R (Sim) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene |
| Judgment Date | 19 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1845 |
| Docket Number | Case No: C3/2003/0383/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2003 |
[2003] EWCA Civ 1845
Lord Justice Ward and
Lord Justice Keene
Mr Justice Munby
Case No: C3/2003/0383/QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
(The Hon. Mr Justice Elias)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr R Singh Q.C., & Mr N Giffin Q.C., (Secretary of State for Home Dept) (instructed by Treasury Solicitor) for the Appellant
Mr E Fitzgerald Q.C., & Mr K Gledhill (instructed by Bhatt Murphy, London N1 6HB) for the 1 st respondent
Miss K Steyn (Parole Board) (instructed by Treasury Solicitor) for the 2 nd respondent
Introduction
The principal issue raised by this appeal is how Article 5 of the European Convention on Human Rights affects the detention of an offender who has been recalled to prison while on licence under an extended sentence passed under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 ("PCCA"). Article 5 embodies the right to liberty and security of person. Section 85 of the PCCA enables a court to impose in cases of a sexual or violent offence a sentence which consists of a custodial term and an "extension period" during which the offender will be on licence beyond the normal licence period. It will be necessary to look in due course at the detailed provisions of Article 5 and section 85. The appeal is brought by the Secretary of State for the Home Department, with the support of the Parole Board which, though strictly speaking a respondent, I shall for convenience refer to as one of the appellants. In this judgment "the respondent" means Mr Sim.
The Factual Background
The respondent was convicted of two offences of indecent assault and the offence of indecency with a child under 14, the victim of all three offences being the 7 year old daughter of a friend. On 17 February 2000 he was sentenced to an extended sentence under what was then section 58 of the Crime and Disorder Act 1998, now section 85 of the PCCA. The sentence consisted of a custodial term of 2 1/2 years and an extension period of 5 years. The judge in passing sentence did not expressly explain why he was imposing an extended sentence, merely observing that the respondent had a bad record, including robbery but had no previous convictions for any kind of sexual offences.
The respondent was released from prison on 11 January 2001. This was because he had then served one-half of the custodial sentence, once the time spent in custody prior to trial was taken into account. For the purposes of section 33(1) of the Criminal Justice Act 1991 ("the 1991 Act") he was to be treated as a short-term prisoner, that is to say one serving a sentence of imprisonment for a term of less than 4 years: see section 44(2) and (7) of the 1991 Act. Consequently the Secretary of State was under a duty to release him on licence at the half-way stage in his custodial term.
The terms of his licence placed the respondent under supervision until his licence expired on 27 August 2006 and required him to comply with certain conditions. Condition vi was that he be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of the supervision, which were to protect the public, prevent him from re-offending and secure his successful reintegration into the community. Other conditions required him to reside initially at Basildon Bail Hostel and not leave to live elsewhere without prior approval of his supervising officer and not to return to Hostel premises under the influence of alcohol.
However, on 17 July 2001 his supervising officer requested his recall to custody. As Elias J. accurately put it, three matters were identified as the grounds for this request (the respondent being the claimant in the proceedings below):
"… First, that the claimant did not return to the Bail Hostel on 14 July 2001 but only returned the next morning. Second, that on 13 July 2001 the claimant had been arrested by the police with regard to an alleged indecent exposure to teenage girls; and third, that he had already received written warnings on 14 February and 26 June 2001 with regard to the fact that he had returned to the Hostel under the influence of alcohol. The supervising officer submitted that these factors demonstrated a breach of the conditions of his licence, and in particular the obligation "to be of good behaviour, not to commit any offence and not take any action which would jeopardise the objectives of your supervision."
On 20 July 2001 the Secretary of State revoked the respondent's licence under section 39 of the 1991 Act and recalled him to prison. The reasons given for the revocation were in essence that he had broken the conditions of his licence in that he had been arrested for an alleged offence of indecent exposure to two teenage girls and had failed to return to the Hostel on 14 July 2001. By section 39(3) a person recalled to prison in such circumstances is entitled to make representations in writing against his recall and then, under section 39(4), to have his case referred to the Parole Board. The respondent exercised that right and, following an adjournment at his request, an oral hearing took place on 15 April 2002. The Parole Board gave its decision on 17 April 2002, that decision being to refuse to direct his release. The respondent then brought judicial review proceedings to quash that decision and for certain declarations.
It is not in dispute that, by the date of the hearing on 15 April 2002, the respondent was no longer suspected of the indecent exposure to which the Secretary of State had referred in his recall decision. Moreover, in its decision letter of 17 April 2002 the Parole Board accepted that his absence from the Hostel on 14 July 2001 might be excused as a result of the circumstances existing at the time. But it nonetheless concluded that it was not satisfied that it was no longer necessary for the protection of the public that he should be confined. That double negative formulation was the result of the statutory wording of section 44A of the 1991 Act, which by subsection (4) provides that on such a reference to it
"the Board shall direct the prisoner's release if satisfied that it is no longer necessary for the protection of the public that he should be confined (butnototherwise)." (emphasis added)
The Board set out its reasons for reaching its conclusions in the following terms:
"You have continued to deny the present offences and apparently because of this have declined to participate in any programme designed to assist you in your rehabilitation. In the absence of such work the panel looked for other signs of progress.
…
There was not any evidence of any positive change of attitude towards your offences, there was a considerable body of evidence which the panel accepted that in an escalating pattern of seriousness, during your time at the hostel, you frequently returned to the hostel under the influence of alcohol in breach of condition (ix) of your licence, were aggressive towards other inmates and members of staff, showed no respect for the rules of the hostel and eventually were dismissed from your employment because of drunkenness. In short, the panel was quite satisfied you took many actions which would have jeopardised the objectives of your supervision – namely to protect the public and serve your successful reintegration into the community.
Further having heard the evidence from you about your state of mind at the time, the panel was reinforced in its view that at the time you could not be managed on licence and you have failed to appreciate the need for any offending behaviour work since, hence the panel was satisfied you continue to pose that risk.
The panel considered that against a background where you failed to undertake work to address your offending, have repeatedly breached your licence conditions and, in particular, have shown no insight into your drinking habits and the effect that these have on your behaviour, the risk of your re-offending, were you immediately released is high. The panel is accordingly of the unanimous view that your immediate release would present an unacceptable risk to the public of further offences being committed and your representations against recall are rejected."
The respondent challenged that decision on a number of grounds before Elias J. Some of those grounds no longer give rise to any live issue. In his judgment Elias J. decided that, on the facts of this case and in the light of his conclusions of law on some of the issues, there was no basis for quashing the Parole Board's decision, which was justifiable and involved no unfairness. However, as a result of his conclusions on some of the legal submissions made to him, he made two declarations. As set out in his order, they read as follows:
"1. The decision to continue to detain a prisoner who has been subject to recall during an extended licence period is a decision which attracts the safeguards of Article 5; accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with Article 5.4
2. Section 44A(4) of the Criminal Justice Act 1991 must be construed so that the Parole Board is obliged to conclude that it is no longer necessary to detain the recalled prisoner unless the Board are positively satisfied that the interests of the public require that he should be confined."
Those declarations give...
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