R (Black) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Lord Justice Moore-Bick,Lord Justice May |
| Judgment Date | 15 April 2008 |
| Neutral Citation | [2008] EWCA Civ 359 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 2008 |
| Docket Number | Case No: C1/2007/1694 |
[2008] EWCA Civ 359
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand. London. WC2A 2LL
Lord Justice May
Lord Justice Latham and
Lord Justice Moore-bick
Case No: C1/2007/1694
Tim Owen, QC and Hugh Southey (instructed by Bhatt Murphy Solicitors) for the Appellant
Parishil Patel (instructed by the Secretary of State) for the Respondent
Hearing date: 28th February 2008
This is another appeal in the developing jurisprudence on the application of Article 5 of the European Convention on Human Rights to decisions relating to the release of serving prisoners. The present appeal arises in relation to the position of a relatively small and diminishing category of long term prisoners sentenced under the provisions of the Criminal Justice Act 1991, (the 1991 Act), which provides pursuant to section 35(l)as follows:
“After a long-term prisoner has served one-half of his sentence, The Secretary of State may, if recommended to do so by the Board, release him on licence.”
These provisions do not apply to prisoners sentenced under the Criminal Justice Act 2003, nor do they apply to long term prisoners sentenced under the 1991 Act to terms of less than 15 years. In the case of these the Secretary of State has, in effect, transferred to the Parole Board his functions relating to release, pursuant to the provisions of s.50 of the 1991 Act.
The appellant was sentenced on the 27 July 1995 to a total of 20 years imprisonment for offences of false imprisonment, kidnapping, conspiracy to kidnap and robbery. On the 8 January 1996, he was sentenced to 4 years imprisonment for escaping from custody and assault with intent to cause grievous bodily harm and was sentenced to 4 years imprisonment to be served consecutively to the 20 year sentence. He has a long history of offending including offences committed in Denmark, Switzerland and Portugal. On the 2 May 2006, the Parole Board recommended his release on licence. On the 29 August 2006, the respondent declined to exercise his power to release the appellant under s.35. He did not accept the Parole Board's recommendations. He concluded that the risk of re-offending had not been sufficiently reduced, particularly bearing in mind the seriousness of the offences of which he had been convicted, and his previous convictions.
The appellant in his application for judicial review, asked the court to quash the respondent's decision or to declare that it is unlawful for the respondent to reject the advice of the Parole Board and a declaration that he is entitled to immediate release in accordance with the recommendation made by the Parole Board. He made this application essentially on three grounds. The first was that the respondent's decision breached his rights under Article 5(4) of ECHR; the second was that the respondent was bound to accept the recommendation of the Parole Board; and the third, in the alternative, was that the respondent was only entitled to depart from a recommendation by the Parole Board if there was fresh material which entitled him to do so. Kenneth Parker QC, sitting as a Deputy High Court Judge, dismissed the application, rejecting each of the three grounds. He gave leave to appeal, however, in relation to the first ground which is, accordingly, the only remaining issue.
Article 5(4) ECHR provides as follows:
“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.”
Convention jurisprudence has, for the purposes of this Article, made a clear distinction between decisions depriving a person of his liberty made by an administrative body on the one hand and the court on the other. This is most clearly stated in the judgment of the European Court of Human Rights in De Wilde, Oms Versyp v Belgium (No 1) (1971) 1 EHRR 373, para 76:
“At first sight, the wording of Article 5(4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty… 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 the right to recourse to a court; 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, for example, where a sentence of imprisonment is pronounced after “conviction by a competent court” (Article 5(1) (a) of the Convention).”
We have to apply this principle to a situation in which the responsibility for determining the length of a sentence is shared between the judge and the respondent. The courts here have determined that the maximum period that the appellant can serve is 24 years. The statutory early release provisions mean that he must serve at least 12 years of those 24. That much has effectively been determined by the courts. The precise period that he will serve, is, however, determined by the provisions of s. 35 of the 1991 Act that is by a decision of the respondent that is the executive, to release him if recommended to do so by the Parole Board. The simple argument on behalf of the appellant is that in relation to that decision, he is entirely dependent upon a decision by the executive, which is no different in kind from the determination made by the respondent's predecessors in both discretionary and mandatory life sentence cases which have been held by the court to be incompatible with a prisoners Article 5 (4) rights: see Regina (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837. Contra, the respondent submits that a proper understanding of the House of Lords decisions in Regina (Giles) v Parole Board [2004] 1 AC 1 and Regina (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, makes it clear that the lawfulness of the continued detention of a fixed term prisoner is always determined by the sentence imposed by the court, and is therefore justified by Article 5 (l)(a).
To evaluate this argument it is obviously necessary to look at those latter two authorities and authorities which have followed them. Dealing first with Giles, it is important to be clear about the argument that was being presented in that case. It involved a prisoner who had been sentenced to a total of 7 years imprisonment and was entitled in accordance with the provisions of s.35 of the 1991 Act, as applied to long term prisoners serving less than a total of 15 years, to be released on the recommendation of the Parole Board. Under the early release provisions, he could only be considered for release after he had served one half of that sentence, namely 3 1/2 years. But the sentence was a longer than commensurate sentence imposed pursuant to the provision of s 2 (2) (b) of the 1991 Act...
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