The Queen (on the application of Shimei Youngsam) v The Parole Board
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies DBE,Lord Justice Haddon-Cave,Lord Justice Leggatt |
| Judgment Date | 27 February 2019 |
| Neutral Citation | [2019] EWCA Civ 229 |
| Docket Number | Case No: C1/2017/1180 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 2019 |
and
[2019] EWCA Civ 229
Lord Justice Leggatt
Lord Justice Haddon-Cave
and
Lady Justice Nicola Davies DBE
Case No: C1/2017/1180
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE TURNER
Royal Courts of Justice
Strand, London, WC2A 2LL
Nick Armstrong (instructed by Bhatt Murphy Solicitors) for the Appellant
Tim Buley (instructed by Government Legal Department) for the Respondent
David Lowe (instructed by Government Legal Department) for the Interested Party
Hearing date: 13 December 2018
Approved Judgment
This is an appeal from the decision of Turner J who concluded that article 5(4) of the European Convention on Human Rights (“ECHR”) did not apply to the recall from parole licence of determinate sentence prisoners. The judge also found that there was no breach of the common law duty of the Parole Board to make decisions concerning the liberty of offenders without undue delay. Permission to appeal was granted by the single judge.
The primary legal issue in this appeal is whether article 5(4) of the ECHR applies to determinate sentence prisoners who are recalled to prison following release on parole licence. A further ground of appeal challenges the judge's factual conclusion that there had not been unlawful delay, at common law or pursuant to article 5(4), in listing the appellant's Parole Board recall hearing.
Background facts
On 18 January 2002 the appellant was sentenced to a determinate sentence of 18 years for the offence of attempted murder. The appellant was released on licence on 28 March 2013. He was recalled to custody on 3 July 2013 following his arrest for breach of conditions of his licence. On 2 September 2014 he was again released on licence. On 28 May 2015 the appellant was recalled following an incident the previous day in which he was shot when inside the area of Brent, an exclusion zone under the terms of his licence.
On 3 July 2015 the respondent received an initial referral from the interested party. It was passed for a Member Case Assessment (“MCA”). On 7 July 2015 a member of the Board made a direction for no release. The parties were notified on 11 July 2015. On 12 July 2015 the appellant's solicitors asked for the case to be re-referred on the basis that their representations had not been available to the Board when the case was initially considered for MCA. The case was re-referred and on 21 July 2015 the MCA directed that an oral hearing should take place. On 27 July 2015 the respondent sent an email to various parties which did not include the appellant's solicitors, it stated that:
“Mr Youngsam's parole review will shortly be submitted for listing at an oral hearing.
The Parole Board now urgently needs to receive witness non-availability dates to ensure that the case is listed on a day when all witnesses can attend.
Can the following witnesses reply to this email providing dates that they are NOT available to attend an oral hearing between November 2015-January 2016…
All non-availability dates must be provided by 03 August 2015.”
On 28 July 2015 the Offender Manager (“OM”) informed the respondent that she was due to have surgery later that year but had not been given a date. In a reply of the same day the respondent asked the OM to provide details of the probation officer who would stand in for her should she be unable to attend the hearing. No reply was received. On 14 September 2015 the respondent chased the lack of response. On 16 September 2015 the OM replied stating that she would not be available until mid-January 2016. On 10 November 2015 the parties were notified of the oral hearing date, namely 25 January 2016. On 12 January 2016 the respondent received an email from the Probation Service advising that the allocated OM was on long-term sick leave but that a new OM had been appointed. At the hearing on 25 January 2016 the OM did not attend nor was a written report filed. As a result the Panel adjourned the hearing to 8 February 2016. As a result of further developments, adjournments occurred with the result that the hearing was not held until 16 June 2016. The result of the hearing was that the respondent made no direction for the release of the appellant.
Grounds of appeal 1 and 2
The essence of the appellant's argument is that the opinion of the majority of the Supreme Court in Whiston v Secretary of State for Justice [2015] AC 176, namely that article 5(4) did not apply to the recall from parole licence of determinate sentence prisoners, was obiter. This is said to conflict with the binding ratio of Smith v West [2005] 1 WLR 350 in which the House of Lords held that article 5(4) did apply to such recall. Turner J held that the statement of principle articulated by Lord Neuberger in Whiston as to the scope of article 5(4) was strictly speaking obiter but was intended to and should be followed by all courts of inferior jurisdiction. The appellant submits that the judge correctly found the statement of principle to be obiter but erred in stating that it should be followed by courts of inferior jurisdiction. It is the respondent's case that the judge erred in finding the statement of principle to be obiter: it contends that the reasoning represented the ratio decidendi of the case.
The facts of Whiston can be summarised as follows: the appellant was serving a sentence of 18 months' imprisonment. He was entitled to be released on licence having served half of his sentence. After he had served four and a half months of his sentence the Secretary of State released him on licence pursuant to section 246 of the Criminal Justice Act 2003 (“the 2003 Act”), pursuant to the Home Detention Curfew Scheme under which a prisoner could be released during the custodial period of his sentence. Some six weeks later the Secretary of State recalled the appellant to prison under section 255(1) of the 2003 Act on the ground that his whereabouts could no longer be electronically monitored at the place specified in the curfew conditions in his licence. The appellant sought judicial review of the decision on the grounds that since the exercise by the Secretary of State of the power to recall a prisoner under section 255 could not be reviewed by the Parole Board or any other judicial body, the decision to do so had breached his right to take proceedings to challenge the lawfulness of his detention under article 5(4) of the ECHR.
The claim was dismissed by the judge and by the Court of Appeal, it being held that section 255 of the 2003 Act did not engage article 5(4) since the lawfulness of the prisoner's detention had been determined by the original sentence. The Supreme Court, Baroness Hale dissenting in part, held that in accordance with the jurisprudence of the ECHR once a person had been lawfully sentenced by a competent court to a determinate term of imprisonment he could not, in the absence of unusual circumstances, challenge his loss of liberty during that term on the ground that it infringed article 5(4) of the ECHR. The reason being that for the duration of the sentence period, the lawfulness of the prisoner's detention had been decided by the court which had sentenced him to that term, so that he had already been deprived of his liberty in a way permitted by article 5(1)(a) for the term of the sentence. The notion that article 5(4) was satisfied by the original sentence was entirely principled and that accordingly when a prisoner who is serving a determinate sentence had been released on licence and was later recalled to prison during that sentence, article 5(4) did not apply.
The judgments in Whiston
Lord Neuberger PSC gave the judgment dismissing the appeal, with which Lord Kerr, Lord Carnwath and Lord Hughes JJSC agreed. Baroness Hale DPSC (as she then was) agreed that the appeal should be dismissed but stated that she wished to “sound a note of caution” about some of the reasoning which led Lord Neuberger to reach his conclusion.
At [2] Lord Neuberger identified the question and the issue raised by the appeal as follows:
“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)”
At [15–16] the relevant provisions were identified:
“15. Article 5(1)(a) of the Convention provides 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 … .’
16. 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.’”
Lord Neuberger reviewed the Strasbourg jurisprudence in respect of article 5(4), within which it has been established that article 5(4) applies to the release on licence of a prisoner who is subject to an indeterminate sentence of imprisonment, the reasoning being that an indeterminate sentence does not fix the term of years that a prisoner must stay in prison once their tariff or minimum period has expired. As to whether article 5(4) applies to determinate sentence prisoners following release on licence, the authorities of Ganusauskas v Lithuania [1999]...
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