R Nezar Hindawi v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judgment Date | 01 April 2011 |
| Neutral Citation | [2011] EWHC 830 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/1767/2010 |
[2011] EWHC 830 (QB)
Before: Lord Justice Thomas
Mrs Justice Nicola Davies
Case No: CO/1767/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr T Owen QC and Miss A Macdonald (instructed by Birnberg Peirce & Partners for the Claimant
Mr J Swift QC and Mr A Sharland (instructed by The Treasury Solicitor) for the Defendant
Hearing dates 25 & 26 November 2010 and 28 January 2011
Lord Justice Thomas:
Introduction and Summary
The claimant had in 1986 attempted, as an agent of the Syrian Government, to place a bomb aboard an El Al 747; it was described by the then Lord Chief Justice as a foul and horrible act of terrorism. The plot was foiled. He was arrested and sentenced to 45 years imprisonment, a term of imprisonment that expires in 203Under the applicable legislation, he became eligible for parole in 2001 and must be released on parole no later than 2016. His application for parole was considered by the Parole Board. In 2009 it recommended his release on terms that he was immediately deported to Jordan. He was one of the handful of prisoners remaining in a category of prisoners where the Secretary of State for Justice has under the applicable legislation to make the decision whether to release on parole. The Secretary of State decided not to release the claimant, rejecting the recommendation of the Parole Board. In 2010 legislation passed by Parliament to remove that power from the Secretary of State took effect for the future, but that did not affect the decision made by the Secretary of State.
In these proceedings, the Secretary of State's decision to refuse parole is challenged. It is said that the process of decision making was carried out in a way which was unfair; that the decision to reject the recommendation was not rational and that in any event the recent decision of the Strasbourg Court in Clift v United Kingdom has the consequence that he can no longer make the decision. The effect of the decision of the Strasbourg Court on these proceedings can only be determined in the Supreme Court. This court can only decide the fairness of the procedure and the rationality of the decision.
The Secretary of State was presented with papers for his personal decision in this case. The papers did not put a balanced case; they only put the case for rejecting the decision of the Parole Board and no case as to why he should accept it. Moreover, the case for rejection was drafted principally by the official who had had day to day conduct of that case in front of the Parole Board and lost. The Secretary of State was therefore not put in a position where he could properly take the decision. That is contrary to principles of justice that our law has always applied in cases however heinous a crime might be. A consequence of the unfair procedure was that the decision made by the Secretary of State was flawed, principally because it did not set out proper reasons for rejecting the finding that the claimant was a credible witness, which the Parole Board had made after hearing his evidence. That finding was central to the assessment of the future risk that the claimant posed.
His decision must therefore be quashed. The parties have requested that further submissions be made as to the consequential relief – see paragraph 113.
I THE LEGISLATION AND THE DECISIONS
The background facts and legislative provisions
(i)The crime committed by the claimant in 1986 and the sentence imposed
On 17 April 1986, the claimant, a Jordanian, had, at the instigation of the Government of Syria and with the assistance of its officials, including diplomats in London, provided to his Irish fiancée, then pregnant with his child, a bag for a journey she was to make to Israel. Unknown to her, it contained explosives in the expectation that it would be carried by her onto an El Al Boeing 747 aircraft bound from London to Israel; a timing device had been set to detonate the explosives when it was 39,000 feet above Austria with the result that the 375 people on board the aircraft would have been killed.
He was charged with attempting to place on an aircraft a device likely to destroy or damage the aircraft. He pleaded not guilty, but was convicted at the Old Bailey on 24 October 1986 and sentenced to a determinate sentence of 45 years imprisonment. In dismissing the application for leave to appeal against sentence, Lord Lane, Chief Justice, said:
"Put briefly, this was about as foul and as horrible a crime as could possibly be imagined. It is no thanks to this applicant that his plot did not succeed in destroying 360 or 370 lives in the effort to promote one side of a political dispute by terrorism.
In the judgement of this Court the sentence of 45 years imprisonment was not a day too long. This application is refused."
On 13 November 2000, a deportation order was made against him that he be deported to Jordan on release; he did not appeal. In these proceedings he has made it very clear that he wishes to return to Jordan; it has been made very clear on his behalf that no suggestion will be made that his human rights will be infringed if he is so deported.
(ii) The legislation relating to parole
All prisoners given determinate sentences, as opposed to life sentences or sentences of Imprisonment for Public Protection, are entitled by law to parole at a point prior to the end of the sentence period. Although his 45 year sentence does not expire until 17 April 2031, the claimant must be released on parole no later than 18 June 2016.
Since the time when the claimant was sentenced, the legislation relating to parole has undergone numerous and complex changes. It is therefore necessary first to outline the position as it applied to the claimant when the decision under challenge was made in 2009:
i) The claimant was and remains categorised for the purposes of the legislation as a long term prisoner serving a determinate sentence of 15 years or more.
ii) He became eligible to be considered for parole when he had served one third of his sentence (18 April 2001); if not released on parole by the time he had served two thirds of his sentence and additional days (18 June 2016), he is entitled to release.
iii) The claimant's review for parole commenced in 2001. Reviews were normally conducted by the Parole Board, but as the claimant had been recommended for deportation he was not entitled under the policy then applicable to have those reviews referred to the Parole Board. They were not referred and the decision in each of those reviews that he should not be released was made by the Secretary of State. The claimant unsuccessfully challenged the reasons for refusal given by the Secretary of State in judicial review proceedings.
iv) The provisions that denied the claimant a review by the Parole Board because he was a deportee were, however, successfully challenged in R (Clift, Hindawi and Headley) v Secretary of State for Justice [2007] 1 AC 484. Lord Bingham made clear that the differential treatment imposed by statute on the ground of his status as a deportee was "an indefensible anomaly" and breached his Convention rights.
v) Although recommendations for parole were made by the Parole Board, the decision to release on parole was for many years the decision of the Secretary of State. He did not have to follow the decision of the Parole Board. As a result of successive changes made to the legislation, by 2006 the position had been reached that the Secretary of State had to give effect to a recommendation by the Parole Board for release on parole for all determinate and life prisoners with one exception. That exception related to the category of prisoners into which the claimant fell. In all other cases, the Secretary of State no longer had the power to reject the recommendation of the Parole Board.
vi) The statutory provision which remained applicable to the very small number of prisoners, including the claimant, who had been sentenced to 15 years or more before 1 October 1992 was s.35 (1) of the Criminal Justice Act 1991. This provided:
"After a long term prisoner has served one-half of his sentence, the Secretary of State may, if recommended by the Board, release him on licence."
In other words, once a prisoner had reached the half way point in his determinate sentence, the Secretary of State was obliged to refer the question of whether he should be released to the Parole Board; if the Parole Board recommended his release, it was for the Secretary of State to release him. He could reject the decision of the Parole Board.
vii) The continued right of the Secretary of State to reject a recommendation of the Parole Board in respect of the very few prisoners to which it applied was also challenged in R (Clift, Hindawi & Headley) on the basis it breached Convention rights, but on this issue it was unsuccessful. The further decision in R (Black) v Secretary of State for Justice [2008] UKHL 1, [2009] 1 AC 949 affirmed the position under the law of the United Kingdom. Lord Brown made clear at paragraph 81:
"There is nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision, notwithstanding that it involves rejecting another body's recommendation. In one sense it may be said to be putting the cart before the horse. And, as we said in Clift, it is indefensibly anomalous. But it is not contrary to article 5(4)."
(iii) The reference to the Parole...
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