R (Whiston) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Patten,Lord Justice Pill |
| Judgment Date | 25 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1374 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 October 2012 |
| Docket Number | Case No: C1/2011/1530/QBACF and C1/2011/1530(A)/FC3,C1/2011/1530/QBACF and C1/2011/1530(A)/FC3 |
[2012] EWCA Civ 1374
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
THE HON MR JUSTICE WALKER
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Elias
and
Lord Justice Patten
Case No: C1/2011/1530/QBACF and C1/2011/1530(A)/FC3
Case No: CO/3808/11
Mr Hugh Southey QC (instructed by Chivers Solicitors) for the Appellant
Ms Nathalie Lieven QC (instructed by Treasury Solicitor) for the Respondent
Hearing date : 24 July 2012
This case raises the question whether the revocation by the Secretary of State of a decision to release a prisoner on licence pursuant to the home detention curfew scheme is compatible with Article 5(4) of the European Convention on Human Rights. This is one of a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage that Article. Problems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
The statutory regime.
Prisoners who are subject to a determinate prison sentence may be released under two different kinds of licence. For sentences of twelve months or more, they have the right to be released on licence after having served half that sentence: see section 244 of the Criminal Justice Act 2003 ("the 2003 Act"). This portion of his sentence, which by section 244(3) is termed the "custodial term", has to be served by the prisoner before he is entitled to be released on licence.
However, sometimes prisoners may also be released on licence even during the custodial term. This power is conferred by section 246 of the Act which, so far as is relevant, is in the following terms:
(1) Subject to sub-sections (2) to (4), the Secretary of State may—
(a) release on licence under this section a fixed-term prisoner, other than an intermittent custody 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….
(2) Sub-section (1)(a) does not apply in relation to a prisoner unless—
(a) the length of the requisite custodial period is at least 6 weeks, and
(b) he has served—
(i) at least 4 weeks of that period, and
(ii) at least one-half of that period.
Section 250(5) provides that the licence pursuant to section 246 must be subject to a curfew condition in accordance with section 253 which, ignoring exceptions and points of detail, is as follows:
" (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 (excluding for this purpose the first and last days of the period for which the condition is in force).
(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"
As sub-section (3) makes plain, the curfew condition cannot be made to operate beyond the period of the custodial term when the prisoner would in any event be entitled to be released. Typically the place specified in the licence is a person's home; hence the reason why the scheme is known as the "home detention curfew scheme".
Under section 249 a licence, whether pursuant to section 244 or 246, remains in place until the end of the determinate period of the sentence unless before then the licence is revoked and the prisoner recalled. However, any home detention curfew provisions only remain in place until the end of the custodial period. (Prisoners sentenced to fewer than twelve months will be released unconditionally at the half-way point and will not thereafter be subject to any licence.)
The Secretary of State may revoke a licence and recall the prisoner pursuant to two different statutory provisions. First, section 254 gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. If that power is exercised it must be considered by the Parole Board who will determine whether the recall should be confirmed.
Second, section 255 confers a specific power on the Secretary of State to revoke a section 246 licence. However, that power can only be exercised whilst the curfew condition is in force, which means until the point when the prisoner would have been entitled to be let out on licence as of right. Thereafter, the licence has to be revoked under section 254. There is no review of the section 255 power by the Parole Board, although there are certain procedural safeguards afforded to the recalled party. The section, so far as is material, is as follows:—
" Recall of prisoners released early under section 246
(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."
Accordingly a prisoner can be recalled under section 255 even where 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.
The short point raised in this appeal is whether the 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.
Article 5(1)(a) of the Convention is as follows:—
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; …"
Article 5(4) states:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
There is an obvious inter-relationship between these two provisions. Article 5(1) recognises the right to liberty; Article 5(4) confers an associated right on any person who is detained to challenge the legality of the detention and have that question determined by a body sufficiently judicial in character.
There are two decisions of the High Court which have concluded that the section 255 revocation does not involve a deprivation of liberty so as to engage Article 5(4). These cases are R (McAlinden) v Secretary of State for Justice [2010] HWC 1557 a decision of Judge Milwyn Jarman QC, sitting as a Deputy High Court judge, who in turn followed the decision of Collins J in R (Benson) v Secretary of State for Justice [2007] EWHC Admin 2055. Permission was given to appeal to the Court of Appeal in the former case but the applicant died and the appeal was not pursued.
The current appeal is from the order of Mr Justice Walker who, in view of the earlier two cases of the High Court and with the consent of the parties, rejected the application without a hearing and granted leave to appeal to this court.
The facts.
The facts can be very shortly stated. The appellant was sentenced to 18 months' imprisonment for robbery on 5 October 2010. He was released on home detention curfew pursuant to section 246 on 21 February 2011. His date for automatic release after serving half his sentence was 5 July 2011
Release on home detention curfew therefore took place within the custodial part of his sentence, as it necessarily must do. He was recalled to prison on 7 April 2011 because his whereabouts could no longer be monitored in the community. The custodial period still had almost three months to run. The decision to revoke was taken by the Secretary of State alone, pursuant to section 255, without any judicial supervision.
The legal context.
In R (Giles) v Parole Board [2004] 1 AC 1 Lord Bingham described the core rights which Article 5 is designed to protect in the following terms:
"Its primary target is deprivation of liberty which is arbitrary or directed or controlled by the executive."
Plainly, where a person is detained in prison pursuant to a determinate custodial sentence imposed by a court, it would be absurd if that sentence had to be periodically reviewed. There is no obligation on the state to provide a further level of judicial supervision. Provided the justification for the detention lies in the original sentencing decision, the detention will not infringe Article 5.
Lord Hope confirmed this principle in the Giles case. After considering two Strasbourg decisions, E v Norway (1990) 17 EHRR 30 and Van Droogonbroeck v Belgium (1982) 4 EHRR 443, he continued (para 40):
"The important point which emerges from these two decisions for present purposes is that a distinction is drawn between...
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