R (Hirst) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 2006 |
| Neutral Citation | [2005] EWHC 1480 (Admin) |
| Date | 06 July 2006 |
| Court | Queen's Bench Division (Administrative Court) |
[2005] EWHC 1480 (Admin)
Court and Reference:Administrative Court; CO/4829/2004
Crane J
Appearances:F Krause (instructed by AS Law) for H; K Grange (instructed by the Treasury Solicitor) for the Home Secretary; K Stern (instructed by the Treasury Solicitor) for the Board.
Whether there were breaches of Art 5(1), (2), (3) and (4) in the recall of a life sentence prisoner; the appropriate remedy.
H was sentenced to life imprisonment for manslaughter in 1980, released on licence on 12 May 2004 but on 2 August 2004 his licence was revoked following concerns about his behaviour, breaches of hostel rules and missing appointments with his supervisor; the matter had been referred to the Parole Board for advice, and it recommended recall. Documents, including the reasons for recall, were supplied 8 days after his detention, and the full dossier of reports relevant to the issue was supplied to him on 26 August. A request was made for an oral hearing in front of the Board, and on 3 September the case was referred to the Board. Following a Parole Board hearing on 9 November 2004, leading to a decision of 12 November, which was supplied to the Prison Service on 16 November, H was again released on licence on 23 November. He challenged several aspects of his recall, including the lack of reasons for detention, the delay in holding a judicial hearing after recall, and the delay in release. It was submitted that Art 5(1)(c) European Convention applied - namely arrest to prevent the commission of an offence - and so Art 5(3) required a prompt judicial hearing.
1. In 1980 the claimant was sentenced to life imprisonment for manslaughter. On 12 May 2004 he was released on life licence. On 2 August 2004 his licence was revoked. Following a Parole Board hearing he was, on 23 November, again released on licence. He seeks to challenge, by way of judicial review, several aspects of his recall. His application for permission to apply for judicial review was initially rejected on the papers. On 2 February 2005 Walker J granted permission, on what was described as ground 3, in somewhat discursive grounds.
2. At the outset of the hearing I invited Ms Krause, counsel for the claimant, to define the issues on which the court was being asked to adjudicate. There were 4, all of which counsel for the first and second defendants accept are within the ambit of the permission granted.
3. The claimant's primary case is that the scheme for recall, in s. 32(1) of the Crime (Sentences) Act 1997, is incompatible with Art 5 of the European Convention on Human Rights.The claimant's case was that any process by which a person on licence is detained must be a judicial process. It was argued that a person might, in very limited circumstances, be detained before a judicial determination, but, at the very least, a very speedy judicial determination thereafter is required. Delays, so it is said, are built into the scheme as enacted. In fact that primary case was later somewhat modified. The proposition that only by way of a judicial process can a person on licence be taken into custody, is no longer pursued. The primary case now is that after the person is taken into custody there must be a prompt judicial determination.
4. The other contentions are, in a logical order: (ii) that there was a failure to give reasons on the claimant being taken into custody; (iii) that there was a delay between the detention and the determination of the Parole Board that the claimant should again be released; and (iv) that there was a further delay between that determination and the actual release.
5. Section 32 of the 1997 Act reads as follows:
"(1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this Chapter, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
(3) A life prisoner recalled to prison under subs(1) or (2) above-
(a) may make representations in writing with respect to his recall; and
(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.
(4) The Secretary of State shall refer to the Parole Board -
(a) the case of a life prisoner recalled under subs(1) above who makes representations under subs(3) above; and
(b) the case of a life prisoner recalled under subs(2) above.
(5) Where on a reference under subs(4) above the Parole Board -
(a) directs in the case of a life prisoner to whom s. 28 above applies; or
(b) recommends in the case of any other life prisoner,
his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation.
(6) On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
6. Article 5 of the European Convention reads as follows:
"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;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of para (1)(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
7. I turn to the salient dates in the present case. The release on licence was on 12 May 2004. There were undoubtedly certain difficulties. Their nature was disputed. The most convenient way of dealing with those difficulties is to quote para 10 of the determination, dated 12 November 2004, of the Parole Board:
"From the outset there were difficulties in your relationship with the hostel staff and a list of their concerns appears at pp101-104 of the dossier. Your conduct includes failure to abide by the hostel rules, being abusive to staff and residents and telling a lie to justify your breach of curfew. You also fell into arrears with your maintenance charge payments. There were concerns over your level of alcohol consumption and its effect on your conduct. You were also seen to spend time near the children's playground and, despite a police warning, repeated the conduct. You showed a reluctance to cooperate with supervision and missed appointments on 1 and 10 July."
8. The claimant's case was referred to the Parole Board by the Secretary of State in accordance with s. 32. On 30 July the Parole Board recommended his recall to prison. On 2 August the Secretary of State, acting on that recommendation, recalled the claimant to prison. On 3 August the claimant was arrested and taken to HMP Hull.
9. On 31 August the Secretary of State received the formal notification from the claimant that he wished to make representations against recall at an oral hearing. The Secretary of State referred the case to the Parole Board which, on 9 November, held an oral hearing. That oral hearing resulted in a ruling dated 12 November, para 10 of which I have already quoted. Paragraph 11, in part, reads as follows:
"The panel found that the combination of events during your time at the hostel gave risk (sic) to serious concerns about your increased risk and fully justified your recall."
10. However, the panel went on to consider the evidence they had heard and the special features of the claimant's case, and took the view that the claimant did not pose a threat to life and limb and that the threat imposed could be managed in the community. They directed his release on licence which later took place.
11. Hitherto the recall to prison of a person on life licence has been considered by the European Court of Human Rights and the English courts as governed by Art 5(1)(a). In other words, it is the original...
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