R (West) v Parole Board
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 2002 |
| Neutral Citation | [2002] EWHC 769 (Admin) |
| Date | 26 April 2002 |
| Court | Queen's Bench Division (Administrative Court) |
[2002] EWHC 769 Admin
Court and Reference:Administrative Court; CO/5350/01
Turner J
Appearances:K Gledhill and S Simblet (instructed by Kaim Todner) for W; J Crow and K Stern (instructed by the Treasury Solicitor) for the defendant.
Whether the recall of a determinate-sentenced prisoner released on licence was a criminal charge or amounted to a determination of a civil right for the purposes of Art 6 European Convention; whether Art 5 was engaged; whether the failure to hold an oral hearing was unfair.
W, a short term prisoner who had been released on licence at the half-way point of his sentence, as required by statute, was recalled to prison: it was alleged that he had committed an assault, that he had failed to attend an appointment with his probation officer, and that he had not lived where required to do, thereby breaching various conditions of his licence. Pursuant to s. 39(4) Criminal Justice Act 1991, W's case was then referred to the Parole Board, which has the power to order the release of recalled prisoners. His solicitors made written representations against the recall, denying that there had been any breach of licence conditions: the assault was denied, a good reason for missing the appointment was given, and it was denied that he resided other than where required. An application was made that W should be allowed an oral hearing at which witnesses should attend to establish the facts.
The representations were rejected without an oral hearing. W remained in detention; by virtue of the statutory regime, he was due to be released at the three-quarter point of his sentence, which amounted to a further 8 months in custody. He commenced judicial review proceedings, arguing that the failure to hold an oral hearing amounted to a breach of Art 5 European Convention (detention without a proper basis), Art 6 of the Convention (determination of a criminal charge and/or of the civil right to liberty by a fair trial) and of the common law requirements of fairness.
1. This application for judicial review challenges the decision of the Parole Board not to recommend the release of the claimant following his recall after his release on licence at the half-way point in his sentence of imprisonment of 3 years, following his conviction and sentence for an offence of affray on 27 October 2000. After allowing for time served prior to sentence, the claimant was released from prison on 6 August 2001. The date of revocation of the licence by the Secretary of State was 22 August 2001. It was against the revocation of his licence that the claimant appealed to the Parole Board which rejected the appeal on 3 October 2001.
2. The challenges to the decision are based on alleged failure by the Home Secretary to comply with Arts 5 and 6 of the European Convention on Human Rights. It was respectively the contention advanced on the claimant's behalf that the lawfulness of the detention should have been reviewed by a court before the claimant was ordered to be returned to prison. Alternatively or cumulatively, the process which led to the recall amounted to the determination of a criminal charge, or the resulting committal to prison amounted to an infringement of the claimant's right to liberty such as to engage the provisions of Art 6 of the Convention. Accordingly there should, at the least, have been an oral hearing into the allegations which led to the decision to order the claimant's recall.
3. The position of the Home Secretary was that while there was a power which enabled him to order an oral hearing before an order for recall was made, it was merely a power which he was not obliged to exercise in every case. His decision not to order such a hearing in the present case was not susceptible to effective challenge. It was, further, the position of the Home Secretary that properly understood, neither Art 5 nor 6 were engaged on the facts of this case. The critical feature of each was that where, as here, there had been a determinate sentence, that was the matter which satisfied the provisions of the Articles in question. Neither had any application, and so were not engaged, in a case such as the present in which administrative recall was the event which gave rise to the complaint.
4. The statutory framework is of importance and must be set out. The Act which is principally in play is the Criminal Justice Act 1991, as amended by the Crime and Disorder Act 1998. Section 33(1)(b) makes it the duty of the Secretary of State to release a short term prisoner, that is one who is sentenced to a term of less than four years, and who has been sentenced to a term of twelve months or more to release him on licence once he has served one-half of his sentence. Section 37(1) of the Act provides that where a prisoner has been released on licence, the licence is to remain in force until the date on which, but for the release, he would have served three-quarters of the sentence. By s. 37(4), a person released on licence is required to comply with the provisions of his licence, including an obligation as to supervision by a probation officer, as may be specified in the licence.
5. Section 38 of the Act, in its original form, provided that a short term prisoner who was released on licence under the Act and who failed to comply with any of the conditions of his licence was liable on conviction to a fine on level 3 on the standard scale. Whether or not subjected to any other penalty a magistrates' court before which a person was so convicted had power to suspend the licence for a period up to six months and order him to be returned to prison for the period of the suspension of the licence. Under s. 103(2) of the Act of 1998, s. 38 of the Act of 1991 ceased to be of any effect. Thus, there was apparently removed, from the statutory scheme relating to short term prisoners on release, the element of the commission of a crime consequent on a failure to comply with the provisions of the licence. The effect of this change was to assimilate the position of short term prisoners released on licence with that of long term prisoners so that both are provided for under the provisions of s. 39 of the Act of 1991. It is to that section, as amended by s. 103(3) of the Act of 1998, that it is now necessary to refer.
6. Section 39 now applies to short term as well as to the long term prisoners to which alone, for present purposes, it formerly used to apply. The consequence so far as the present case is concerned is that by subs(2) the Secretary of State is, in the defined circumstances, empowered to revoke a licence and order the recall to prison of any prisoner without the recommendation of the Parole Board. Subsection (3) enables a person so recalled to make written representations and gives him an entitlement to reasons for his recall. Subsection (4) requires the Secretary of State to refer to the Parole Board the case of a person recalled either by the Secretary of State of his own initiative, subs(2), or on the recommendation of the Board, subs(1), who makes representations about his recall under subs(3). The section then provides that
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(5) Where on a reference under subs(4) above the Board...
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