R (Johnson) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Buxton,Lord Justice Lloyd |
| Judgment Date | 09 May 2007 |
| Neutral Citation | [2007] EWCA Civ 427 |
| Date | 09 May 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2006/2022 |
[2007] EWCA Civ 427
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD Administrative Court
Mr A Nicol QC (sitting as a Deputy High Court Judge)
CO1652004
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of the Court of Appeal, Civil Division
Lord Justice Buxton and
Lord Justice Lloyd
Case No: C1/2006/2022
Kris Gledhill (instructed by Messrs Guile Nicholas, Solicitors) for the Appellant
Steven Kovats and Nicola Greaney (instructed by Treasury Solicitors) for the Respondents
Hearing date: 24 th April 2007
This is an appeal from the decision of Andrew Nicol QC, sitting as a deputy high court judge, where he dismissed the claim that the delay in putting Mr Johnson's case before the Parole Board was a breach of Article 5(4) of the Convention. I can take much of the facts and background from the excellent judgment of the deputy high court judge.
Derrick Johnson was sentenced on 19 th May 2000 by the Crown Court at Bristol. The sentence was 7 years' imprisonment. Under the sentencing regime then in force this meant that he was a 'long-term prisoner'—see Criminal Justice Act 1991 s.33(5). A long-term prisoner is entitled to be released on licence after he has served two thirds of his sentence—Criminal Justice Act 1991 s.33(2). In Mr Johnson's case that would have been on 2 nd August 2004. However, after he had served one half of his sentence as a long-term prisoner he was entitled to be released on licence, if the Parole Board so recommended—Criminal Justice Act 1991 s.35(1). As originally enacted the statute gave the Secretary of State a discretion to release such a prisoner on the recommendation of the Parole Board. However a combination of s.50 of the 1991 Act and The Parole Board (Transfer of Functions) Order 1998 SI 1998 No. 3218 mean that in the case of a prisoner (such as Mr Johnson) who was sentenced to a term of less than 15 years, the Secretary of State is obliged to follow a recommendation of the Parole Board that the prisoner be released on licence.
In Mr Johnson's case, he was first eligible for parole on 3 rd June 2003. In accordance with usual practice he was sent a form asking whether he wished to be considered for parole some 6 months before this parole eligibility date. He responded positively. However, there then appear to have been delays in assembling the dossier for the Parole Board. It is not necessary to examine the exact reasons for the delay. But, whereas a decision by the Parole Board would normally be taken in advance of the parole eligibility date, in Mr Johnson's case that did not happen. It still had not happened when this claim applying for permission to apply for judicial review was lodged on 14 th January 2004, nearly eight and a half months after the eligibility date.
On 20 th January 2004 Collins J. directed an urgent hearing of the application for permission. On 23 rd January 2004, the application was adjourned and the Respondents undertook to consider the application for parole as soon as practicable. On 13 th February 2004, the Parole Board recommended Mr Johnson's release and he was released on 23 rd February 2004. On 25 th February 2004 Sullivan J. refused permission on the basis that the remedy which had been sought (consideration of the parole application) had already taken place and because the claim for damages could not succeed as the law then stood.
At about this time the case of R (West) v Parole Board; R (Smith) v Parole Board [2005] UKHL 1 [2005] 1 WLR 350 was making its way to the House of Lords. When Mr Johnson sought to pursue his application for permission to apply for judicial review in the Court of Appeal, Scott Baker LJ on 15 th July 2004 adjourned the application pending a decision in West and Smith. Judgment was given by the House of Lords on 27 th January 2005. Thereafter Wall LJ gave permission to apply for judicial review on 8 th November 2005. It was that claim which was dismissed on 11 th July 2006. Sir Paul Kennedy granted permission to appeal on 9 th November 2006.
Article 5 ECHR
Article 5 of the Convention, so far as material to the present case, provides:
'(1) Everyone has the right to liberty and security of the 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 his 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'
Mr Gledhill, on behalf of the Claimant, has always acknowledged that any delay in arranging the first consideration of his client's application for parole would not amount to a violation of Article 5(1). It is accepted that Mr Johnson was convicted by a competent court and was deprived of his liberty in accordance with a procedure prescribed by law. His detention was still pursuant to the sentence of imprisonment which that court had imposed. Mr Gledhill argued before the deputy high court judge and has argued on the appeal, however, that there has been a breach of the obligation to determine speedily the lawfulness of Mr Johnson's detention, having regard to the delay after the parole eligibility date. Thus he argues that there has been a breach of Article 5(4) and that such a breach brings into play Article 5(5), so that Mr Johnson has an enforceable right to compensation.
The deputy high court judge decided that there was no infringement of Article 5(4) and did not thus address what compensation Mr Johnson might be entitled to if there was a breach, or which of the respondents would be responsible for providing that compensation. It is right to say that the Parole Board could not make a decision until the Secretary of State had referred Mr Johnson's case to it—see Criminal Justice Act 1991 s.35(1) and thus the Parole Board would suggest that the fault lies with the Secretary of State. But if we were to reverse the deputy high court judge as to whether there was a breach of Article 5(4), it would be necessary for the matter to be remitted on the compensation issue unless a compromise could be reached.
The functions of the Parole Board
As I have said, the Parole Board can only make a decision once the case is referred to it. Once the case is referred to it the Parole Board must consider whether to recommend early release. In circumstances where prisoners have been released, the Parole Board may also consider whether to recommend recall of prisoners and, where prisoners are recalled for being in breach of their licence, it will be for the Parole Board to consider whether the licence should be revoked and whether the recall was justified.
The Home Secretary can give directions to the Parole Board as to matters which it is to take into account and, in giving directions, the Secretary of State must have particular regard to (a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation—Criminal Justice Act 1991 s.32(6). The Secretary of State has given such directions, paragraph 1 of which says:—
“In deciding whether or not to release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision which might help the rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into the account that safeguarding the public may often outweigh the benefits to the offender of early release.”
Analogy with those serving indeterminate sentences
The starting point for Mr Gledhill's argument, both before the deputy high court judge and before us, was the position in relation to a person serving an indeterminate sentence, e.g. “an automatic life sentence” under the regime established by the Crime (Sentences) Act 1997 s.2. The position of the automatic life prisoner was considered by the Court of Appeal in R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770 [2002] 1 WLR 3284. Under the 1997 Act a life sentence had to be imposed on a person convicted of a serious offence if they had previously been convicted of another (listed) serious offence and there were no exceptional circumstances. On sentencing such a person the court must fix the 'tariff' i.e. the period that must be served by the prisoner before he could be considered for release on licence by the Parole Board. By s.28(7) the life prisoner could require the Secretary of State to refer his case to the Parole Board at any time after he had served the tariff part of the sentence. The policy of the Secretary of State was to refer cases to the Parole Board approximately six to nine months in advance of the expected hearing. On receipt of the reference, the Board instituted a process that depended on the hearing date fixed by them. The policy of the Board and of the...
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