R (on the application of Whiston) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Carnwath,Lord Neuberger,Lord Kerr,Lord Hughes |
| Judgment Date | 02 July 2014 |
| Neutral Citation | [2014] UKSC 39 |
| Date | 02 July 2014 |
| Court | Supreme Court |
[2014] UKSC 39
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Carnwath
Lord Hughes
Appellant
Hugh Southey QC Amanda Weston
(Instructed by Chivers Solicitors)
Respondent
Nathalie Lieven QC Alison Chubb
(Instructed by Treasury Solicitors Department)
Heard on 26 March 2014
Lord Neuberger (with whom Lord Kerr, Lord Carnwath and Lord Hughes agree)
On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18 months in prison for robbery. He was entitled to automatic release on licence after serving half his sentence, ie on 5 July 2011. However, on 21 February 2011, he was released on licence under a so-called home detention curfew pursuant to section 246 of the Criminal Justice Act 2003. On 7 April 2011, the Secretary of State decided to revoke the licence under section 255 of the 2003 Act, because the appellant's whereabouts could no longer be monitored in the community, and he was recalled to prison. The decision of the Secretary of State was not subject to any statutory judicial control or review.
The question raised on this appeal is whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the 2003 Act, has rights pursuant to article 5(4) of the European Convention of Human Rights. More broadly, the appeal raises the issue of how far it is open to a person who is still serving a sentence imposed by a court to invoke article 5(4).
All the statutory provisions relevant to this appeal are in the 2003 Act, but, as has been regrettably familiar in the field of criminal law, the provisions have been successively amended or added to by subsequent legislation. As these amendments and additions do not affect the analysis of the arguments or the outcome, I shall describe the provisions in their current form, namely as amended most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Where a person has been convicted and given a determinate prison sentence of twelve months or more (a "sentence period"), section 244(1) provides that, subject to certain specified exceptions, once he has served half his sentence, "it is the duty of the Secretary of State to release him on licence". Section 244(3) defines the first half of the sentence period as the "requisite custodial period", at the end of which he is thus entitled to be released on licence.
A prisoner may also be released on licence during the requisite custodial period under section 246(1), which, so far as is relevant, is in the following terms:
"Subject to subsections (2) to (4), the Secretary of State may release on licence under this section a fixed-term 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….."
Subsection (2) limits this power in relation to short sentences, and subsection (4) excludes the operation of subsection (1) in certain other cases, including cases where "(aa) the sentence is for four years or more" and "(g) the prisoner has been released on licence under this section at any time and has been recalled to prison under section 255(1)(a)".
Section 250(4) states that any licence "(a) must include the standard conditions", which are stated to be "such conditions as may be prescribed", and "(b) may include" (i) any condition authorised by certain other statutes, and "(ii) such other conditions of a kind prescribed by the Secretary of State … as [he] may for the time being specify in the licence".
Section 250(5) provides that a licence granted under section 246 must be subject to a curfew condition in accordance with section 253, which is in the following terms:
"(1)…. [A] curfew condition is a condition which —
(a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified ….. and
(b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
(2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than 9 hours in any one day ….
(3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released … on licence under section 244."
Thus, a curfew condition cannot operate beyond the end of the requisite custodial period, the point at which the prisoner would in any event be entitled to be released. The place specified in a person's licence is normally his home, and for that reason a licence under section 246 is often known as "home detention curfew".
By virtue of section 249, a licence, whether under section 244 or 246, remains in place until the end of the sentence period, unless the licence is revoked and the person subject to the licence (the "licensee") recalled. The Secretary of State has the power to revoke a licence and recall a licensee back to prison pursuant to two different statutory provisions.
First, section 254(1) of the 2003 Act gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. Where the power of revocation is exercised under section 254(1), the licensee is entitled pursuant to section 254(2) to be told the reasons for his recall and to make representations to the Secretary of State, who can cancel the revocation of the licence under section 254(2A). Sections 255A-255C contain provisions which apply when a licence is revoked under section 254(1) and the revocation is not cancelled. In general terms, in such an event, the Secretary of State may release the former licensee, if satisfied that he "will not present a risk of serious harm to the public", and, if she is not so satisfied, she must refer the case to the Parole Board for a binding ruling within that period if the prisoner makes representations. If there is no such release, the Secretary of State must refer the question of the former licensee's release to the Parole Board within 28 days of his return to custody – see sections 255B(4) and 255C(4).
Secondly, section 255(1) confers a specific power on the Secretary of State to revoke a section 246 licence or home detention curfew, and it provides as follows:
(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."
Thus, the power of recall under section 255 can only be exercised whilst the curfew condition is in force — ie until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right. (Thereafter, the licence can only be revoked under section 254). Further, section 255(2) provides for a licensee to be given the reasons for his recall and the opportunity to make representations to the Secretary of State, who can cancel the revocation pursuant to section 255(3). However, unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of State's section 255 power of recall.
Accordingly a prisoner can be recalled under section 255 even if he has fully complied with the conditions of the licence. The procedural safeguards are that the recalled prisoner must be given reasons for the recall and be able to make representations about them.
So the statutory position in relation to determinate sentences is, in outline, as follows:
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a) All prisoners are entitled to release on licence after serving half their sentence;
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b) If recalled, a prisoner is either entitled to re-release after 28 days or to referral to the Parole Board, whose decision on re-release is binding;
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c) There may be discretionary release, sanctioned by the Secretary of State, for the limited period of up to 135 days before the prisoner becomes entitled to release at the half way mark in his sentence.
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d) This discretionary release is also on licence but the licence must additionally incorporate Home Detention Curfew terms.
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e) During the period of the discretionary release, the prisoner may be recalled not only for breach of licence or demonstrated risk to the public but also because the Home Detention Curfew system cannot be made to work in his case. He must be given the reasons and is permitted to make representations to the Secretary of State.
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f) Such recall within the limited period of up to 135 days is not subject to Parole Board or court review, but
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g) So soon as the half way stage in his sentence is reached, the automatic Home Detention Curfew terms fall away and the rules set out at (a) and (b) apply.
There are quite separate rules for prisoners serving indeterminate terms, where the criteria for release on licence, recall or re-release on licence are largely geared to current risk to the public; in such cases all decisions are referable to the Parole Board whose ruling is binding.
The short point raised in this appeal is whether a recall to prison under section 255, without a right of review by the Parole Board or any other judicial body, is consistent with article 5(4) of the Convention.
Article 5(1)(a) of the Convention provides as...
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