COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION - Administrative Court)
(Mr Justice Turner)
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE SEDLEY
LADY JUSTICE HALE
| THE QUEEN|
(on the application of Justin West)
|- and -|
|THE PAROLE BOARD||Respondent|
(instructed by Messrs Kaim Todner) for the Appellant
Ms K Stern & Jonathan Crow Esq
(instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 7th October 2002
(SUBJECT TO EDITORIAL CORRECTIONS)
Crown Copyright ©
Lord Justice Simon Brown:
"39(1) If recommended to do so by the Board in the case of a short-term or long-term … prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
(3) A person recalled to prison under sub-section (1) or (2) above-
(a) may make representations in writing with respect to his recall; and
(b) on his return to prison shall be informed of the reasons for his recall and of his right to make representations.
(4) The Secretary of State shall refer to the Board-
(a) the case of a person recalled under sub-section (1) above who makes representations under sub-section (3) above; and
(b) the case of a person recalled under sub-section (2) above.
(5) Where on a reference under sub-section (4) above the Board-
(b) recommends in the case of [any short-term or long-term prisoner],
his immediate release on licence under this section, the Secretary of State shall give effect to the … recommendation.
(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
"(i) keep in touch with your supervising officer in accordance with any reasonable instructions
(iii) live where reasonably approved by your supervising officer
(vi) be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community."
"Mr West is assessed as posing a high risk to the public on account of a history of substance misuse/mental disorder and lack of support in the community coupled with a record of violence and self-harm. On release, he went to stay with his father …, in the absence of more suitable provision for his needs. On 14 August, I received a telephone call from Islington Social Services who reported an alleged incident of assault against his former partner and criminal damage by Mr West. The victim did not wish to prosecute and when questioned further neither confirmed nor denied an incident took place. I have today spoken to the manager of the hostel where the incident took place and he confirmed that a door was kicked in which it was suspected was carried out by Justin West who had been observed drinking at the premises. There is no corroborative evidence in view of his partner’s reluctance. They have issued Mr West with a letter expressing concern about his conduct and asking him to stay away from the hostel."
"Since [the early] report, Mr West has not kept his appointment with his supervising officer, Peter Stevens today. Also Mr Stevens has learned from Mr West’s family that they are concerned that he has not been staying regularly at his address and there is some indication that he has returned to using crack. Given the background concerns regarding the risk of violent behaviour by Mr West, I would recommend that the licence be revoked on an urgent basis. The grounds are breach of Condition 5(i) (failure to keep in touch with supervising officer) and 5(vi) (good behaviour)."
"In view of the offences for which you were originally sentenced and your behaviour described above, the Home Secretary is no longer satisfied that is right for you to remain on licence."
"The panel has carefully considered the representations made on behalf Mr West by his solicitors. He has accepted that he missed one appointment and that he kicked a door in at the hostel where his ex-partner was staying. His reasons for his behaviour are noted. However, the panel does not accept his explanations. There were options open to him to deal with the situation properly and effectively. It is noted that he had been seen to be drinking at the hostel. [He] accepts that he failed to reside at the approved address, albeit on his admission, for one night only. The panel rejects Mr West’s representations. In their view his behaviour, taken as a whole, indicates a poor sense of judgment and a propensity for acting in a way which is incompatible with a continuing licence."
"The Secretary of State may … give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part; and in giving such directions the Secretary of State shall in particular having regard to-
(a) the need to protect the public from serious harm from offenders; and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
"(1) In deciding whether or not to recommend the recall of a short-term prisoner released on licence … or to recommend the immediate release of such a prisoner who has been recalled, the Parole Board shall consider whether the prisoner’s continued liberty or, as the case may be, immediate release, would present an unacceptable risk to the public of further offences being committed.
(2) In considering this issue, the Board shall, in particular, take into account:
(a) whether the prisoner is likely to commit further offences, and
(b) whether the prisoner has failed to comply with one or more of his licence conditions or might be likely to do so in future."
"It is not in dispute between the parties that the Strasbourg case law makes clear that the concept of a ‘criminal charge’ under Article 6 has an ‘autonomous’ Convention meaning: see Engel -v- The Netherlands (No 1) (1976) 1 EHRR 647, 678, para 81. There are effectively three criteria applied by the Strasbourg court in order to determine whether a criminal charge has been imposed: see Engel’s case and, more recently, AP, MP and TP -v- Switzerland (1997) 26 EHRR541, 558, para 39. They are: the classification of the proceedings in domestic law; the nature of the offence; and the nature and degree of severity of the penalty that the person concerned risked incurring. the Strasbourg court does not in practice treat these three requirements as analytically distinct or as a ‘three-stage test’, but as factors together to be weighed in seeking to decide whether, taken cumulatively, the relevant measure should be treated as ‘criminal’. When coming to such a decision in the course of the court’s ‘autonomous’ approach, factors (b) and (c) carry substantially greater weight than factor (a)."
"90 … [T]he ‘right’ to release conferred by s33 of the 1991 Act was itself to be read as subject to any award of additional days [by the prison governor] under s42 of that Act.
91 Accordingly any ‘right’ to release did not arise until the expiry of any additional days awarded under s42. The legal basis for detention during those additional days continues to be therefore the original conviction and sentence. It is noted in this context that those additional days cannot exceed the length of the original sentence. The Court cannot therefore accept the applicants’ argument that the authority of the sentencing court expired on the date to which s33 of the 1991 Act referred.
92 While their detention was thus clearly lawful under domestic law, the fact remains that the applicants were detained in prison beyond the date on which they would otherwise have been released, as a consequence of separate disciplinary proceedings unrelated to the original conviction. The question arises whether the severity of the punishment of additional days of detention, which the applicant risked and which were actually imposed, were such as to render the guarantees of Article 6 applicable to the disciplinary proceedings against them.
95 There belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment or deterrent ‘except those which by their nature, duration or manner of execution cannot be appreciably detrimental’. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person, all require that this should be so (see Engel & Others judgment, para 82, and the Ozturk -v- Germany judgment of 21 February 1984 Series A no 73,para 53).
The presumption is therefore that the charges against the applicants were criminal within the meaning of Article 6, a presumption which can be rebutted exceptionally, and only if the Court can conclude that the additional days’ detention actually imposed on them cannot be considered to be ‘appreciably detrimental’, given their nature, duration or manner of execution."
"It is in our judgment plain that this section [s39 of the Act] is directed to protection of the public against risk. Under subsection (2) the Secretary of State may revoke the licence of a person released on licence and recall that person to prison without a recommendation by the Parole Board only if it appears to be expedient in the public interest to do so before a recommendation of the Parole Board is practicable. Otherwise, his power under the section is dependent on a recommendation by the Board, and even when he acts of his own motion under subsection (2) it is necessary that the matter be referred to the Board. Thus, under either of the available procedures, the Parole Board monitors the propriety of the revocation and the recall. It is not necessary that the person shall have committed, or be suspected of having committed any further offence, for these powers to be invoked. It is no part of the Parole Board’s remit to decide what punishment any defendant should undergo. Its concern is with protection of the public against risk."
"… [T]he sanction - and this the Government did not contest - seeks to punish as well as to deter. It matters little whether the legal provision contravened by Mr Ozturk is aimed at protecting the rights and interests of others or solely at meeting the demands of road traffic. These two ends are not mutually exclusive. Above all the general character of the rule and the purpose of the penalty being both deterrent and punitive, suffice to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature."
"… [T]he decision whether or not to make the order does not depend solely on proof of the defendant’s conduct. The application may only be made if it appears to the local council or the Chief Constable that an order is necessary to protect persons in the area, and consultation between them is required before the application is made. Thus the proceedings are identified from the outset as preventive in character rather than punitive or disciplinary. This is a strong indication that they are not proceedings for the determination of a criminal charge against the defendant. In Lauko -v- Slovakia 33 EHRR 999, 1011, para 58 the Court said that the fine imposed in that case was intended as a punishment to deter re-offending and that it had ‘a punitive character, which is a customary distinguishing feature of criminal penalties.’"
"An anti-social behaviour order may well restrict the freedom of the defendant to do what he wants and to go where he pleases. But these restrictions are imposed for preventive reasons, not as punishment. The test that has to be applied under s1(6) is confined to what is necessary for the purpose of protecting persons from further anti-social acts by the defendant. The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his past conduct. Moreover, while the court may restrict the defendant’s liberty while this is shown to be necessary to protect persons in the area from further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him."
"The Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, are not covered by Article 6(1) of the Convention. They concern neither the determination of ‘a criminal charge’ nor of ‘civil rights and obligations’ within the meaning of this provision …."
"68 The court reiterates that the object and purpose of Article 6 of the Convention taken as a whole show that a person charged with a criminal offence is entitled to take part in the hearing. Moreover, sub-paragraphs (c) and (d) of paragraph 3 guarantee to ‘everyone charged with a criminal offence’ the right ‘the defend himself in person’ and ‘to examine and have examined witnesses’, and it is difficult to see how these rights could be exercised without the person concerned being present …."
"… ‘[A] person charged with a criminal offence’ who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing; if he does not have sufficient means to pay for such assistance, he is entitled under the Convention to be given it free when the interests of justice so require."
"Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer assigned officially if need be, is one of the fundamental features of a fair trial."
Lord Justice Sedley:
Lady Justice Hale: