R (West) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Sedley,Lady Justice Hale |
| Judgment Date | 14 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1641 |
| Docket Number | Case No: C/2002/1150/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2002 |
[2002] EWCA Civ 1641
Lord Justice Simon Brown
(Vice-President of the Court of Appeal Civil Division)
Lord Justice Sedley and
Lady Justice Hale
Case No: C/2002/1150/QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION—Administrative Court)
(Mr Justice Turner)
Richard Clayton Esq, QC & K Gledhill Esq (instructed by Messrs Kaim Todner) for the Appellant
Ms K Stern & Jonathan Crow Esq (instructed by The Treasury Solicitor) for the Respondent
Do the Parole Board's decisions under s39(5) of the Criminal Justice Act 1991 as amended ("the Act"), decisions whether to recommend the re-release on licence of determinate sentence prisoners recalled to prison upon the revocation of their licences, involve "the determination of [a] criminal charge" within the meaning of Article 6 of the European Convention on Human Rights? If so, are such prisoners entitled to an oral hearing with legal representation before the Board?
These are the issues raised on this appeal. Their importance is obvious. In the year ending 31 March 2002 the Board considered 516 cases in which determinate sentence prisoners made representations against their recall. Under the Parole Board's existing procedures oral hearings in such cases are only very exceptionally allowed. In that same year, indeed, only one such hearing was held.
The issues being of general application, the particular facts of the present case are of little importance save insofar as they serve to illustrate the arguments arising. That is particularly so given that this appellant has long since been released from custody and is now no longer subject to further recall so that the appeal is strictly moot. That notwithstanding, Mr Crow for the Parole Board expressly recognises that the issues raised are of general importance and should be determined. I will accordingly summarise the facts very briefly indeed.
First, however, it is convenient to set out s39 of the Act insofar as it applies to determinate sentence prisoners:
"39(1) If recommended to do so by the Board in the case of a short-term or long-term … prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
(3) A person recalled to prison under sub-section ( 1) or (2) above—
(a) may make representations in writing with respect to his recall; and
(b) on his return to prison shall be informed of the reasons for his recall and of his right to make representations.
(4) The Secretary of State shall refer to the Board—
(a) the case of a person recalled under sub-section (1) above who makes representations under sub-section (3) above; and
(b) the case of a person recalled under sub-section (2) above.
(5) Where on a reference under sub-section (4) above the Board—
…
(b) recommends in the case of [any short-term or long-term prisoner],
his immediate release on licence under this section, the Secretary of State shall give effect to the … recommendation.
(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
Having been sentenced in October 2000 (following remand in custody) to three years' imprisonment for affray, the appellant, as a short-term prisoner, was automatically released on licence at the half-way stage of his sentence on 6 August 2001 (see s33(1)(b) of the Act), his licence being expressed to expire, unless previously revoked, when he had served three-quarters of his sentence on 7 May 2002 (see s37(1) of the Act).
The licence conditions (largely in standard form) required the appellant, whilst under supervision, to:
"(i) keep in touch with your supervising officer in accordance with any reasonable instructions
…
(iii) live where reasonably approved by your supervising officer
…
(vi) be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community."
On 16 August 2001, just ten days after the appellant's release on licence, a senior probation officer reported:
"Mr West is assessed as posing a high risk to the public on account of a history of substance misuse/mental disorder and lack of support in the community coupled with a record of violence and self-harm. On release, he went to stay with his father …, in the absence of more suitable provision for his needs. On 14 August, I received a telephone call from Islington Social Services who reported an alleged incident of assault against his former partner and criminal damage by Mr West. The victim did not wish to prosecute and when questioned further neither confirmed nor denied an incident took place. I have today spoken to the manager of the hostel where the incident took place and he confirmed that a door was kicked in which it was suspected was carried out by Justin West who had been observed drinking at the premises. There is no corroborative evidence in view of his partner's reluctance. They have issued Mr West with a letter expressing concern about his conduct and asking him to stay away from the hostel."
That report went to an assistant chief probation officer who on 20 August 2001 wrote:
"Since [the early] report, Mr West has not kept his appointment with his supervising officer, Peter Stevens today. Also Mr Stevens has learned from Mr West's family that they are concerned that he has not been staying regularly at his address and there is some indication that he has returned to using crack. Given the background concerns regarding the risk of violent behaviour by Mr West, I would recommend that the licence be revoked on an urgent basis. The grounds are breach of Condition 5(i) (failure to keep in touch with supervising officer) and 5(vi) (good behaviour)."
Two days later, on 22 August 2001, the Secretary of State revoked the appellant's licence pursuant to s39(2) of the Act, stating as his reasons that the appellant had breached conditions 5(i), 5(iii) and 5(vi) of his licence in the ways particularised and concluding:
"In view of the offences for which you were originally sentenced and your behaviour described above, the Home Secretary is no longer satisfied that is right for you to remain on licence."
On 24 August 2001, two days after his licence was revoked, the appellant was arrested and returned to prison. The Secretary of State then referred his case to the Board pursuant to s39(4)(b) of the Act. On 27 September 2001 the appellant's solicitors wrote on his behalf making extensive written representations pursuant to s39(3) of the Act as to why he should not have been recalled and urging the Board to hold an urgent oral hearing to be attended by witnesses whose evidence should be heard on oath.
On 2 October 2001 the Parole Board rejected those representations in the following terms:
"The panel has carefully considered the representations made on behalf Mr West by his solicitors. He has accepted that he missed one appointment and that he kicked a door in at the hostel where his ex-partner was staying. His reasons for his behaviour are noted. However, the panel does not accept his explanations. There were options open to him to deal with the situation properly and effectively. It is noted that he had been seen to be drinking at the hostel. [He] accepts that he failed to reside at the approved address, albeit on his admission, for one night only. The panel rejects Mr West's representations. In their view his behaviour, taken as a whole, indicates a poor sense of judgment and a propensity for acting in a way which is incompatible with a continuing licence."
In short, the Board refused to recommend the appellant's immediate release on licence with the result that he was detained in prison for a further 8 1/2 months until 9 May 2002 (two days being added because of the delay between the revocation of his licence and his arrest and return to prison), and that when he was then released (having served three-quarters of his sentence) his release was not unconditional as otherwise it would have been but conditional pursuant to s32A(3) of the Act.
The initial challenge to that decision, a challenge advanced on substantially wider grounds (including an alleged breach of Article 5) than those now pursued on appeal, was rejected by Turner J on 26 April 2002.
Before turning to the central argument which arises with regard to the application of Article 6, I should refer to one further provision of the Act and to the directions given under it. Section 32(6) provides:
"The Secretary of State may … give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part; and in giving such directions the Secretary of State shall in particular having regard to—
(a) the need to protect the public from serious harm from offenders; and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
The relevant directions issued by the Secretary of State...
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