R Ashley Foster v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker,Lady Justice Rafferty |
| Judgment Date | 17 July 2013 |
| Neutral Citation | [2013] EWHC 1951 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2013 |
| Docket Number | Case No: CO/12094/2012 |
[2013] EWHC 1951 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Mr Justice Kenneth Parker
Case No: CO/12094/2012
Hugh Southey QC (instructed by Hickman & Rose) for the Claimant
Nathalie Lieven QC (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 3 July 2013
Introduction
The Claimant, Ashley Foster, challenges the decision of the Secretary of State for Justice to refuse to allow him an oral hearing as part of his appeal against recall to prison after he had been released on Home Detention Curfew ("HDC").
The Legislative and Procedural Background
It is convenient first to set out the legislative and procedural background. I adopt gratefully what follows largely from the judgment of Elias LJ (with whom Pill LJ and Patten LJ agreed) in R(Whiston) v Secretary of State for Justice [2012] EWCA Civ 1374 (" Whiston").
Prisoners who are subject to a determinate prison sentence may be released under two different kinds of licence. For sentences of twelve months or more, they have the right to be released on licence after having served half that sentence: see section 244 of the Criminal Justice Act 2003 ("the 2003 Act"). This portion of his sentence, which by s 244(3) is termed the "custodial term", has to be served by the prisoner before he is entitled to be released on licence.
However, sometimes prisoners may also be released on licence even during the custodial term. This power is conferred by section 246 of the Act which, so far as is relevant, is in the following terms:
i) Subject to sub-sections (2) to (4), the Secretary of State may –
a) release on licence under this section a fixed-term prisoner, other than an intermittent custody 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 ….
ii) Sub-section (1)(a) does not apply in relation to a prisoner unless –
a) the length of the requisite custodial period is at least six weeks, and
b) he has served –
i) at least four weeks of that period, and
ii) at least one-half of that period.
Section 250(5) provides that the licence pursuant to section 246 must be subject to a curfew condition in accordance with section 253 which, ignoring exceptions and points of detail, is as follows:
i) … 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.
ii) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
iii) 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.
As sub-section (3) makes plain, the curfew condition cannot be made to operate beyond the period of the custodial term when the prisoner would in any event be entitled to be released. Release on licence of post-custodial term prisoners may exceptionally have a curfew condition for those identified as MAPPA level 3 cases: section 250(4)(b) of the Act; art 3(2)(b) of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005/648, PC 29/2007 Annex A and PSO 6000 Chapter 14. Typically the place specified in the licence is a person's home; hence the reason why the scheme is known as the "home detention curfew scheme".
Under section 249 a licence, whether pursuant to section 244 or 246, remains in place until the end of the determinate period of the sentence unless before then the licence is revoked and the prisoner recalled. However, any home detention curfew provisions only remain in place until the end of the custodial period. (Prisoners sentenced to fewer than twelve months will be released unconditionally at the half-way point and will not thereafter be subject to any licence.)
The Secretary of State may revoke a licence and recall the prisoner pursuant to two different statutory provisions. First, section 254 gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. If that power is exercised, and the prisoner is not automatically released under section 255(B) of the Act, it must be considered by the Parole Board who will determine whether the recall should be confirmed.
Second, section 255 confers a specific power on the Secretary of State to revoke a section 246 licence. However, that power can only be exercised whilst the curfew condition is in force, which means until the point when the prisoner would have been entitled to be let out on licence as of right. Thereafter, the licence has to be revoked under section 254. There is no review of the section 255 power by the Parole Board, although there are certain procedural safeguards afforded to the recalled party. The section, so far as is material, is as follows:-
" Recall of prisoners released early under section 246
(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.
254 Recall of prisoners while on licence
(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1)—
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.
[…]"
In Whiston the issue was whether the recall to prison under section 255, without a right of review by the Parole Board or any other judicial body, was consistent with Article 5(4) of the European Convention on Human Rights ("the Convention"). However, for determining that issue the critical question was whether the recall from HDC constituted a fresh deprivation of liberty or whether that renewed detention remained justified by the original sentence of imprisonment. The answer to that question depended upon the nature, quality and purpose of the liberty afforded to a prisoner who was made subject to such a licence. Elias LJ then made this analysis of the nature, quality and purpose of HDC:
"31. I am not persuaded that the release on home detention curfew is properly to be viewed as the restoration of liberty sufficient to engage art 5 if and when the prisoner is recalled to prison. It is true that West shows that the mere fact that the liberty is conditional on compliance with the conditions of the licence, and is to that extent precarious, does not prevent it amounting to sufficient liberty to engage art 5(4) when the prisoner is denied it. But it seems to me that release on home detention curfew is much more closely integrated with the original sentence than is release as of right once the custodial period has been completed. The curfew is a compulsory feature of the scheme and if it cannot be enforced, the licence must be withdrawn and the prisoner recalled, irrespective of the fact that the prisoner has honoured the conditions of his licence. Indeed, that is this case. The purpose of granting such freedom to the prisoner is to help him integrate into society. In my view, it is properly to be seen as a modified way of performing the original sentence imposed by the judge; the recall simply restores the primary way in which it was assumed that the sentence would be served. This was essentially the basis on which Collins J found that art 5(4) was inapplicable in the Benson case (para 19)….
32. I do not suggest that someone subject to equivalent restrictions on his liberty in other circumstances, for example as part of bail conditions, would be unable to claim that he had lost his liberty if he were to be imprisoned. Article 5(4) would no doubt be applicable to imprisonment for alleged breach of the licensing conditions in those circumstances. But in a context where the licensing arrangements are made as an alternative to compulsory detention, the question is whether the link with the original sentence imposed by the judge is broken. In my view, it is not and therefore the conditions of art 5(4) are satisfied by the original trial.
33. I recognise that it can be said that just as in the West case, new facts have to be established before the prisoner can be recalled. But in my view that is not of itself sufficient to engage art 5(4) because the highly restricted liberty inherent in the home detention curfew scheme is so intimately connected with the original custodial sentence. Nor do I believe that Lord Brown had this scheme in mind when he made the observations he did in the Black case (see para 27 above). I believe he was considering the licensing...
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Ashley Foster v The Secretary of State for Justice
...have been recalled. 2 The Divisional Court (Rafferty LJ and Kenneth Parker J) dismissed the application for judicial review: see [2013] EWHC 1951 (Admin). Leave to appeal was initially refused on paper by Treacy LJ but subsequently granted by Elias LJ in the light of the possible arguments......