R (West) v Parole Board; R (Smith) v Parole Board (No 2) (Conjoined Appeals)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD CARSWELL,LORD BINGHAM OF CORNHILL,LORD WALKER OF GESTINGTHORPE,LORD HOPE OF CRAIGHEAD,LORD SLYNN OF HADLEY
Judgment Date27 Jan 2005
Neutral Citation[2005] UKHL 1

[2005] UKHL 1

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Slynn of Hadley

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Lord Carswell

Regina
and
Parole Board
(Respondents)

ex parte Smith (FC)

(Appellant)
Regina
and
Parole Board
(Respondents)

ex parte West (FC)

(Appellant) (Conjoined Appeals)
LORD BINGHAM OF CORNHILL

My Lords,

1

These appeals concern the procedure to be followed by the Parole Board when a determinate sentence prisoner, released on licence, seeks to resist subsequent revocation of his licence. The appellants contend that such a prisoner should be offered an oral hearing at which the prisoner can appear and, either on his own behalf or through a legal representative, present his case, unless the prisoner chooses to forgo such a hearing. They base their argument on the common law and on articles 5 and 6 of the European Convention, relying on both the criminal and civil limbs of article 6. The respondent Parole Board accepts that in resolving challenges to revocation of their licences by determinate sentence prisoners it is under a public law duty to act in a procedurally fair manner. It accepts that in some cases, as where there is a disputed issue of fact material to the outcome, procedural fairness may require it to hold an oral hearing at which the issue may be contested. It accepts, through leading counsel, that it may in the past have been too slow to grant oral hearings. But it strongly resists the submission that there should be any rule or presumption in favour of an oral hearing in such cases, contending that neither the common law nor the European Convention requires such a rule or such a presumption.

Justin West: the facts

2

The appellant West was sentenced to 3 years' imprisonment for affray on 27 October 2000. He was thus a short-term prisoner within the meaning of section 33(5) of the Criminal Justice Act 1991, and by virtue of section 33(1) of the Act the Secretary of State was obliged to release him on licence once he had served one-half of his sentence. In the ordinary way, his licence would have remained in force until the date on which he would (but for his release) have served three-quarters of his sentence: section 37(1).

3

The appellant, having spent some time in custody before sentence, was duly released on licence on 6 August 2001. His licence was due to expire on 7 May 2002. His licence included terms that he should place himself under the supervision of any nominated probation officer; should keep in touch with the officer as instructed; should live at an address approved by the officer and notify the officer in advance of any change of address; and should be of good behaviour and not commit any offence or take any action which would jeopardise the objectives of his supervision. He was informed in writing that he must comply with the conditions of the licence and that the objectives of the supervision were to protect the public, to prevent re-offending and to achieve his successful re-integration into the community. He was warned in writing that if he failed to comply with the requirements of his probation supervision or otherwise posed a risk to the public he would be liable to have his licence revoked and be recalled to custody until the date on which his licence would otherwise have expired.

4

On 22 August 2001 the appellant's licence was revoked and he was recalled to prison by the Secretary of State for the Home Department acting on the recommendation of the Parole Board under section 39(1) of the 1991 Act. The Board was prompted to make its recommendation by the appellant's probation officer, who was supported by her superior. The reasons given were that the appellant had breached the conditions of his licence by failing to keep in touch with his probation officer in failing to keep an appointment on 20 August without giving a reasonable explanation; by failing to live regularly at his approved address; and by visiting the hostel address of his former partner, allegedly assaulting her, and being suspected of kicking in a door at her hostel.

5

The appellant's solicitors made brief written representations against his recall to prison under section 39(3)(a) of the 1991 Act. They gave an explanation of the appellant's failure to keep the appointment, stated that he had only spent one night away from his approved address, denied that he had assaulted his ex-partner and explained that he had broken open the door to prevent his ex-partner harming herself, as she had threatened. It was denied that the incident at the hostel had involved the commission of any crime. The solicitors offered to substantiate the appellant's account and suggested that an oral hearing would be appropriate, since there were issues of fact and witnesses would be needed if the Board proposed to resolve them.

6

The Parole Board considered the appellant's representations on 2 October 2002 but rejected them. It noted his admissions concerning the appointment and the ex-partner but said that it did not accept his explanations and noted that he had, on his own admission, spent a night away from his approved address. It also noted that the appellant had been seen drinking at the hostel, a matter not put to him. The Board took the view that his behaviour, taken as a whole, indicated a poor sense of judgment and a propensity for acting in a way which was incompatible with a continuing licence: the appellant served 8½ months in prison during the period of recall.

7

His broadly-based application for judicial review of the Parole Board's decision was dismissed by Turner J on 26 April 2002: [2002] EWHC (Admin) 769. On appeal, his case was advanced on much narrower grounds, but the Court of Appeal by a majority (Simon Brown and Sedley LJJ, Hale LJ dissenting) dismissed his appeal: [2002] EWCA Civ 1641, [2003] 1 WLR 705.

Trevor Smith: the facts

8

On 8 May 1998 the appellant Smith was convicted of rape and of making threats to kill. He was sentenced to 8 years' imprisonment, reduced on appeal to 6½ years'. He was thus a long-term prisoner within the meaning of section 33(5) of the 1991 Act. By virtue of section 35(1) of that Act, he became eligible for release on licence by the Secretary of State after serving one-half of his sentence, if the Parole Board so recommended. By virtue of section 33(2) of the Act, the Secretary of State was obliged to release him on licence after he had served two-thirds of his sentence. This was his "non-parole date", the date on which he was entitled to be released. In the ordinary way, his licence would have remained in force until the date on which he would (but for his release) have served three-quarters of his sentence: section 37(1). But in this case, because the appellant had been sentenced for a sexual offence, the trial judge made an order under section 44 of the Act, the effect of which was to extend the licence period to the end of the appellant's sentence.

9

On 23 October 2000 the Parole Board refused the appellant's first application for parole. It gave written reasons for its decision, referring to the serious nature of the appellant's offences, his past record of violence, his refusal to undertake courses in prison to address his offending behaviour, his use of class A drugs in prison, his failing of a recent mandatory drugs test and his complete lack of insight.

10

The appellant was released on licence on 7 November 2001, which (taking account of time spent in custody before sentence) was his non-parole date. His licence contained the same conditions as that of the appellant West, save that it named a probation hostel at which he was to live and named a psychiatrist upon whom he was to attend.

11

The appellant lived at the named hostel. Two weeks after his release he was tested for drugs and tested positive for cocaine, benzodiazepine and methadone. He admitted the use of cocaine but denied using the other drugs. He was sent a warning letter on 23 November 2001.

12

On 10 December 2001 the appellant moved at his own request, and with the consent of his probation officer, to a different hostel. On 15 January 2002 he tested positive for cocaine and, three days later, for cocaine and opiates.

13

On 25 January 2002 the appellant's supervising probation officer, with the support of his superior, recommended the revocation of the appellant's licence. He based this recommendation on the appellant's drug use and the risk he thereby presented to the community. It was acknowledged that in every other respect the appellant had complied with his licence conditions, and had kept appointments with the psychiatrist, but the psychiatrist was concerned about the effect of drug abuse, and withdrawal from drugs, on the appellant's personality. The probation officer was worried about the effect of powerful drugs on a man whom he considered to be "volatile, impressionable and potentially dangerous". He was also concerned about his criminal associations in the drug world.

14

The Secretary of State referred the recommendation to the Parole Board to decide whether it should recommend revocation of the appellant's licence under section 39(1) of the 1991 Act. On 4 February 2002 the Parole Board recommended revocation. The Secretary of State accepted this recommendation and recalled the appellant to prison on 6 February 2002. The written reason for revocation given to him was his breach of his licence conditions in testing positive for drugs on two occasions.

15

Solicitors for the appellant submitted lengthy written representations to the Parole Board, asking the Board to recommend the release of the appellant under section 39(5)(b) of the 1991 Act, and the Secretary of State duly referred the appellant's case to the Board under section 39(4)(a)....

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