European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Wayne BLACK v the United Kingdom - 37685/09 [2011] ECHR 1312 (12 September 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1312.html
Cite as: [2011] ECHR 1312
[New search] [Contents list] [Printable RTF version] [Help]
FOURTH SECTION
Application no.
37685/09
by Wayne BLACK
against the United
Kingdom
lodged on 6 July 2009
STATEMENT OF FACTS
THE FACTS
1. The applicant, Mr. Wayne Black, is a British and Irish national who was born in 1967 and at the time of the lodging of his application was detained at HM Prison Wakefield. He is represented before the Court by Mr S. Creighton of Bhatt Murphy Solicitors, a firm of solicitors based in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background facts
3. On 26 July 1995 the applicant was sentenced to twenty years’ imprisonment for kidnapping, robbery, conspiracy to kidnap and having a firearm with intent to commit an indictable offence.
4. On 8 January 1996 he was sentenced to a further four years’ imprisonment for escaping from lawful custody and assault with intent to resist apprehension, to run consecutively with the twenty-year sentence. He was therefore effectively serving a determinate sentence of twenty-four years. He became eligible for parole on 30 June 2006.
5. Shortly before his parole eligibility date, the applicant had his suitability for release on parole licence considered by the Parole Board on 2 May 2006, after he had served half of his sentence. The Parole Board recommended the applicant’s release on parole on the basis that the risk to the public had been reduced and that a highly supportive release arrangement was an appropriate way to manage the difficult transition from secure prison conditions to release.
6. Under the legislation in force at the time, the final decision on early release in cases involving prisoners serving determinate sentences (i.e. fixed-term sentences) of more than fifteen years’ imprisonment lay with the Secretary of State (see “Relevant domestic law and practice”, below). For prisoners serving determinate sentences of less than fifteen years and for prisoners serving indeterminate (i.e. life) sentences, the approval of the Secretary of State following a positive recommendation of the Parole Board was not required.
7. On 29 August 2006 the Secretary of State rejected the recommendation of the Parole Board in the applicant’s case, concluding that the risk that the applicant would re-offend was too high to permit early release. As a result, the applicant was not released.
8. On 13 December 2006 the House of Lords unanimously dismissed the appeal of a prisoner in a similar situation as the applicant, in respect of whom the Secretary of State had refused to approve release following a positive recommendation of the Parole Board (R (Clift) v. Secretary of State for the Home Department [2006] UKHL 54). In that case, the prisoner had argued that there had been a violation of Article 14 taken together with Article 5 of the Convention in his case.
2. The domestic proceedings
(a) Proceedings before the High Court
9. On 26 January 2007, the applicant was granted leave to bring judicial review proceedings in respect of the Secretary of State’s decision to reject the Parole Board’s advice and to refuse to release him on licence. His principal ground of challenge was that Article 5 § 4 of the Convention applied to cases where determinate sentences had been imposed and that, as a consequence, early release in such cases should be determined by a judicial body independent of the executive. Accordingly, in the applicant’s submission, the decision of the Secretary of State in his case to refuse him early release amounted to a violation of Article 5 § 4 of the Convention.
10. On 12 July 2007, the High Court dismissed the applicant’s claim. The judge held that Article 5 § 4 did not have direct application to early release provisions in relation to a determinate sentence such that the involvement of the Secretary of State would be impermissible. The applicant was granted permission to appeal on this point.
(b) Court of Appeal proceedings
11. On 15 April 2008 the Court of Appeal handed down its judgment in the appeal. Although it dismissed the applicant’s appeal because the procedure in his case complied with domestic law, the court upheld the applicant’s arguments under Article 5 § 4 and made a declaration of incompatibility in respect of the impugned legislation.
12. Lord Justice Latham, with whom the other judges agreed, noted:
“I have come to the conclusion that [the relevant legislation], as applied to those serving 15 years or more ..., provides for a procedure that does not comply with the requirements of Article 5 (4). It leaves the decision as to release in the hands of the executive, and is therefore capable of being applied arbitrarily which is the mischief at which Article 5 (4) of the ECHR is directed ...”
(c) Proceedings before the House of Lords
13. The Secretary of State was granted permission to appeal to the House of Lords.
14. On 21 January 2009 the House of Lords allowed the Secretary of State’s appeal and restored the order of the High Court judge (Lord Phillips of Worth Matravers dissenting).
15. Lord Brown of Eaton-under-Heywood summarised the question before the House as follows:
“59. Are determinate sentence prisoners, once their parole eligibility date arrives, entitled by virtue of article 5(4) of the European Convention on Human Rights to a speedy judicial decision upon the lawfulness of any further period of detention?”
16. Commenting on the arguments advanced by counsel for the applicant, he noted (at paragraphs 78-79):
“... Given ... the critical part played by the parole scheme in determining how long a determinate sentence prisoner will in fact remain in custody, it is not difficult to suggest an equal need to operate that scheme judicially as to have a proper initial sentencing process.
Nor is it difficult to recognise the force of the suggested close analogy between the position of lifers and that of long-term determinate sentence prisoners with regard to release on licence. Assume two defendants convicted of an identical crime, one sentenced to a determinate term of 14 years’ imprisonment, the other (because the judge feels unable to assess his future dangerousness) to a discretionary life sentence with an order ... that the ‘early release provisions’ should apply to him after seven years (half the appropriate notional determinate sentence as routinely now specified ...). The latter, all agree, is entitled at the seven year point to an Article 5(4) compliant decision by the Parole Board which, if favouring release, binds the Secretary of State. Why should that not be so too in the case of the 14-year prisoner who also becomes eligible for parole at the seven year point? Is there not otherwise ... an ‘evident incongruity’ between the two cases? ...”
17. However, while he was broadly sympathetic to the conclusion of the Court of Appeal in the applicant’s case, he reached the conclusion that it was mistaken, noting (at paragraph 81):
“... Article 5(4) cannot be held to apply merely because it would be useful if it did ... There is suggested to be a risk of arbitrariness in the operation of the parole system if the Secretary of State can overrule the Parole Board on the question of risk. But the Secretary of State’s decision is, of course, judicially reviewable and, if found arbitrary or irrational, it will be struck down. There was, indeed, an irrationality challenge in this very case but it failed before the judge and permission to appeal was refused in respect of it. There is nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision, notwithstanding that it involves rejecting another body’s recommendation. In one sense it may be said to be putting the cart before the horse. And, as we said in Clift, it is indefensibly anomalous. But it is not contrary to Article 5(4).”
18. Indeed, in Lord Brown’s view, there was no need for the Parole Board to have been involved in the process at all as, under the Convention, a State could leave the entire question of release solely to the executive. He continued (at paragraphs 82-83):
“Does then the fact that the United Kingdom has chosen to give the Parole Board a role in the process and statutory directions as to how to approach that role, and has chosen to fix precisely the period within a determinate sentence during which the prisoner is to be considered for parole ... mean that Article 5(4) is necessarily thereby engaged so that the board’s decision must be final?
In my judgment not. The essential contrast struck by the European court is between on the one hand ‘the administrative implementation of the sentence of the court’, for example decisions regarding ‘early or conditional release from a determinate term of imprisonment’ (para 87 of the court’s judgment in Stafford 35 EHRR 1121 ...), and on the other hand ‘fixing the tariff’ and later determining the length of post-tariff detention in life sentence cases. The administrative implementation of determinate sentences does not engage Article 5(4); the decision when to release a prisoner subject to an indeterminate sentence does.”
19. Considering the Court’s case-law, he concluded:
“In the final analysis, it seems to me one thing to say that ‘new issues affecting the lawfulness of the detention’ (Strasbourg’s core and oft repeated touchstone for determining when Article 5(4) is engaged) arise when assessing dangerousness in the post-tariff period of a life sentence (there being otherwise no finite end to a term which, everyone agrees, in the great majority of cases was never meant to last for life); quite another to apply the same approach to the release of determinate sentence prisoners.
Certainly nothing in the Strasbourg jurisprudence affords any support for [counsel for the applicant’s contention that the two categories should be assimilated and, even were I to conclude that the European court might now be prepared, notwithstanding its earlier dicta and admissibility decisions on the point, to extend the reach of Article 5(4) to encompass also determinate sentence prisoners once they become eligible for parole, I would feel bound ... to leave any such development to the European court itself.”
20. Agreeing with Lord Brown, Lord Rodger further commented (at paragraphs 46-47)
“... [F]ailing any fresh development which might make his detention unlawful, Mr Black’s Article 5(4) Convention right to have the lawfulness of his detention after conviction decided by a court was satisfied by the original sentencing procedures.
Is the mere fact that he has reached the halfway stage in his sentences a fresh development which might make his detention unlawful? Plainly not: his detention would not be unlawful after the halfway point and before the two-thirds point, unless the Secretary of State had ordered his release ... and he remained in custody. In fact, however, the Secretary of State has decided that he should not be released. So he remains detained in terms of the original lawful sentences and has no right to be set free ...”
21. He concluded (at paragraph 50):
“The Secretary of State for Justice wins. But, like Lord Brown, I find it hard to understand why he should wish to cling tenaciously to this last vestige of his power to determine when prisoners should be released, since he accepts that there can be no legitimate political input into the decision. The obvious thing would be for the Parole Board to decide when this small group of prisoners, which includes Mr Black, should be released – in the same way as it decides when other long-term prisoners are to be released.”
22. Lord Carswell also agreed with Lord Brown, but added (at paragraph 58):
“I have referred to the anomaly constituted by the retention by the Secretary of State of the power to reject a recommendation for release made by the Parole Board. There appears to be no good reason for its retention and it may well be that the Secretary of State will now think it right to relinquish it. There is also strength in the argument that it is a fresh issue in the penal process, which is sufficient to break the link with the original sentence of imprisonment pronounced by the court. It does appear, however, from my consideration of the Strasbourg jurisprudence that the current of authority is against the respondent and in favour of the Secretary of State on this question. I do have some reservations, appreciating as I do the force of the considerations which prevailed with the Court of Appeal. On balance, however, I think that our courts should be slow to go beyond what the European court has held and decide that the final decision on release cannot lawfully be left with the Secretary of State. For these reasons I would agree, though not without hesitation, that the appeal should be allowed and the respondent’s application for judicial review should be dismissed.”
23. Lord Phillips, however, was of the view that the regime for early release in cases such as the applicant’s was incompatible with the Convention. He noted at the outset (paragraph 16):
“It has long been part of the English sentencing regime that when a judge sentences a defendant to a determinate sentence of imprisonment there neither is nor is intended to be any expectation on the part of the sentencing judge or the prisoner that the prisoner will serve in prison the whole of the sentence imposed. It is part of our penal policy that, in normal circumstances, prisoners should be released on licence before they have served the full term of their sentences. This implication of our sentencing regime is something that the judge is required to explain when he imposes a sentence of imprisonment. Furthermore, when a judge imposes a determinate sentence he does not do so on the basis that the seriousness of the offences requires that the prisoner should be detained for the full period of the sentence. Rather he has regard to the penal effect of the sentence as a whole, having regard to the fact that part of it is likely to be served under release on licence ...”
24. He continued (at paragraph 18):
“In these circumstances it cannot be suggested that the imposition of a determinate sentence renders the detention of the defendant lawful for the full period of the sentence. It will provide the legal foundation for detention during the term of the sentence provided that other conditions, such as those governing recall of a defendant released on licence, are satisfied. The law provides, however, circumstances in which a person sentenced to a determinate sentence is entitled to be released. Article 5.4 must apply so as to enable him to seek a determination of whether those conditions are satisfied should this be in issue.”
25. Considering the approach of Lord Bingham of Cornhill to the applicability of Article 5 in the case of Clift, Lord Phillips observed (at paragraphs 32-34):
“... The critical question is the point at which the detention of a prisoner becomes, or may have become, unlawful under domestic law. It is at that point that Article 5(1)(a) may no longer provide justification for the prisoner’s detention and Article 5(4) entitles the prisoner to a judicial challenge of the lawfulness of his continued detention. For most determinate prisoners it is the half way point. That is the point at which they are automatically entitled to release. Article 5(4) applies at that point. It is, of course, satisfied by the right to seek judicial review for the issue of whether the prisoner is entitled to release is cut and dried and can readily be ascertained by that process.
What of those determinate prisoners whose release depends upon the decision of the Parole Board? I consider that our domestic law entitles them to release provided that the criteria for their release are satisfied. Article 5(4) entitles them to judicial determination of that question and timely consideration by the Parole Board will satisfy the requirements of Article 5(4) ...
What then of the dwindling number of long term prisoners, such as Mr Clift and the respondent? I consider that they also have a right to release provided that the relevant criteria are satisfied and that Article 5(4) applies to that right ...”
26. Lord Phillips concluded (at paragraph 36):
“Accordingly I conclude that there are justiciable criteria that govern whether a prisoner should be granted release on licence once he is eligible to be considered for this. I would hold that that dwindling category of prisoners of which the respondent is one is entitled under section 35(1) of the 1991 Act to release on licence after serving one half of the sentence provided that the criteria are satisfied. It may be that article 5 does not require our domestic law to provide that the initial decision whether or not to release a prisoner on licence must be made by a court. Arguably it could provide for the Secretary of State to make the decision provided that this remained open to review by a court that satisfied the requirements of article 5.4. The Parole Board is the tribunal that is best placed to satisfy those requirements. Inasmuch as section 35(1) of the 1991 Act requires the Parole Board to make its decision first and then permits the Secretary of State to take a different decision it places the cart before the horse. This is contrary to the requirements of article 5.4. For this reason I would reject this appeal and endorse the declaration of incompatibility that has been made by the Court of Appeal.”
3. The applicant’s release
27. The applicant became entitled to release on parole, having served two thirds of his sentence, on 30 June 2010. It is not known whether he has now been released.
B. Relevant domestic law and practice
1. The historical position on release on parole
28. Under sections 59-61 of the Criminal Justice Act 1967, all determinate and indeterminate sentence prisoners were eligible for discretionary release on licence after serving specified minimum amounts of their sentences. In both cases, once the Parole Board had recommended release, the Secretary of State had discretion to decide whether to release a prisoner.
2. The position on release on parole at the relevant time
29. The law regarding release of prisoners on parole was subsequently changed by the Criminal Justice Act 1991 (“the 1991 Act”) and the Crime (Sentences) Act 1997 (“the 1997 Act”), as amended.
30. Section 32 provides that the Parole Board shall advise the Secretary of State with respect to any matter referred to it which is connected with the early release or recall of prisoners.
31. Sections 33 and 34 of the 1991 Act created a duty to release fixed term and discretionary life prisoners once they had served a specified period of detention. Section 33 provided, in so far as relevant, as follows:
“Duty to release short-term and long-term prisoners
(1) As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State—
(a) to release him unconditionally if that sentence is for a term of less than twelve months; and
(b) to release him on licence if that sentence is for a term of twelve months or more.
(2) As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence.
...
32. Section 33(5) defined “short-term” and “long-term” prisoners:
“In this Part—
‘long-term prisoner’ means a person serving a sentence of imprisonment for a term of four years or more;
‘short-term prisoner’ means a person serving a sentence of imprisonment for a term of less than four years.”
33. Section 34 dealt with the early release of discretionary life prisoners:
“Duty to release discretionary life prisoners
(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if—
(a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and
(b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order.
...
(3) As soon as, in the case of a discretionary life prisoner—
(a) he has served the part of his sentence specified in the order ...; and
(b) the [Parole] Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.”
34. Section 35 provided for an additional discretionary power to release long-term prisoners before the two-thirds point of their sentence and provided that:
“(1) After a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence.”
35. Section 50 provided a power for the Secretary of State to reduce the period of detention which had to be served before long-term prisoners became entitled to release upon a recommendation of the Parole Board by converting his discretionary power set out in section 35 into a duty in relation to a specified class of prisoners. It provided that:
“(1) The Secretary of State, after consultation with the [Parole] Board, may by order made by statutory instrument provide that, in relation to such class of case as may be specified in the order, the provisions of this Part specified in subsections (2) to (4) below shall have effect subject to the modifications so specified.
(2) In section 35 above, in subsection (1) for the word ‘may’ there shall be substituted the word ‘shall’ ...”
36. The Secretary of State exercised the power provided to him under section 50 of the 1991 Act on two occasions. Under the Parole Board (Transfer of Functions) Order 1992 his section 35 discretion to release long term prisoners serving a sentence of imprisonment for a term of less than seven years was transformed into a duty. The subsequent Parole Board (Transfer of Functions) Order 1998 transformed the discretion into a duty for prisoners serving a sentence of imprisonment for a term of less than fifteen years. For those serving sentences of fifteen years or more, the Secretary of State retained his discretion to order early release after the half way point and before two-thirds of the sentence had been served.
37. Section 28 of the 1997 Act was originally enacted and later amended following judgments of this Court in Hussain v. the United Kingdom, 21 February 1996, Reports of Judgments and Decisions 1996 I and Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002 IV. It provides, insofar as relevant:
“28. Duty to release certain life prisoners
(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made and any reference in this section to the relevant part of such a prisoner’s sentence is a reference to the part of the sentence specified in the order.
...
(5) As soon as–
(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and
(b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless–
(a) the Secretary of State has referred the prisoner’s case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
38. Section 34 sets out the definition of “life prisoner”, which covers prisoners serving various different types of indeterminate sentence.
3. Subsequent changes to the early release provisions
39. The law regarding the early release of long-term determinate prisoners was amended by the Criminal Justice Act 2003, which entered into force on 4 April 2005. The new provisions regarding release on licence provide, insofar as relevant, as follows:
“244 (1) As soon as a fixed-term prisoner ... has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.
...
(3) In this section ‘the requisite custodial period’ means—
(a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more ... one-half of his sentence ...”
40. The above provisions apply to prisoners who committed their offences after 3 April 2005 or whose parole eligibility date fell after 8 June 2008 and whose offence was not a specified violent or sexual offence.
41. Section 145 of the Coroners and Justice Act 2009 further amended the law on early release to remove the difference in treatment of prisoners depending on their conviction or parole eligibility dates. It amended section 35 of the 1991 Act to provide for a duty, instead of a discretion, on the Secretary of State to release all long-term prisoners upon a recommendation from the Parole Board.
42. Now only prisoners serving life sentences with whole life tariffs require the approval of the Secretary of State for early release. For all other prisoners, early release is either automatic or automatic upon a recommendation of the Parole Board.
COMPLAINT
The applicant complains under Article 5 § 4 of the Convention that he has not had the lawfulness of his detention determined by a court as a result of the Secretary of State’s decision to reject the recommendation of the Parole Board that he should be released on licence.
QUESTIONS TO THE PARTIES
1. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?