The Queen (on the application of Paul McAtee) v The Secretary of State for Justice

JurisdictionEngland & Wales
JudgeLord Justice Davis,Sir Brian Leveson P,Lord Justice Lewison
Judgment Date20 December 2018
Neutral Citation[2018] EWCA Civ 2851
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2016/4712
Date20 December 2018

[2018] EWCA Civ 2851

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE DIVISIONAL COURT

Lord Justice Fulford and Mr Justice Blake

CO/4522/2013

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION

( Sir Brian Leveson)

Lord Justice Davis

and

Lord Justice Lewison

Case No: C1/2016/4712

Between:
The Queen (on the application of Paul McAtee)
Applicant
and
The Secretary of State for Justice
Respondent

Hugh Southey QC and Nick Armstrong (instructed by Stephensons Solicitors) for the Applicant

Catherine Callaghan QC (instructed by GLD) for the Respondent

Hearing date: 28 November 2018

Approved Judgment

Lord Justice Lewison

Sir Brian Leveson P, Lord Justice Davis and

1

It has long been well known that, by reason of the provisions of s. 18(1) of the Senior Courts Act 1981, this court has no jurisdiction to entertain an appeal from a judgment of the High Court “in a criminal cause or matter”. These applications raise such a question and have to be considered in the light of the recent decision of the Supreme Court in R (Belhaj) v Director of Public Prosecutions (No. 1) [2018] 3 WLR 435. This is the judgment of the court.

Background

2

In addition to the question of jurisdiction, the background to these applications itself gives rise to significant procedural complexity, the starting point being an application for judicial review brought not by this applicant but by Jeffrey Lee.

3

In short, on 13 April 2005, at the home of his former wife and in the presence of his young children, Jeffrey Lee committed an offence of burglary with intent to commit criminal damage. He was said to be in a drunken rage. Having a number of previous convictions for offences of violence, including assault occasioning actual bodily harm and criminal damage, on 2 September 2005, at Bolton Crown Court, he was sentenced to imprisonment for public protection (“IPP”) under s. 225 of the Criminal Justice Act 2003 (which had come into force very shortly before he committed this offence). The minimum term specified was 9 months imprisonment less time spent on remand. The tariff expired on 12 January 2006.

4

Section 225 of the 2003 Act (as it then stood) provided as follows in the relevant respects:

“Life sentence or imprisonment for public protection for serious offences for serious offences

(1) This section applies where—

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2) If —

(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life.

the court must impose a sentence of imprisonment for life.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.

(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) as to the release of prisoners and duration of licences….”

It was common ground that Mr Lee had committed a serious offence for the purpose of the statutory provisions; and the sentencing judge found that he posed a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

5

Although eligible for release on 12 January 2006, it was only over five years later, on 25 July 2011, that the Parole Board concluded that he no longer posed a risk to the public and directed his release on licence. In the meantime, with others, he had engaged in litigation challenging the lawfulness of his continued imprisonment. This was on the basis that he had not been afforded the opportunity of access to courses that might, if successfully undertaken, help persuade the Parole Board of his reduced dangerousness and thus secure his release on licence. The claim failed in the House of Lords but succeeded in the European Court of Human Rights: see R (James and others) v Secretary of State for Justice [2010] 1 AC 553 and James, Lee and Wells v United Kingdom [2012] ECHR 57877/09.

6

By reason of s. 225(4) of the 2003 Act, a sentence of IPP was an indeterminate sentence. Thus, following his release on licence on 25 July 2011, Mr Lee was subject to the relevant provisions of the Crime (Sentences) Act 1997 and, in particular, s. 31A of that Act which, as originally enacted, provided as follows:

“Imprisonment or detention for public protection: termination of licences

(1) This section applies to a prisoner who —

(a) is serving one or more preventive sentences, and

(b) is not serving any other life sentence.

(2) Where —

(a) the prisoner has been released on licence under this Chapter; and

(b) the qualifying period has expired,

the Secretary of State shall, if directed to do so by the Parole Board, order that the licence is to cease to have effect.

(3) Where —

(a) the prisoner has been released on licence under this Chapter;

(b) the qualifying period has expired; and

(c) if he has made a previous application under this subsection, a period of at least twelve months has expired since the disposal of that application.

the prisoner may make an application to the Parole Board under this subsection.

(4) Where an application is made under subsection (3) above, the Parole Board –

(a) shall, if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force, direct the Secretary of State to make an order that the licence is to cease to have effect;

(b) shall otherwise dismiss the application.

(5) In this section –

“preventive sentence” means a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003 or a sentence of detention for public protection under section 226 of that Act

“the qualifying period”, in relation to a prisoner who has been released on licence, means the period of ten years beginning with the date of his release.”

It thus can be seen that the obligation of the Secretary of State, if so directed by the Parole Board, to order that the licence should cease to have effect could only arise after the expiry of the qualifying period of 10 years.

7

In addition, there was a policy, contained in Prison Service Order 4700, that the supervision element of such a licence could be suspended, following four years' existence in the community without trouble and if certain other conditions were fulfilled. Further, any conditions attached to such licence could be varied on a recommendation of the relevant probation officer and of the Parole Board.

8

Mr Lee was aggrieved that the indeterminate licence period, as laid down by the legislation, entirely precluded the possibility of cancellation of the licence before the expiry of at least 10 years. As a result, on 17 April 2013, he commenced judicial review proceedings.

9

In this regard, it is important to note that, from their inception, sentences of IPP have always been controversial. Substantial amendments were introduced by the Criminal Justice and Immigration Act 2008 (to increase the minimum term that would have to be imposed before the sentence qualified). Ultimately, by s. 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sentences of IPP were abolished. Neither the amendment to nor the abolition of IPP affected the position of Mr Lee.

The Judicial Review proceedings

10

In the claim form issued on 17 April 2013, in which the defendant was the Secretary of State for Justice, the details of the decision to be judicially reviewed, as set out in Section 3 of the claim form, were described as: “The requirement to be subject to an indeterminate licence for a minimum period of ten years without any right of review”. The date of the decision was described in Section 4 of the claim form as “Ongoing”. The relief sought (with ancillary orders) was this:

“A Declaration that in preventing the claimant from applying for his IPP licence to be cancelled until after ten years post-release, s. 31A of the Crime (Sentences) Act 1997 is incompatible with the claimant's Article 8 rights.”

11

Permission to apply having been granted on the papers, the matter came on for decision by a Divisional Court of the High Court comprising Fulford LJ and Blake J, sitting in Manchester. By a full and detailed judgment of the court dated 6 December 2013, [2013] EWHC 4483 (Admin), the claim was dismissed. The court decided that such interference with private and family life as was occasioned by the mandatory ten year licence period was justified and proportionate. It is neither necessary nor appropriate for this court here to engage in any consideration of the merits of that decision.

12

On the same date, the Divisional Court refused an application for permission to appeal to the Court of Appeal. However, on 24 May 2014, Laws LJ granted permission to appeal on the grounds that the points were arguable and merited the attention of this court on appeal. At that stage, no one had adverted to any issue of jurisdiction or to any issue of whether what was involved was a criminal cause or matter.

13

It was at this point that the procedural complexities potentially applicable to this case, over and above the jurisdictional issue, arise. Thus, it was agreed that the appeal of Mr Lee be stayed pending the decision of the Supreme Court in R (Haney) v Secretary of State for Justice [2015] AC 1344 which, although believed likely to...

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