R (Black) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 2009 |
| Date | 21 January 2009 |
| Court | House of Lords |
House of Lords
Lord Phillips, Lord Rodger, Baroness Hale, Lord Carswell, Lord Brown
T Owen QC and H Southey (instructed by Bhatt Murphy) for B; D Pannick QC and P Patel (instructed by the Treasury Solicitor) for the Secretary of State
Whether Art 5(4) ECHR applied to the release on parole of a very long-term determinate sentence prisoner.
B was serving 24 years' imprisonment for various serious offences. In May 2006, the Parole Board recommended his release on licence, but this was rejected by the Home Secretary in August 2006: the Home Secretary considered the same material but reached a different conclusion as to the risk posed, finding that it was too great to allow release. Under the relevant statutory regime (ss35 and 50 Criminal Justice Act 1991 and the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218)), the Home Secretary retained the final decision in relation to those serving 15 years or more, though he could only release if the Parole Board recommended it; in relation to other prisoners serving more than 4 years, release on parole licence had been delegated to the Board. In judicial review proceedings, B argued that the Home Secretary was obliged to give effect to the Parole Board's decision because (i) Art 5(4) ECHR
applied and so release had to be determined by a judicial body, (ii) it was an unjustified anomaly that the Home Secretary retained the final decision as to the release of those serving 15 years or more and, in light of this, it was irrational not to accept a recommendation of the Board, and (iii) it was unlawful not to accept a Board recommendation unless there was fresh evidence. The Deputy Judge rejected all grounds ([2008] Prison Law Reports 138), but granted leave to appeal in relation to the Art 5(4) point. The Court of Appeal ([2009] Prison Law Reports 63) granted a declaration that the regime was incompatible with Art 5(4), as it left the final decision on release to the executive.
Lord Phillips of Worth Matravers:
1. My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Brown, and gratefully adopt his summary of the facts and of the relevant legislation. I do not, however, share the conclusion to which he has come. Both established principles of law laid down by the European court at Strasbourg and recent jurisprudence of your Lordships' House have led me to conclude that the regime for considering the release on licence of prisoners in the position of the respondent is not compatible with the European Convention on Human Rights ("the Convention").
Strasbourg jurisprudence
2. This appeal concerns the interrelationship of Art 5(1)(a) and Art 5(4) of the Convention. They provide:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court
4. 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."
3. In De Wilde, Ooms and Versyp v Belgium (No 1)HRC(1971) 1 EHRR 373, para 76 the European court held that Art 5(4) did not entitle a person detained to take proceedings to challenge detention when that detention was pursuant to an order of a court:
"At first sight, the wording of Art 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. The two official texts do not however use the same terms, since the English text speaks of 'proceedings' and not of 'appeal', 'recourse' or 'remedy' (compare Art 13 and 26). Besides, it is clear that the purpose of Art 5(4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected: the word 'court' ('tribunal') is there found in the singular and not in the plural. Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Art 5(4) obliges the contracting states to make available to the person detained a right of recourse to a court; but 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 Art 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after 'conviction by a competent court' (Art 5(1)(a) of the Convention)."
4. Subsequent decisions have made it plain that this principle only applies in relation to the sentence imposed by a competent court where that sentence is conclusive of the lawfulness of the detention of the applicant. In such circumstances no issue as to the lawfulness of the detention can arise and so there is nothing to which Art 5(4) can apply. A sentence of imprisonment will not be conclusive of the
lawfulness of imprisonment if the law under which it is imposed makes provision for the release, either unconditionally or subject to the satisfaction of certain criteria, of the person detained before the sentence has been served in full. In such circumstances, when the point is reached where the person detained is entitled to release or where the relevant criteria fall to be considered, there will be a justiciable issue as to whether the continued detention of that person is lawful. Article 5(4) entitles the person detained to the determination of that issue by a court. If that determination concludes that the criteria for release do not apply, the lawfulness of the detention will remain attributable, under Art 5(1)(a), to the original sentence.
5. The Strasbourg decisions that support this proposition start with Van Droogenbroeck v BelgiumHRC(1982) 4 EHRR 443. In that case, at para 45, the European court said of the passage from De Wilde that I have cited that it
"speaks only of 'the decision depriving a person of his liberty'; it does not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise."
6. The court was in that case dealing with a law that provided for the detention of recidivists at the discretion of the government and held that Art 5 applied to such detention. It observed, at para 47, that the system under consideration was fundamentally different from that - on which it did not have to express an opinion - "of the conditional release of prisoners sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case".
7. In Weeks v UKHRC(1987) 10 EHRR 293 the applicant had been given a discretionary life sentence for armed robbery, described by the sentencing judge as an "indeterminate sentence" that would permit the Secretary of State to release him when it was determined that he was no longer a danger. He was released on licence but subsequently recalled, at which point he claimed that his detention violated Art 5(1) and Art 5(4). The European court held that there was no violation of Art 5(1) but that there had been a violation of Art 5(4). The reasoning of the court was as follows. The object of the sentencing judge in imposing a life sentence had not been that the applicant should remain in prison by way of punishment for the whole of his life. Rather it was that he should be detained until he ceased to be a danger. The facts that resulted in his recall had demonstrated that he remained dangerous, so that his original sentence was justification for his renewed detention under Art 5(1)(a). In the words of the court there was "a sufficient connection" for the purposes of that sub-paragraph between his conviction and his recall. There had, however, been an issue as to whether his recall had been justified and this he had been entitled to have determined by a court under Art 5(4). The court held that Art 5(4) had not in that case been satisfied because of deficiencies in the process and the power of the Parole Board that had considered the justification for the applicant's recall.
8. The same distinction between a life sentence imposed by way of punishment and one imposed as an indeterminate sentence because of uncertainty as to when it would be safe to release the prisoner was drawn by the European court in Thynne, Wilson and Gunnell v UKHRC(1990) 13 EHRR 666. The court emphasised that detention pursuant to the latter type of sentence would only be lawful if it satisfied the purpose of the sentence. In this context the court drew at this time a distinction between a discretionary life sentence and a mandatory life sentence. In the former case, once the prisoner had served the punitive element of his sentence the lawfulness of his continued detention depended upon whether he remained a danger, something that was capable of changing over time. It followed that Art 5(4) entitled the prisoner to a periodic review by a court of the continued necessity, and thus lawfulness, of his detention. Once again the court held that the Parole Board did not satisfy the requirements of Art 5(4).
9. The next step in the development of the European court's jurisprudence in this area was the extension of the reasoning that I have just described to the mandatory detention during Her Majesty's pleasure of a young person convicted of murder: Hussain v UKHRC(1996) 22 EHRR 1. Initially the European court did not extend this reasoning to mandatory life sentences imposed on adults convicted of murder: see Wynne v UKHRC(1994) 19 EHRR 333. In Stafford v UKPLR[2002] Prison Law Reports 181, (2002) 35 EHRR...
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