Court of Appeal

DOI10.1177/002201830006400404
Publication Date01 August 2000
SubjectArticle
Court
of
Appeal
Prisoner Seeking Early Release: Right to Information
Rv
Home
Secretary
and
another,
ex pAllen [2000] The
Times,
21
March
A
prisoner
who
had
been
sentenced
to less
than
four
years'
imprison-
ment
was
being
considered
for
early
release,
on
condition
of
home
detention
curfew.
During
that
period
of assessment,
he
was
given
no
information,
was
shown
no
relevant
documents
and
was
given
no
opportunity
to
make
representations.
He
was
refused
such
early
release
and
appealed
to
the
Governor,
who
confirmed
the
refusal
without
his
being
given
information
or
materials
or
an
opportunity
to
make
repre-
sentations.
He applied to
the
High
Court
for
judicial
review
of
that
decision, as
confirmed
by
the
Home
Secretary. In
the
High
Court,
Hidden
J
held
that
the
application
succeeded
as
the
refusal to release
him
on
condition
of
home
detention
curfew
monitored
by tagging
was
reached
in
breach
of
natural
justice as
he
should
have
had
the
materials
and
information
in
question
during
the
process of
assessment
together
with
the
opportunity
to
make
representations
during
that
assessment
and
before
the
decision to refuse
early
release.
Sections 99
and
100
(1) of
the
Crime
and
Disorder
Act 1998 in-
troduced
ss 34A
and
37A
into
the
Criminal
Justice
Act 1991
empower-
ing
the
Home
Secretary
to
order
the
early release of
certain
prisoners
on
terms
of
home
detention
curfew
enforced
by tagging
and
thereby
con-
ferred
on
him
an
unfettered
discretion. The issue
before
the
Court
of
Appeal
was
whether,
and
also
when,
the
prisoner
had
a
right
to
informa-
tion
and
relevant
materials
and
to
make
representations.
HELD,
ALLOWING
THE
APPEAL,
that:
1.
There
is a
distinction
between
the
process of
assessment
and
that
of
an
appeal
to
the
Governor
or to
the
Home
Secretary.
2. The process of
appeal
is
one
which
requires
the
observance
of
procedural
rights to fairness,
but
these
rights arise
only
when
the
assessment
process is
complete
and
there
has
been
instituted
an
appeal
for
the
resulting
refusal of release.
The.judge
was
therefore
in error, in
that
he
had
found
that
the
procedural
requirements
on
appeal
had
also
existed
before
the
assessment
process
had
ended
in
arefusal
or
an
appeal
therefrom.
The
prisoner's
right
to plead his
cause
arose
only
on
appeal,
which
is itself afresh
hearing.
The
judge
had
therefore
'gone
too
far' in
requiring
that
the
rights of
representation,
information
and
materials
be
granted
before as-
sessment
had
been
completed.
The
court
pointed
out
that
the
Home
Office Circular 0112000
Prison
Service
Order
Home
Detention
CurfewP506700does
not
entitle
a
prisoner
to
early release as a
matter
of
law
and
that
it does
not
impose
any
fetter
on
the
Home
Secretary's
discretion
or
make
any
requirement
that
the
prisoner
be
given
'rights'
before
the
period
of
assessment
has
been
completed.
3'63
The Journal
of
Criminal Law
COMMENTARY
The court's decision is as to
the
application of
the
principles
ennunciated
by Lord Mustill in R v
Home
Secretary,
ex p
Doody
[1994] 1 AC 531 at 560
which
stated
that
fairness
and
natural
justice
required
aright to repre-
sentation, information
and
materials as
part
of
an
appeal procedure. This
decision is
that
that
procedure
(and
therefore
that
requirement)
begins
only
when
there
is
an
appeal from a refusal,
which
appeal is a
hearing
de
novo,
where
alone
the
prisoner's procedural rights to
the
rules of fairness
begin. The principle
that
a
person
must
know
the
case against
him
(as
laid
down
in Exp
Doody)
is
met
by
the
right of appeal to
the
Governor, on
which
occasion all
the
procedural
requirements
laid
down
in
that
case
are applicable, as
the
court
had
confirmed,
notwithstanding
the
absence
of
any
express provision for those rights in
the
Home Office Circular.
But
before
the
refusal
and
appeal, there is
no
reason
why
the
prisoner
should
know
that
the
authorities are considering
the
possibility of his
early release. Indeed, if every step
taken
by
the
prison staff
had
to be
scrutinised by
the
prisoner
and
was
open
to objection by him, this
would
undoubtedly
prolong
the
process of assessment
and,
in
the
end,
defeat it.
When
Possession of
an
Imitation
Firearm
Becomes
an
Offence
R v
Nelson
(2000) The
Times,
7March
It
was alleged
that
the
appellant
entered
aSainsbury's
supermarket,
took asandwich off a shelf
and
ate it, discarding
the
wrapper
and
leaving
the
store
without
any
attempt
to pay for it. He was arrested outside
the
store.
It
was claimed
that
the
arrest was lawful because it was based
on
areasonable suspicion
that
he
had
committed
theft. He was prosecuted
on
an indictment containing
two
counts: (1) theft
and
(2)
an
ancillary
firearms offence
contrary
to s 17(2) of
the
Firearms Act 1968. That
charge arose from
the
fact
that
he was found,
on
arrest, to
have
in his
possession
an
imitation firearm.
At the outset of
the
trial,
the
judge
was asked to rule
on
asubmission
of
the
prosecution
that
aconviction
on
the
firearms charge could
properly be obtained
without
the
prosecution having first to
prove
that
he was guilty of theft.
It
was argued
that
it sufficed
that
he
had
the
imitation firearm
on
him
when
he was lawfully arrested
on
suspicion of
having committed
an
offence (theft)
named
in Sched 1 to
the
1968 Act.
The judge accepted this submission
and
ruled accordingly;
whereupon
he pleaded guilty
and
was sentenced to six
months'
imprisonment
on
the
firearms count, to be served consecutively to a 30
months'
sentence
which
had
just
been
imposed, on a wholly separate
indictment
for
the
totally
unconnected
offence of
attempted
robbery, to
which
he
had
pleaded guilty.
364

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