Mason v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON,Mr Justice Cranston |
| Judgment Date | 28 July 2008 |
| Neutral Citation | [2008] EWHC 1787 (QB) |
| Date | 28 July 2008 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ07X0439 |
[2008] EWHC 1787 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: HQ07X0439
Hugh Southey (instructed by Fisher Meredith LLP) for the Claimant
Sam Grodzinski (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 20 May 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of thisJudgmentthat copies of this version as handed down may be treated as authentic.
Introductory
Concentrating on the core of a right is essential to an understanding of its application in new contexts. The core of the right contained in Article 5(4) of the European Convention on Human Rights is judicial supervision of the lawfulness of detention of persons deprived of their liberty. The purpose is to curb abuses of powerto make accountable those by whom persons are detained. As a preliminary issue in this action my task is to decide how Article 5(4) applies in the context of Home Detention Curfew. Home Detention Curfew is a scheme under which prisoners may be released up to 135 days prior to their automatic release date, but subject to a home curfew, normally for twelve hours a day, monitored by an electronic tag. If the claimant is correct Article 5(4) required a judicial body like the Parole Board to consider whether he qualified for Home Detention Curfew or if he should be recalled, for example, for breach of the curfew.
The claimant in this case was a prisoner serving a determinate sentence of imprisonment of thirty months imposed in September 2003. In these proceedings he seeks damages for breach of Article 5(4) as a result of what he claims was unreasonableunlawful delay by the defendant in 2004 in determining his eligibility for Home Detention Curfew. As this is the determination of a preliminary issue the claimant's case is to be assumed: the process of assessing him for Home Detention Curfew did not begin until after he was eligible,then there was delay in making the decision. Consequently on his account he suffered a loss of liberty since the ultimate decision to grant Home Detention Curfew demonstrated that he would have been released earlier had there not been delay.
Statutorypolicy framework for Home Detention Curfew
The Home Detention Curfew scheme was introduced in 1999. Its operation has varied over the last decade. At the relevant time for these proceedings it was available for short-term prisoners, those serving a sentence of imprisonment for a term of less than four years, when the sentence was three months or more: Criminal Justice Act 1991 (“the Act”), ss.33(5), 34A(1), 34A(3). Certain prisoners were specifically excluded by statute from consideration, such as those serving imprisonment for certain sexual offences, those released on Home Detention Curfew who had been recalledthose where the period they would benefit from was less than 14 days: s.34A(2). Otherwise the Secretary of State had a discretion to release a person on Home Detention Curfew license: s.34A (3). To be eligible a prisoner must have served the requisite period of his sentence, which was defined in s.34A(4) to mean:
i) for a term of three months or more but less than four months, a period of 30 days;
ii) for a term of four months or more but less than eighteen months, a period equal to one-quarter of the term;
iii) for a term of eighteen months or more, a period that is 135 days less than one-half of the term.
The Home Detention Curfew scheme operated against a backdrop at the relevant time of other statutory provisions. With short-term prisoners – those serving less than four years – the Secretary of State was under a duty, once they had served one-half of their sentence, to release them unconditionally if their sentence was less than twelve months,to release them on license if their sentence was more than twelve months: s.33(1). So the half way point was the outer boundary for Home Detention Curfew. Moreover, all prisoners released on Home Detention Curfew were released on license. For those serving less than twelve monthsreleased on Home Detention Curfew their license period terminated at the half way point: s.37(2). For those serving twelve months or more the license remained in force until the date which was calculated by reference to the difference between the three-quarter point of their sentencethe duration of the curfew condition: s. 37(1B).
Long term prisoners – those serving a term of four years or more – were not eligible for Home Detention Curfew. Section 33(2) of the 1991 Act provided: “As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on license.” However, section 35(1) gave the Secretary of State a discretion to release on license a long term prisoner who had served one half of the sentence, if recommended by the Parole Board. By reason of the Parole Board (Transfer of Functions) Order 1998, SI 1998 No 3218, the Secretary of State was bound by a Parole Board recommendation where a prisoner was serving less than fifteen years imprisonment. The 1991 Act contained no guidance on the criteria to be applied when deciding whether to release a prisoner under section 35(1), although guidance was contained in directions issued to the Parole Board by the Secretary of State under section 32(6) of the 1991 Act.
To return to Home Detention Curfew, prisoners could not be released unless the license included curfew conditions which required them to remain between specified times at a specified place – which might be an approved probation hostel –for securing the electronic monitoring of their whereabouts during those times: s.37A(1) of the 1991 Act. The electronic monitoring, or tagging, was undertaken by a private contractor. Curfew periods could not be less than nine hours a day: s.37A(2). In fact the normal period was twelve hours. The curfew conditions remained in force until the point where persons would have served one half of the sentence: s.37A(3). Section 38A contained the power of the Secretary of State to revoke the licenserecall persons to prison if it appeared that there was a breach of curfew conditions, their whereabouts could no longer be electronically monitored or it was necessary for public protection. Under section 38A(2) persons whose license has been revoked in this manner
i) might make representations in writing with respect to the revocation;
ii) were to be informed on return to prison of the reasons for the revocationof their right to make representations.
After considering any representations or other matters the Secretary of State might cancel the revocation.
Apart from the statutory exclusions referred to, there was nothing in the Criminal Justice Act 1991 indicating how this discretion to release on Home Detention Curfew was to be exercised. However, the Secretary of State issued a detailed policy as to the operation of Home Detention Curfew in the form of Prison Service Order governing Home Detention Curfew, PSO 6700. By way of introduction that policy said that for most eligible prisoners Home Detention Curfew would be a normal part of their progression through their sentence. The precise numbers released on Home Detention Curfew was not in evidence but it appeared to be well over 10,000 per annum at the relevant time. In the policy its purpose was said to be “to manage more effectively the transition of offenders from custody back into the community” (para 1.4). Eligible prisoners were risk assessed for Home Detention Curfewthe evidence suggested that considerable numbers were refused on the basis of risk.
The policy of who qualified for release on Home Detention Curfew has varied with time. Risk has not been the only consideration. The Secretary of State has taken into account the need to maintain confidence in the criminal justice system. For example in July 2003 various changes were made to the scheme, so that prisoners serving sentences for certain violentsexual offences were presumed unsuitable save in exceptional circumstances, even if their risk of re-offending was low: Prison Service Instruction 31/2003, amending PSO 6700. The change was announced by written ministerial statement on 10 April 2003:
“[I]t is extremely important to maintain public confidence in the HDC scheme. So, at the same time as increasing the maximum curfew period, I will set a presumption that prisoners convicted of certain serious offences will not be suitable for release unless exceptional circumstances exist.”
At the relevant time the policy on Home Detention Curfew provided that unless prisoners had requested not to be considered, they had normally to be released on Home Detention Curfew unless there were substantive reasons for retaining them in custody until their conditional or automatic release date (PSO 6700, para 5.13.3). The policy continued that the reasons for not releasing on Home Detention Curfew had to fall under one of five headings:
• an unacceptable risk to the victim or to members of the public;
• a pattern of offending which indicated a likelihood of re-offending during the Home Detention Curfew period;
• a likelihood of failure to comply with the conditions of the curfew;
• a lack of suitable accommodation for Home Detention Curfew or the shortness of the potential curfew.
Under the policy reasons had to be notified to a prisoner when Home Detention Curfew was refused (PSO 6700, para 7.2). The reasons had to be based on those identified above. (The paragraph reference in the order seems to be inaccurate in this regard). When a request was made before consideration of the case the prisoner had to be given the opportunity to make oral or written representations (para 7.3)....
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