Mason v Ministry of Justice
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2008 |
| Date | 28 July 2008 |
| Court | House of Lords |
High Court, QBD; HQ07X0439
Cranston J
H Southey (instructed by Fisher Meredith LLP) for M; S Grodzinski (instructed by the Treasury Solicitor) for the Defendant.
Whether delay in release on Home Detention Curfew gave rise to a right to seek damages for breach of Art 5(4) ECHR.
Under the Home Detention Curfew scheme as applicable at the relevant time, those serving less than 4 years' imprisonment (subject to certain exclusions) could be released on licence, subject to an electronically-monitored curfew, before their statutory early release date for a time dependent on the length of the sentence. The statutory power was phrased as an unfettered discretion, but policy documents were issued as to the process to be followed (including appeals) and the criteria to be satisfied for release (based largely on risk). M was serving 30 months' imprisonment; he was released on HDC, but delays in the consideration of his application were such that he was in custody during some of the time when he was eligible for release. He sought damages for a breach of Art 5(4) ECHR, arguing that as HDC involved an executive decision as to release it was covered by Art 5(4) because of the risk of arbitrariness, which could arise from delay; he also suggested that previous case law to the effect that Art 5(4) was not engaged should not be followed as it was clearly wrong.
Introductory
1. 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 Art 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 power and to make accountable those by whom persons are detained. As a preliminary issue in this action my task is to decide how Art 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 12 hours a day, monitored by an electronic tag. If the claimant is correct Art 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.
2. The claimant in this case was a prisoner serving a determinate sentence of imprisonment of 30 months imposed in September 2003. In these proceedings he seeks damages for breach of Art 5(4) as a result of what he claims was unreasonable and unlawful 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, and 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.
Statutory and policy framework for Home Detention Curfew
3. 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 4 years, when the sentence was 3 months or more: Criminal Justice Act 1991 ("the Act"), ss33(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 recalled and those where the period they would benefit from was less than 14 days: s34A(2). Otherwise the Secretary of State had a discretion to release a person on Home Detention Curfew licence: s34A (3). To be eligible a prisoner must have served the requisite period of his sentence, which was defined in s34A(4) to mean:
(i) for a term of 3 months or more but less than 4 months, a period of 30 days;
(ii) for a term of 4 months or more but less than 18 months, a period equal to one-quarter of the term;
(iii) for a term of 18 months or more, a period that is 135 days less than one half of the term.
4. 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 4 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 12 months, and to release them on licence if their sentence was more than 12 months: s33(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 licence. For those serving less than 12 months and released on Home Detention Curfew their licence period terminated at the half-way point: s37(2). For those serving 12 months or more the licence remained in force until the date which was calculated by reference to the difference between the three-quarter point of their sentence and the duration of the curfew condition: s37(1B).
5. Long-term prisoners - those serving a term of 4 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 licence."
However, s35(1) gave the Secretary of State a discretion to release on licence 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 15 years' imprisonment. The 1991 Act contained no guidance on the criteria to be applied when deciding whether to release a prisoner under s35(1), although guidance was contained in directions issued to the Parole Board by the Secretary of State under s32(6) of the 1991 Act.
6. To return to Home Detention Curfew, prisoners could not be released unless the licence included curfew conditions which required them to remain between specified times at a specified place - which might be an approved probation hostel - and for securing the electronic monitoring of their whereabouts during those times: s37A(1) of the 1991 Act. The electronic monitoring, or tagging, was undertaken by a private contractor. Curfew periods could not be less than 9 hours a day: s37A(2). In fact the normal period was 12 hours. The curfew conditions remained in force until the point where persons would have served one-half of the sentence: s37A(3). Section 38A contained the power of the Secretary of State to revoke the licence and recall 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 s38A(2) persons whose licence 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 revocation and of their right to make representations.
After considering any representations or other matters the Secretary of State might cancel the revocation.
7. 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 Curfew and the evidence suggested that considerable numbers were refused on the basis of risk.
8. 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 violent and sexual 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."
9. 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...
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