R (O'Connell) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Mr Justice Simon |
| Judgment Date | 13 November 2007 |
| Neutral Citation | [2007] EWHC 2591 (Admin) |
| Docket Number | Case No: CO/8167/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2007 |
[2007] EWHC 2591 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Latham and
Mr Justice Simon
Case No: CO/8167/2006
Phillippa Kaufmann (instructed by Bhatt Murphy, Solicitors ) for the Claimant
Michael Fordham QC & Ben Jaffey ( for the Defendant Parole Board ) instructed by the Treasury Solicitor
Steven Kovats & Mark Vinall (for the Defendant Secretary of State ) instructed by the Treasury Solicitor
Hearing dates: 15 th October 2007
Judgement
This claim raises fundamental issues as to the function and status of the Parole Board. It does so in the context of a challenge to the decision of the Board on the 18 th July 2006 refusing to direct the claimant's release on licence under section 247 of the Criminal Justice Act 2003 (the 2003 Act). The challenge was based on four grounds. First, the decision was one which entitled him to the protection of Article 5(4) of the European Convention on Human Rights. Second, the Board does not have the necessary independence which is required for any body carrying out functions under Article 5(4). Third, the Board failed, in breach of both its common law obligation of fairness, and its obligations pursuant to Article 5(4), to give the claimant an oral hearing. Fourth, the Secretary of State's directions to the Parole Board as to the test to apply when coming to its decision are unlawful.
This claim was originally heard by this court differently constituted together with the claims of three others claimants. The cases of the other three claimants all raised the issue of whether or not the Board had established objective independence of the executive so as to be Article 5(4) compliant. There was no dispute in those cases as to the applicability of Article 5(4). The court decided to deal with the discrete issue of independence, and, because of the lack of time, adjourned the balance of this claimant's argument. It concluded as far as the other three claimants were concerned that the Parole Board did not have the independence required by Article 5(4). It also concluded that common law also required such independence; and the Board did not meet the requirements of the common law. It accordingly made declarations to both effects in the cases of the three other claimants. It made a declaration in this claimant's case that the Board did not meet the requirements of the common law. We therefore have to determine whether or not the claimant has made out his first, third and fourth grounds.
The First Issue
For the determination of the first issue, the only relevant facts are that on the 20 th May 2005, the claimant pleaded guilty to an offence of assault occasioning actual bodily harm against his wife on the 14 th May 2005. On the 26 th July 2005 at the Crown Court, he was sentenced to an extended sentence under section 227 of the Criminal Justice Act 2003 composed of a custodial period of two years and a licensed period of three years. There were terms attached to his licence period which are irrelevant for the purposes of this issue.
His release from custody is governed by the provisions of section 247(2) of the 2003 Act which provides:
"As soon as:
(a) a prisoner to whom this section applies has served one-half of the appropriate custodial team, and
(b) the Parole Board has directed his release under this section,
it is the duty of the Secretary of State to release him on licence."
The question raised by the first issue is whether detention during the second half of the custodial period of an extended sentence under the 2003 Act is justified by the original sentence, so that there is no separate authority for the detention engaging Article 5(4) or whether in the second half of the custodial period, detention is justified on a fresh legal basis, that is the decision of the Parole Board not to direct release.
It may be helpful to set out first the relevant provisions of Article 5 of the ECHR.
"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. Anyone 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.
….."
Where a person is detained, therefore, simply by reason of the original sentence of the court after conviction, Article 5(1)(a) justifies the detention throughout that period. In such cases it is said that the guarantees of Article 5(4) are incorporated once and for all in the sentencing exercise: De Wilde, Ooms and Versyp –v- Belgium No 1 (1971) 1EHRR 373. This will be the case where there are no early release provisions or where early release provisions are automatic, in other words do not require an executive or any other determination. Article 5(4), however provides a crucial guarantee against the arbitrariness of detention "where new issues of lawfulness are capable of arising, periodically, thereafter." Benjamin and Wilson-v- United Kingdom (2003) 36 EHRR 1 at para 3. This critical concept of arbitrariness is echoed in particular by Lord Bingham in R –v- (Giles) Parole Board [2004] 1AC 1 at paragraph 10. This concept has been applied consistently in Convention jurisprudence to indeterminate sentences imposed in our courts so as to require Article 5(4) compliant supervision of detention after the period identified as necessary for punishment and deterrence: see Stafford –v- United Kingdom (2002) 35 EHRR 1121, at para 87. That is because the continued detention is based upon an assessment of the danger, if any, that the prisoner would present on release into the community, a matter which could change over time, therefore requiring periodic assessment for which judicial oversight is necessary if it is not to result in the possibility of arbitrary decisions of the executive. This will apply to all indeterminate sentences, whether mandatory or discretionary life sentences, detention during Her Majesty's Pleasure, or imprisonment for public protection.
The question with which we are concerned arises out of the special nature of an extended sentence imposed under section 227 (or section 228) of the 2003 Act. By section 227(2) an extended sentence under this section comprises "the appropriate custodial term" and "the extension period" during which the offender is to be subject to a licence "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences." A sentence is mandatory in the case of any defendant who has been convicted of a "specified" offence (offences identified in Schedule 15 to the Act). The sentence differs from an ordinary determinate sentence in two important respects, both clearly aimed at preventing danger to the public. The "custodial term" is clearly that which is supposed to be equivalent to a commensurate determinate sentence. In normal circumstances the length of licence would simply be the unexpired portion of that sentence after early release. The first difference is therefore the extended licence which is intended to provide added protection for the public. The second is the effect of the special early release provisions in section 247 of the 2003 Act to which I have already referred, which make it plain that, unlike a defendant serving a determinate sentence, a person serving an extended sentence has to satisfy the Parole Board that it is no longer necessary for the protection of the public for him to remain in custody for the second half of the custodial period before he is entitled to release.
The claimant submits that this equates a prisoner serving an extended sentence to a prisoner serving an indeterminate sentence for the second half of the custodial period. Essentially the same question is raised, namely whether he remains a risk to the public, which might change over time. There is therefore, it is submitted, no distinction in principle, so that the protection of Article 5(4) is required.
There is no direct authority on the point. In R –v- Giles- [supra] the court was concerned with a longer than commensurate sentence under Section 2(2)(b) of the Criminal Justice Act 1991. The appellant had been sentenced to a total sentence of seven years imprisonment pursuant to those provisions. The judge, in accordance with general practice, had not identified what would have been a commensurate sentence, and therefore the extent to which he had increased the sentence for the protection of the public. As a long term prisoner, he was entitled to be considered for parole after he had served one half of the sentence, and entitled to be released after he had served two thirds of his sentence. He claimed to be entitled, pursuant to Article 5(4) to a periodical review of the necessity for his continued detention once he had served one half of the notional punitive part of his sentence. The House of Lords rejected that claim on the basis that the court had, in determining the length of the longer than commensurate sentence itself determined the period necessary for the protection of the public, so that there was no question of arbitrariness such as to engage Article...
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