 Act gives the Secretary of State a general
power to revoke any licence and to recall the licensee to prison. Where the power
of revocation is exercised under section 254(1), the licensee is entitled pursuant
to section 254(2) to be told the reasons for his recall and to make representations
to the Secretary of State, who can cancel the revocation of the licence under
section 254(2A). Sections 255A-255C contain provisions which apply when a
licence is revoked under section 254(1) and the revocation is not cancelled. In
general terms, in such an event, the Secretary of State may release the former
licensee, if satisfied that he “will not present a risk of serious harm to the public”,
and, if she is not so satisfied, she must refer the case to the Parole Board for a
binding ruling within that period if the prisoner makes representations. If there
is no such release, the Secretary of State must refer the question of the former
licensee’s release to the Parole Board within 28 days of his return to custody –
see sections 255B(4) and 255C(4).
10. Secondly, section 255(1) confers a specific power on the Secretary of
State to revoke a section 246 licence or home detention curfew, and it provides
as follows:
(1) If it appears to the Secretary of State, as regards a person
released on licence under section 246 –
(a) that he has failed to comply with any condition
included in his licence, or
(b) that his whereabouts can no longer be
electronically monitored at the place for the time
being specified in the curfew condition included in
his licence,
the Secretary of State may, if the curfew condition is still in force,
revoke the licence and recall the person to prison under this
section.”
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Thus, the power of recall under section 255 can only be exercised whilst the
curfew condition is in force – ie until the end of the requisite custodial period,
when the licensee would have been entitled to be let out on licence as of right.
(Thereafter, the licence can only be revoked under section 254). Further, section
255(2) provides for a licensee to be given the reasons for his recall and the
opportunity to make representations to the Secretary of State, who can cancel the
revocation pursuant to section 255(3). However, unlike the position in relation
to the section 254 power of recall, there is no provision for review by the Parole
Board of the exercise of the Secretary of State’s section 255 power of recall.
11. Accordingly a prisoner can be recalled under section 255 even if he has
fully complied with the conditions of the licence. The procedural safeguards are
that the recalled prisoner must be given reasons for the recall and be able to make
representations about them.
12. So the statutory position in relation to determinate sentences is, in outline,
as follows:
a) All prisoners are entitled to release on licence after serving
half their sentence;
b) If recalled, a prisoner is either entitled to re-release after 28
days or to referral to the Parole Board, whose decision on
re-release is binding;
c) There may be discretionary release, sanctioned by the
Secretary of State, for the limited period of up to 135 days
before the prisoner becomes entitled to release at the half
way mark in his sentence.
d) This discretionary release is also on licence but the licence
must additionally incorporate Home Detention Curfew
terms.
e) During the period of the discretionary release, the prisoner
may be recalled not only for breach of licence or
demonstrated risk to the public but also because the Home
Detention Curfew system cannot be made to work in his
case. He must be given the reasons and is permitted to make
representations to the Secretary of State.
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f) Such recall within the limited period of up to 135 days is
not subject to Parole Board or court review, but
g) So soon as the half way stage in his sentence is reached, the
automatic Home Detention Curfew terms fall away and the
rules set out at (a) and (b) apply.
13. There are quite separate rules for prisoners serving indeterminate terms,
where the criteria for release on licence, recall or re-release on licence are largely
geared to current risk to the public; in such cases all decisions are referable to
the Parole Board whose ruling is binding.
Article 5(4) of the Convention
14. The short point raised in this appeal is whether a recall to prison under
section 255, without a right of review by the Parole Board or any other judicial
body, is consistent with article 5(4) of the Convention.
15. Article 5(1)(a) of the Convention provides as follows:-
“Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law: (a) the lawful
detention of a person after conviction by a competent court … .”
16. Article 5(4) states:
“Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release
ordered if the detention is not lawful.”
17. As Elias LJ observed below in para 12, there is a close relationship
between these two provisions. Article 5(1)(a) recognises the right to liberty, and
provides that a person should not lose his liberty save by being lawfully detained
following a conviction by a tribunal which is judicial in character. Article 5(4)
confers an associated right on a detained person to challenge the lawfulness of
his detention before a tribunal which is judicial in character, and to have effect
given to the decision of that tribunal.
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The parties’ respective cases
18. The case for each party is simple. The appellant contends that, as a result
of the licence granted on 21 February 2011, he regained his liberty, and the
subsequent revocation of the licence and his consequent recall to prison on 7
April 2011 therefore constituted a deprivation of his liberty which infringed
article 5(4), because, having been effected under section 255 pursuant to a
decision of the Secretary of State, its “lawfulness” was not “decided speedily”,
or indeed at all, “by a court”.
19. The Secretary of State, on the other hand, argues that, at least where, as
in this case, the sentence in question is determinate, in any case where a prisoner,
who has been released on licence, is recalled to prison during the currency of his
sentence period, or at any rate during the requisite custodial period, the
requirements of article 5(4) are satisfied by the original sentence lawfully passed
by the court by which he was originally imprisoned.
20. Somewhat counter-intuitively, the appellant relies on domestic authority,
and in particular on the decision of the House of Lords in R (Smith and West) v
Parole Board [2005] 1 WLR 350 (“West”), whereas the Secretary of State relies
on the jurisprudence of the Strasbourg court. In my opinion, it is right to start by
considering the Strasbourg case law, and then turn to the domestic decisions.
The Strasbourg jurisprudence on article 5(4)
21. In De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373,
para 76, the Strasbourg court said this:
[T]he purpose of article 5(4) is to assure to persons who are
arrested and detained the right to a judicial supervision of the
lawfulness of the measure to which they are thereby subjected ….
Where the decision depriving a person of his liberty is one taken
by an administrative body, there is no doubt that article 5(4)
obliges the Contracting States to make available to the person
detained a right of recourse to a court; but there is nothing to
indicate that the same applies when the decision is made by a court
at the close of judicial proceedings. In the latter case the
supervision required by article 5(4) is incorporated in the decision;
this is so, for example, where a sentence of imprisonment is
pronounced after ‘conviction by a competent court’ …. It may
therefore be concluded that article 5(4) is observed if the arrest or
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detention … is ordered by a ‘court’ within the meaning of [article
5(4)].”
22. This reasoning was distinguished by the court in X v United Kingdom
(1982) 4 EHRR 188, para 51 in relation to indeterminate sentences, where the
court held that, while this observation applied to an ordinary, determinate,
sentence, “it does not purport to deal with an ensuing period of detention in
which new issues affecting the lawfulness of the detention might subsequently
arise”. In Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 47, the court
pointed out that an indeterminate sentence involved “placing recidivists and
habitual offenders at the Government’s disposal”, which required the Minister
of Justice to “direct his mind to the need to deprive or continue to deprive the
person concerned of his liberty”. In such a case, article 5(4) was engaged, and it
required “judicial review, at reasonable intervals, of the justification for the
deprivation of liberty”
23. The effect of the reasoning in De Wilde is demonstrated by two
admissibility decisions of the Strasbourg court. In Ganusauskas v Lithuania
(Application No 47922/99, 7 September 1999), the applicant, who had been
sentenced to six years in prison for obtaining property by deception, complained
about the fact that the District Court permitted the prosecutor to appeal out of
time against a decision to release him conditionally after he had served half his
sentence as “a model prisoner” (a decision which the District Court then
reversed). The Third Section rejected as inadmissible his contention that his
rights under articles 5(1), 5(4) and 6 had been infringed. Relying on De Wilde,
the court said that “article 5(4) only applies to proceedings in which the
lawfulness of detention is challenged”, and added that “[t]he necessary
supervision of the lawfulness of the detention ‘after conviction by a competent
court’, as in the present case, is incorporated at the outset in the applicant’s
original trial and the appeal procedures against the conviction and sentence”.
24. In Brown v United Kingdom (Application No 986/04, 26 October 2004),
the applicant, who had been sentenced to eight years in prison for supplying
heroin, was released on licence after serving two-thirds of his sentence. He was
then recalled on the grounds of changing his residence without approval and
posing a risk to others. His representations to the Parole Board were rejected, as
was his subsequent attempt to seek judicial review. His application, based on the
contention that his rights under articles 5(1), 5(4), 6 and 8 had thereby been
infringed, was rejected as inadmissible by the Fourth Section, which said this so
far as article 5(4) is concerned:
“[W]here an applicant is convicted and sentenced by a competent
court to a determinate term of imprisonment for the purposes of
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punishment, the review of the lawfulness of detention is
incorporated in the trial and appeal procedures. … No new issues
of lawfulness concerning the basis of the present applicant’s
detention arose on recall and no right to a fresh review of the
lawfulness of his detention arose for the purposes of article 5(4) of
the Convention.”
25. Mr Southey QC, for the appellant, argued that, in each of these two cases,
the applicant’s reliance on article 5(4) could have been rejected on the ground
that he had had the opportunity to challenge his recall to prison (in opposition to
the prosecutor’s appeal to the District Court in Ganusauskas, and to the Parole
Board and, arguably, through his application for judicial review, in Brown). That
may well be right, but it does not in any way undermine the fact that, in each
case, the court rejected the article 5(4) complaint on the ground that the article
did not apply at all in circumstances where the recall to prison occurred during
the period of a determinate sentence imposed for the purposes of punishment. I
would add that the reference to punishment cannot have been intended to mean
solely for punishment: determinate prison sentences are imposed for a mixture
of reasons, each of which should, at least normally, be treated as applicable to
the whole of the sentence period.
Domestic jurisprudence on article 5(4)
26. In R (Giles) v Parole Board [2004] 1 AC 1, the House of Lords held that
article 5(4) was not infringed in a case where the appellant had been sentenced
(under statutory provisions which have now been superseded) to a determinate
but increased term to recognise the risk to the public which he represented. He
had served what would have been the unincreased period but remained in prison.
Relying on the reasoning in De Wilde and Van Droogenbroeck, it was held that,
because the protective period had been imposed as part of the original sentence
and was not subject to any control by the executive, but could be reviewed by
the parole board, a judicial body, it did not infringe article 5(4).
27. In his opinion (with which the other members of the committee agreed),
at para 40, Lord Hope described the effect of the Strasbourg jurisprudence
(which he analysed in the thirteen preceding paragraphs) as being that:
“[A] distinction is drawn between detention for a period whose
length is embodied in the sentence of the court on the one hand and
the transfer of decisions about the prisoner’s release or re-detention
to the executive. The first requirement that must be satisfied is that
according to article 5(1) the detention must be ‘lawful’. That is to
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say, it must be in accordance with domestic law and not arbitrary.
The review under article 5(4) must then be wide enough to bear on
the conditions which are essential for a determination of this issue.
Where the decision about the length of the period of detention is
made by a court at the close of judicial proceedings, the
requirements of article 5(1) are satisfied and the supervision
required by article 5(4) is incorporated in the decision itself. That
is the principle which was established in De Wilde, Ooms and
Versyp. But where the responsibility for decisions about the length
of the period of detention is passed by the court to the executive,
the lawfulness of the detention requires a process which enables
the basis for it to be reviewed judicially at reasonable intervals.”
28. Lord Hope expanded on the effect of this distinction at para 51, in these
terms:
“Where the prisoner has been lawfully detained within the
meaning of article 5(1)(a) following the imposition of a
determinate sentence after his conviction by a competent court, the
review which article 5(4) requires is incorporated in the original
sentence passed by the sentencing court. Once the appeal process
has been exhausted there is no right to have the lawfulness of the
detention under that sentence reviewed by another court. The
principle which underlies these propositions is that detention in
accordance with a lawful sentence passed after conviction by a
competent court cannot be described as arbitrary. The cases where
the basic rule has been departed from are cases where decisions as
to the length of the detention have passed from the court to the
executive and there is a risk that the factors which informed the
original decision will change with the passage of time. In those
cases the review which article 5(4) requires cannot be said to be
incorporated in the original decision by the court. A further review
in judicial proceedings is needed at reasonable intervals if the
detention is not to be at risk of becoming arbitrary.”
29. Lord Hutton (with whom the other members of the committee also
agreed) expressed the same view after analysing the Strasbourg jurisprudence in
paras 65-79.
30. In West [2005] 1 WLR 350, the two appellants were licensees who had
been recalled to prison for alleged breaches of their respective licences, which
had been granted under what was effectively the statutory predecessor of section
244(1). Thus, they had each served a sufficient proportion of their respective
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sentences to be entitled to be released on licence. In each case, the Parole Board
had decided not to recommend re-release, having refused to grant an oral hearing
to consider the contention that the revocation of the licence was unjustified and
that the licensee should be re-released. The primary decision of the House of
Lords was that the Parole Board had a common law duty to act fairly, both
substantively and procedurally, when considering whether the revocation of a
licence was justified, and that this would normally require an oral hearing where
questions of fact were in issue – see per Lord Bingham at paras 28-35.
31. However, as Mr Southey rightly says, the House of Lords did consider
the applicability of article 5. In para 36, Lord Bingham held that article 5(1) did
not apply as “the sentence of the trial court satisfies article 5(1) not only in
relation to the initial term served by the prisoner but also in relation to revocation
and recall”. In para 37, he turned to article 5(4), and appears simply to have
assumed that it applied to the proceedings before the Parole Board, and went on
to hold that the requirements of the article were satisfied by its statutory power,
“provided it is conducted in a manner that meets the requirement of procedural
fairness already discussed”. In para 37, Lord Bingham does not appear to have
considered the effect of Ganusauskas or Brown, although he specifically cited
and relied on them in para 36 in relation to article 5(1) – and indeed in relation
to article 6 in paras 40 and 42.
32. Lord Hope agreed with Lord Bingham and while he also referred in para
81 to Ganusauskas and Brown in connection with article 6, he similarly appears
to have assumed, at paras 72-75, that article 5(4) applied without considering
whether that was consistent with those admissibility decisions – or indeed with
what he had said in Giles (which was cited in argument but not relied on in the
judgments –see [2005] 1 WLR 350, 351-352). Lord Walker and Lord Carswell
simply agreed with Lord Bingham. Lord Slynn, who dissented in part, described
his “initial view” as being that “there are not two formal orders for detention” as
that “recall from conditional release was itself empowered by the initial sentence
of the court”, but said that he had “been persuaded by Mr Fitzgerald that this is
too restrictive an approach” – paras 54-55. He justified this conclusion by
reference to the decision of the Strasbourg court in Weeks v United Kingdom
(1987) 10 EHRR 293, para 40.
33. In R (Black) v Secretary of State for Justice [2009] 1 AC 949, the House
of Lords considered a case where the respondent, who, after having been
sentenced to 24 years in prison, had become eligible to be considered for
discretionary release on licence. Under the statutory scheme then in force, he
was eligible for discretionary release on licence after serving half his determinate
sentence, but became entitled to it only after serving two-thirds. Although the
Parole Board recommended that he be released, the Secretary of State decided
that the risk of re-offending was too great. By a majority of four to one, the House
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rejected the respondent’s contention that his rights under article 5(4) were
infringed. In the course of their reasoning, the Law Lords had to grapple with the
argument that the decision in West in relation to article 5(4) was inconsistent
with the reasoning of the Strasbourg court in Ganusauskas and Brown, as
explained by Lord Hope in Giles.
34. Lord Rodger, with whom Baroness Hale agreed, said that he agreed with
Lord Brown, but “explain[ed] shortly how [he saw] the position in the light of
t[the English and Strasbourg] cases” – para 37. Relying on “the constant
jurisprudence of the European Court of Human Rights conveniently summarised
by Lord Hope” in Giles at para 40, he held that the answer to “the question …
whether article 5(4) gives a long-term prisoner, with a determinate sentence …,
the right to take legal proceedings at the halfway stage of his sentence, to
determine the lawfulness of his continued detention” was “No” – paras 45-46.
Lord Carswell referred to Lord Hope’s observations in Giles, and then contrasted
cases such as Van Droogenbroeck, where “the executive authority possessed a
discretion over the time when the prisoner would be released, which was not
fixed at the outset by any judicial decision”, with cases such as Ganusauskas and
Brown, where “the lawfulness of the detention was incorporated at the outset in
the applicant’s original trial and the appeal procedures against conviction and
sentence” – para 57.
35. Lord Brown, with whom Baroness Hale agreed, considered the
Strasbourg jurisprudence at paras 66-71, explaining at paras 66-67 that, so far as
article 5 was concerned, “the Strasbourg court has consistently appeared to treat
determinate sentences quite differently” from indeterminate sentences. He then
considered the domestic decisions, including Giles and West, at paras 71-77. He
next turned to his “[c]onsiderations and conclusions”, which he set out in paras
78-84. He stated at para 81 that “[t]here is nothing intrinsically objectionable
(certainly in Convention terms) in allowing the executive, subject to judicial
review, to take the parole decision”. He then said that the fact that, by statute,
the UK “had chosen to give the Parole Board a role in the process, and statutory
directions as to how to approach that role, and has chosen to fix precisely the
period within a determinate sentence during which the prisoner is to be
considered for parole …[did not] mean that article 5(4) is necessarily thereby
engaged so that the board’s decision must be final” – paras 82-83. He explained
this in para 83, where he said that “[t]he administrative implementation of
determinate sentences does not engage article 5(4); the decision when to release
a prisoner subject to an indeterminate sentence does”.
36. However, in the course of his discussion of the domestic cases, Lord
Brown did refer to the apparent conflict between Ganusauskas and Brown on the
one hand and West on the other, in para 74, where he said this:
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“Inescapably it follows from West that contrary to the view
expressed in the Strasbourg court’s admissibility decision in
Brown, a prisoner’s recall for breach of his licence conditions does
raise, ‘new issues affecting the lawfulness of the detention’ such
as to engage article 5(4). And that seems to me clearly correct: it
would not be lawful to recall a prisoner unless he had breached his
licence conditions and there could well be an issue as to this. I
wonder, indeed, if the European Court would have decided Brown
as they did had it followed, rather than preceded, the House’s
decision in West. Be that as it may, recall cases certainly so far as
domestic law goes, are to be treated as akin both to lifer cases in
the post-tariff period and to the Van Droogenbroeck-type of case
where, upon the expiry of the sentence, a prisoner is subjected to
an executive power of preventive detention.”
37. Lord Phillips, who dissented, effectively relied on the reasoning in West,
on the basis that:
“This decision is in direct conflict with the reasoning of the
Strasbourg court in Brown v United Kingdom. Lord Brown
considers that its effect should be confined to the decision whether
to release a prisoner after recall. I can see no reason for so
confining it; the reasoning is applicable to any decision whether to
release a prisoner on licence.” (para 28)
Discussion
38. If one limits oneself to the decisions of the Strasbourg court to which I
have referred, and the reasoning in Giles quoted above, the law appears to me to
be clear. Where a person is lawfully sentenced to a determinate term of
imprisonment by a competent court, there is (at least in the absence of unusual
circumstances) no question of his being able to challenge his loss of liberty
during that term on the ground that it infringes article 5(4). This is because, for
the duration of the sentence period, “the lawfulness of his detention” has been
“decided … by a court”, namely the court which sentenced him to the term of
imprisonment.
39. That does not appear to me to be a surprising result. Once a person has
been lawfully sentenced by a competent court for a determinate term, he has been
“deprived of his liberty” in a way permitted by article 5(1)(a) for the sentence
term, and one can see how it follows that there can be no need for “the lawfulness
of his detention” during the sentence period to be “decided speedily by a court”,
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as it has already been decided by the sentencing court. If that is the law, it would
follow that Mr Whiston’s appeal in this case must fail.
40. On this approach, article 5(4) could not normally be invoked in a case
where domestic discretionary early release provisions are operated by the
executive in relation to those serving determinative terms. I accept that, in the
absence of the clear Strasbourg jurisprudence, there would be an argument for
saying that article 5(4) should apply in such cases. However, as already observed,
the notion that the article is not engaged because of the original sentence appears
entirely principled, and the consequence that a person under such a regime has
to rely on his domestic remedies, at least unless other Convention rights are
engaged, seems to me to be not unreasonable in practice.
41. However, the issue is complicated by the decision of the House of Lords
that article 5(4) was engaged in West, because, if the legal analysis just
summarised were correct, article 5(4) would not have been engaged in West. I
am bound to say that the decision in West appears to me to be unsatisfactory in
relation to article 5(4) – and, it should be emphasised, only in relation to article
5(4). First, although the relevant Strasbourg cases were cited in the judgments
they were not followed on this point, and, save in the opinion of Lord Slynn,
there was no explanation why not. Secondly, although Giles was referred to in
argument, it was not cited in any opinion, and therefore no consideration appears
to have been given to the observations of Lord Hope quoted above. Thirdly, at
least in the four majority judgments it was not so much decided that article 5(4)
was engaged; rather, it seems to have been simply assumed. Fourthly, in the fifth
judgment, Lord Slynn’s explanation as to why he departed from his initial view
that article 5(4) was not engaged was, with respect, plainly unsatisfactory, as the
Strasbourg decision he relied on, Weeks, was a case involving an indeterminate
sentence.
42. When one turns to Black, the position can be said to be yet murkier. In
their opinions, Lord Rodger (although he agreed with Lord Brown) and Lord
Carswell steered clear of West, and simply treated the law on article 5(4) to be
as stated by Lord Hope in Giles, para 40 (and, in the case of Lord Carswell, by
the Strasbourg court in Van Droogenbroeck, Ganusauskas, and Brown). Lord
Brown and Lord Phillips both considered that, so far as article 5(4) was
concerned, West was inconsistent the Strasbourg jurisprudence. Lord Phillips
(dissenting in the result) preferred to follow West, whereas Lord Brown in an
obiter observation, preferred to limit the scope of West.
43. The question, then, is what we should do about this unsatisfactory state of
affairs. Mr Southey argues that we should follow Lord Brown’s approach in his
obiter dictum in Black at para 73, and to conclude that article 5(4) applies in this
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case because Mr Whiston is seeking to be released after recall. Ms Lieven QC,
for the Secretary of State, argues that we should follow the Strasbourg
jurisprudence, as explained and applied in Giles, and hold that Mr Whiston
cannot invoke article 5(4), as, so long as his sentence period was running, it had
been satisfied by the sentence which was imposed at his trial.
44. I have reached the clear conclusion, in agreement with the Court of
Appeal, that we should reach the conclusion advocated by Ms Lieven. As already
explained, it clearly appears to be the conclusion which the Strasbourg court
would reach. The fact that Ganusauskas and Brown were admissibility decisions
strengthens their force rather than weakens it: in each case, the court considered
the applicant’s argument on article 5(4) to be so weak, for the reasons it gave,
that it was not even worth proceeding to a decision.
45. I have some difficulty with the notion, implied by Lord Brown in para 74
of Black, that a court in this country should hold that the reach of article 5(4) is,
as it were, longer than the Strasbourg court has held. Assuming (as may well be
right, and will no doubt have to be considered in a future case) that a United
Kingdom court could, in principle, decide that article 5(4) applied in Mr
Whiston’s case in the face of clear Strasbourg jurisprudence that it would not, I
am quite unconvinced that it would be appropriate to do so. Unless and until I
am persuaded otherwise on the facts of a particular case, it seems to me that the
common law should be perfectly well able to afford appropriate protection to the
rights of people in the position of Mr Whiston without recourse to the
Convention. The decision in West demonstrates that the common law affords
protection in such circumstances, and Lord Brown’s actual conclusion in Black
underlines the very limited nature of any exception which he had in mind in his
obiter observations.
46. It would be wrong not to confront squarely the decision in West on article
5(4) and Lord Brown’s obiter dictum in Black, para 74. As Elias LJ said at [2014]
QB 306, para 1, there is “a growing number of cases which have bedevilled the
appellate courts on the question whether and when decisions affecting prison
detention engage” article 5(4). As he added, “[p]roblems arise because of the
combination of general and imprecise Strasbourg principles and the complexity
of English sentencing practices”. I believe that this makes it particularly
important that we grasp the nettle and hold that (i) the decision in West was per
incuriam so far as it involved holding (or assuming) that article 5(4) was
engaged, and (ii) the obiter dictum of Lord Brown in Black, para 74 is wrong in
so far as it suggests that the law of the UK in relation to article 5(4) differs from
the Strasbourg jurisprudence as summarised by Lord Hope in Giles, paras 40 and
51.
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47. So far as West is concerned, I have already identified certain problems in
para 41 above. Furthermore, and importantly, it is not as if the actual decision in
West thereby stands in any way impugned. As the headnote records, at [2005] 1
WLR 350-351, the conclusion reached by the House of Lords was primarily
based on the appellant’s common law rights, as is reflected in Lord Bingham’s
opinion, which devotes nine paragraphs to the common law and one to article
5(4). I suspect that the reason that the appellant’s Convention rights were
considered was that one of the appellants had not relied on the common law in
the Court of Appeal (see para 33). Properly analysed, all five opinions in Black
support the view that West was per incuriam to the extent I have suggested. Lord
Phillips and Lord Brown both expressly said it is inconsistent with the Strasbourg
jurisprudence, and Lord Rodger and Lady Hale agreed with Lord Brown. Lord
Rodger (with whom Lady Hale also agreed) and Lord Carswell each made it
clear that they regarded the law as accurately set by Lord Hope in Giles, which
is inconsistent with West so far as the applicability of article 5(4) is concerned.
48. As to Lord Brown’s observation in Black at para 74, apart from being no
more than an obiter dictum, it is inconsistent with the analyses of Lord Rodger
and Lord Carswell in the same case. I must also confess that, in agreement with
Lord Phillips, it seems rather hard to reconcile the reasoning which led Lord
Brown to dismissing the appeal with his observations in para 74. It is true that
Lord Rodger and Baroness Hale agreed with Lord Brown, but I do not think it
would be right to take such a general agreement as approving every sentence in
Lord Brown’s opinion, at least in so far as a sentence is not part of his
“[c]onsiderations and conclusions”. Quite apart from that, it does not appear to
have been argued in Black that it was wrongly held or assumed in West that
article 5(4) was engaged, and therefore it is unsurprising that, in so far as they
considered West, the opinions in Black proceeded on the basis that it was rightly
decided. Indeed, the inconsistencies and uncertainties on this issue engendered
by the opinions in Black appear to me to support the view that West was wrong
in so far as it held or assumed that article 5(4) was engaged.
49. Having had the benefit of reading Lady Hale’s judgment, I would add that
it may be that the Strasbourg court would want to reconsider their jurisprudence,
but, at the moment, it appears to me that it has the effect discussed above.
Conclusion
50. For these reasons, which reflect the reasons expressed in the very clear
judgment of Elias LJ in the Court of Appeal, I would dismiss this appeal.
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LADY HALE
51. I agree that this appeal should be dismissed but I wish to sound a note of
caution about some of the reasoning which has led Lord Neuberger to reach that
conclusion. In my view, the present law draws a principled distinction between
those determinate prisoners who have reached the point in their sentence at
which they are entitled to be released on licence and those who have not. If the
former are recalled from their licence, and their representations to the Secretary
of State fall on deaf ears, they are entitled to have their case referred to the Parole
Board. The latter, whose release on licence was discretionary, are not.
52. In Brown v United Kingdom (unreported, Application No 986/04, 26
October 2004) the Strasbourg court pointed out that there was a crucial
distinction between prisoners serving a determinate sentence of imprisonment
and those serving a life sentence. Once the latter had served the punishment part
of their sentences, the reason for detaining them was not to punish them for their
original offence but because they posed a continuing risk to the public. Hence
article 5(4) required that their continued imprisonment had be subject to periodic
judicial scrutiny. A determinate sentence, on the other hand, had been imposed
by a court as punishment for the offence and that justification continued for its
duration. “The lawfulness of his detention does not depend, in Convention law
terms, on whether or not he ceases to be at risk of re-offending” (page 5).
53. The court went on to say that “The fact that the applicant before the end
of the sentence may expect to be released on licence does not affect this analysis”
(page 5). However, the position in our law is rather stronger than an expectation
of release on licence. The prisoner is legally entitled to be released at a certain
point in his sentence. This is irrespective of the risk that those responsible for his
imprisonment may consider that he poses to the public. In a very real sense,
therefore, the sentence imposed by the court as punishment for the offence is half
the actual term pronounced by the judge (and indeed the judge has to explain this
to him when imposing it). I appreciate, of course, that the judge imposes the
sentence which he or she thinks correct, without regard to the right to early
release. The whole of the sentence is intended as punishment. Once released at
the nine month point, the prisoner remains liable to recall for the remainder of
the term. However, the reasons for his recall could then be subject to scrutiny by
the Parole Board, which will focus upon whether or not he poses a risk of reoffending or otherwise endangering the public. Thus it can be said that, once a
prisoner has passed the point of mandatory release on licence, the basis for any
later recall and detention is the risk of reoffending rather than the original order
of the court, and article 5(4) applies.
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54. Drawing this distinction is in fact consistent with the results of the
domestic authorities. In R (Giles) v Parole Board [2004] 1 AC 1, Mr Giles had
been sentenced to term of imprisonment totalling seven years which was “longer
than commensurate” with the offences he had committed. He was entitled to be
considered for parole after he had served half of this and to be granted parole
after he had served two-thirds. His complaint related to the absence of automatic
reviews once he had served whatever period the judge had thought
commensurate with the gravity of his offending (which the judge was not
required to and did not specify). The issue was whether a determinate sentence
which was partly punitive and partly preventative was in the same category as
an indeterminate sentence and thus incompatible with article 5(4) unless (at least
after the commensurate part had been served) there was a review before a judicial
body with power to order release. The issue was not whether a prisoner who had
been released, still less a prisoner with the right to be released, had the same
rights as an indeterminate prisoner if recalled. Furthermore, it is difficult to
characterise the position after a prisoner has reached the point of mandatory
release as simply the administration of the sentence which has been imposed by
the court. Parliament has decided that the prisoner is entitled to release and the
criteria for recall and re-release are quite different from those which led the judge
to impose the original sentence.
55. In R (West) v Parole Board [2005] 1 WLR 350, Mr West and Mr Smith
were recalled after their mandatory release. As with the more recent case of R
(Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, the case was
concerned with the procedures to be adopted by the Parole Board when
considering whether they should be re-released, and specifically whether the
prisoner should be given an oral hearing. Although the opinions concentrate
upon the common law requirements of fairness, I do not find it at all surprising
that Lord Bingham appears to have taken it for granted that article 5(4) applied.
Lord Slynn required to be convinced of that, but was persuaded by the analogy
with the recall of a prisoner serving an indeterminate sentence. In Weeks v United
Kingdom (1988) 10 EHRR 293, the Strasbourg court had held that article 5(4)
applied. While I entirely accept that there is no analogy between a determinate
and an indeterminate sentence, so as to require a review while the prisoner is still
in prison, the analogy between the recall of a determinate sentence prisoner who
was entitled to be released and the recall of an indeterminate sentence prisoner
is much closer.
56. In R (Black) v Secretary of State for Justice [2009] UKHL 1, [2009] 1 AC
949, Mr Black had not yet reached the point in his sentence when he was entitled
to be released on licence. He was arguing that article 5(4) applied once he
became eligible for discretionary release, so that it was a violation of his rights
for the Secretary of State to reject the Parole Board’s recommendation that he be
released. So his too was not a case of recall after mandatory release. Once again,
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I do not find it surprising that Lord Brown considered that West was correctly
decided; he was well aware of the difference between discretionary and
mandatory release, but did not think that the opinions in West drew any
distinction between them (para 73). I now think that this was a distinction which
ought to have been given greater prominence and that it is a good reason for
holding that their Lordships in West were correct in taking the view that article
5(4) applied.
57. The only case which is not consistent with this analysis is Strasbourg’s
admissibility decision in Brown. Lord Neuberger is, of course, correct to say that
the decision was based on the fundamental distinction between determinate and
indeterminate sentences; but the court appears not to have considered whether
there might be a distinction between recall after mandatory and discretionary
release; further, the case had been considered by the Parole Board, which had the
power to order his release, although this was before West, and so there had not
been an oral hearing. Ganusauskas v Lithuania (unreported, Application No
47922/99, 7 September 1999), in contrast, not only appears to be a case of a
proposed discretionary early release, but also one which was considered by a
court.
58. In this case, Mr Whiston was still serving the period of imprisonment
which resulted from the sentence imposed upon him by the court: it is called “the
requisite custodial period”. He was not yet entitled to release. Discretionary
release subject a home detention curfew enforced by electronic monitoring may
or may not be regarded as a continued deprivation of liberty, depending upon the
length of the curfew, but it is very close to it. The prisoner may be recalled for
the purely practical reason that it is not possible to monitor him at his address,
which is nothing to do with whether he still constitutes a risk. It is the original
sentence which means that he is still a prisoner.
59. Hence it seems to me that our domestic law, which gives the Parole Board
the power to decide upon the continued detention of a prisoner recalled after
mandatory release on licence, but not after release on home detention curfew,
draws a principled distinction. It is a distinction which is certainly consistent
with the principles contained in article 5(1) and (4) of the European Convention.
It is for that reason that, although agreeing with the ratio of the decision in this
case, I would prefer it not to be taken further than the situation with which this
case is concerned. I comfort myself that the views to the contrary expressed in
Lord Neuberger’s judgment are, strictly speaking, obiter dicta.
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