R (McAlinden) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HHJ Milwyn Jarman |
| Judgment Date | 04 May 2010 |
| Neutral Citation | [2010] EWHC 1557 (Admin) |
| Docket Number | CO/9153/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 May 2010 |
[2010] EWHC 1557 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: His Honour Judge Milwyn Jarman QC
(Sitting as a Deputy High Court Judge)
CO/9153/2006
Mr H Southey QC (instructed by Kaim Todner) appeared on behalf of the Claimant
Ms N Lieven QC (instructed by Treasury Solicitors) appeared on behalf of the Defendant
HIS HONOUR JUDGE MILWYN JARMAN QC: In this case the claimant was sentenced to a term of imprisonment of one year, three months and 20 days for an offence of assault occasioning actual bodily harm. On 14 August 2006 he was released from Her Majesty's Prison Belmarsh on Home Detention Curfew, also known as electronic tagging, under the provisions of section 246 of the Criminal Justice Act 2003. That licence was due to last until 17 November 2006. That is the date at which the claimant would have served the requisite custodial period as defined in section 244(3) of the 2003 Act.
On 3 September 2006, however, the claimant's licence was revoked by the Secretary of State pursuant to section 255 of the 2003 Act, after the company responsible for the electronic tagging had reported that the strap attached to the tag, known as a personal identification device, on the claimant's leg had been tampered with, and accordingly the claimant was recalled to prison.
On 27 October 2006, in accordance with his right to do so under section 255(2) of the 2003 Act, he made written representations against this recall and requested that that should be considered by the Parole Board.
On 6 November 2006 a report was obtained from a firm of independent forensic scientists and consultant engineers on the issue of what had caused the failure of the personal identification device. A copy of that report was sent to the claimant's solicitors on 7 November 2006. It summarised that the strap had failed because it had been deliberately pulled and that the integrity of the device was not compromised by any component defect or weakness. That is something which the claimant denied.
He was released automatically in December 2006. Permission was granted for him to apply for judicial review by Collins J on 20 April 2007 after such release. The judge did so on the basis that the claim raised important issues of principle. There have been a number of adjournments while cases have been decided by the House of Lords, but the claimant submits that the cases have not determined the issues raised by this claimant.
Those issues are these. Firstly, whether the failure to provide for the Parole Board to review the revocation of the claimant's licence was incompatible with his rights under Article 5(4) of the European Convention on Human Rights. He submits that his rights were violated because there was no review of his recall to prison by a court. Secondly, whether a declaration of incompatibility should be made if any violation of Article 5(4) is found.
I should set out not only Article 5(4) of the Convention, but Article 5(1). That reads:
“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…”
Article 5(4) provides:
“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.”
On behalf of the claimant, Mr Southey QC accepts that, in the case of R(Benson) v Secretary of State [2007] EWHC Admin 2055, Collins J concluded that Article 5(4) does not apply where a prisoner is recalled to prison for an alleged breach of Home Detention Curfew. Subsequently, Cranston J in Mason v Ministry of Justice [2009] 1 WLR 509 determined that Article 5(4) does not apply when the Prison Service decides whether to release a prisoner on Home Detention Curfew. He did not directly consider the position where a prisoner is recalled following release.
Since those two judgments were delivered, the House of Lords concluded in R(Black) v Secretary of State [2009] 1 AC 949 that Article 5(4) does not apply when a decision is taken as to whether a determinate prisoner should be released early. The House of Lords concluded that different considerations apply when a determinate prisoner is recalled.
Mr Southey, in advancing the claimant's case before me, realistically accepted that were it not for the determination of the matters in the case of Black, he would be in great difficulty in advancing the submissions which he does. It is therefore necessary to examine the statutory provisions which apply and also the cases in which these matters have been considered in some detail.
The following sections of the 2003 Act are relevant:
“246 Power to release prisoners on licence before required to do so
(1) Subject to subsections (2) to (4), the Secretary of State may—
(a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period, and
(b) release on licence under this section an intermittent custody prisoner when 135 or less of the required custodial days remain to be served.
(2) Subsection (1)(a) does not apply in relation to a prisoner unless—
(a) the length of the requisite custodial period is at least 6 weeks,
(b) he has served—
(i) at least 4 weeks of his sentence, and
(ii) at least one-half of the requisite custodial period.
…
254 Recall of prisoners while on licence
(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1)—
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.
(3) The Secretary of State must refer to the Board the case of a person recalled under subsection (1).
(4) Where on a reference under subsection (3) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.
…
255 Recall of prisoners released early under section 246
(1) If it appears to the Secretary of State, as regards a person released on licence under section 246—
(a) that he has failed to comply with any condition included in his licence, or
(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence,
the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section.
(2) A person whose licence under section 246 is revoked under this section—
(a) may make representations in writing with respect to the revocation, and
(b) on his return to prison, must be informed of the reasons for the revocation and of his right to make representations.
(3) The Secretary of State, after considering any representations under subsection (2)(b) or any other matters, may cancel a revocation under this section.
(4) Where the revocation of a person's licence is cancelled under subsection (3), the person is to be treated for the purposes of section 246 as if he had not been recalled to prison under this section.
(5) On the revocation of a person's licence under section 246, he is liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large.”
There had been some amendment to these provisions since the facts which give rise to this claim occurred, but there is no material difference to the matters which I have to determine.
It may be helpful if I set out in outline the policy of the Secretary of State in dealing with the procedures set out in these sections. I do so based upon a witness statement dated 23 April 2010 filed in these proceedings and made by Stephen Bailey, who is the Head of Release and HDC Policy within the Sentencing Policy and Penalties Unit at the Ministry of Justice. What Mr Bailey says in his statement is that where there is a breach of probation supervision elements of a prisoner's licence, then these would, in the normal course of events, be reported to the Public Protection Casework Section (otherwise known as PPCS), who would consider whether to revoke the licence and recall the offender to custody under section 254 of the 2003 Act. The consequences of that would be, subject to release direction from the Parole Board or the Secretary of State, the offender would be liable to be detained until the sentence expiry date. The case would be referred to the Parole Board following recall and also at annual reviews. The Board may direct the prisoner's re-release earlier if it assesses it safe to do so. It may also make no recommendation as to the release, and the case may be considered further by PPCS if, for example, there is a significant change of circumstances. The PPCS may then make a decision on behalf of the Secretary of State to release executively.
Where the offender fails to comply with the Home Detention Curfew conditions, this would be reported normally again to PPCS, who...
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R (Whiston) v Secretary of State for Justice
...that the section 255 revocation does not involve a deprivation of liberty so as to engage Article 5(4). These cases are R (McAlinden) v Secretary of State for Justice [2010] HWC 1557 a decision of Judge Milwyn Jarman QC, sitting as a Deputy High Court judge, who in turn followed the decisio......