Neutral Citation No:  [2002] EWCA Civ 1641	Case No:  C/2002/1150/QBACF

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION - Administrative Court)
(Mr Justice Turner)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  13th November 2002

Before:

LORD JUSTICE SIMON BROWN
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE SEDLEY
and 
LADY JUSTICE HALE
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Between:

	THE QUEEN
(on the application of Justin West)	Appellant	
	- and -		
	THE PAROLE BOARD	Respondent	

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Richard Clayton Esq, QC & K Gledhill Esq
(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
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN
(SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Simon Brown:
1.	Do the Parole Board’s decisions under s39(5) of the Criminal Justice Act 1991 as amended (“the Act”), decisions whether to recommend the re-release on licence of determinate sentence prisoners recalled to prison upon the revocation of their licences, involve “the determination of [a] criminal charge” within the meaning of Article 6 of the European Convention on Human Rights?  If so, are such prisoners entitled to an oral hearing with legal representation before the Board?
2.	These are the issues raised on this appeal.  Their importance is obvious.  In the year ending 31 March 2002 the Board considered 516 cases in which determinate sentence prisoners made representations against their recall.  Under the Parole Board’s existing procedures oral hearings in such cases are only very exceptionally allowed.  In that same year, indeed, only one such hearing was held.
3.	The issues being of general application, the particular facts of the present case are of little importance save insofar as they serve to illustrate the arguments arising.  That is particularly so given that this appellant has long since been released from custody and is now no longer subject to further recall so that the appeal is strictly moot.  That notwithstanding, Mr Crow for the Parole Board expressly recognises that the issues raised are of general importance and should be determined.  I will accordingly summarise the facts very briefly indeed.
4.	First, however, it is convenient to set out s39 of the Act insofar as it applies to determinate sentence prisoners:
“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.”
5.	Having been sentenced in October 2000 (following remand in custody) to three years’ imprisonment for affray, the appellant, as a short-term prisoner, was automatically released on licence at the half-way stage of his sentence on 6 August 2001 (see s33(1)(b) of the Act), his licence being expressed to expire, unless previously revoked, when he had served three-quarters of his sentence on 7 May 2002 (see s37(1) of the Act).
6.	The licence conditions (largely in standard form) required the appellant, whilst under supervision, to:
“(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.”
7.	On 16 August 2001, just ten days after the appellant’s release on licence, a senior probation officer reported:
“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.”
8.	That report went to an assistant chief probation officer who on 20 August 2001 wrote:
“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).”
9.	Two days later, on 22 August 2001, the Secretary of State revoked the appellant’s licence pursuant to s39(2) of the Act, stating as his reasons that the appellant had breached conditions 5(i), 5(iii) and 5(vi) of his licence in the ways particularised and concluding:
“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.”
10.	On 24 August 2001, two days after his licence was revoked, the appellant was arrested and returned to prison.  The Secretary of State then referred his case to the Board pursuant to s39(4)(b) of the Act.  On 27 September 2001 the appellant’s solicitors wrote on his behalf making extensive written representations pursuant to s39(3) of the Act as to why he should not have been recalled and urging the Board to hold an urgent oral hearing to be attended by witnesses whose evidence should be heard on oath.
11.	On 2 October 2001 the Parole Board rejected those representations in the following terms:
“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.”
12.	In short, the Board refused to recommend the appellant’s immediate release on licence with the result that he was detained in prison for a further 8½ months until 9 May 2002 (two days being added because of the delay between the revocation of his licence and his arrest and return to prison), and that when he was then released (having served three-quarters of his sentence) his release was not unconditional as otherwise it would have been but conditional pursuant to s32A(3) of the Act.
13.	The initial challenge to that decision, a challenge advanced on substantially wider grounds (including an alleged breach of Article 5) than those now pursued on appeal, was rejected by Turner J on 26 April 2002.
14.	Before turning to the central argument which arises with regard to the application of Article 6, I should refer to one further provision of the Act and to the directions given under it.  Section 32(6) provides:
“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.”
15.	The relevant directions issued by the Secretary of State pursuant to s32(6) with regard to short-term prisoners are these:
“(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.”
16.	That, then, is the background against which to consider the appellant’s central contention that, in deciding whether or not to recommend the re-release of those whose licences have been revoked, the Parole Board are determining criminal charges within the meaning of Article 6 so as to attract the procedural safeguards ordinarily applicable to the fair trial of such charges.
17.	A convenient starting point for considering the rival arguments is paragraph 26 of Potter LJ’s judgment in Han -v- Commissioners of Customs & Excise [2001] 1 WLR 2253, 2260:
“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).”
18.	The first criterion presents no difficulty here:  the recall procedure is clearly not classified as criminal under domestic law.  That, however, is a consideration of relatively little weight;  criteria (b) and (c) are substantially more important.
19.	I come, therefore, to the second criterion, “the nature of the offence” - ie, the nature of the real issue for determination by the Parole Board under s39(5), the use of the term “offence” tending rather to beg the question.  The submission made by Mr Clayton QC for the appellant at the outset of his argument was that Article 6 is only in play if the breach of the licence conditions relied upon by the Secretary of State for the prisoner’s recall in itself involves a criminal offence - for example, on the facts of the present case, the appellant’s alleged breach of condition (vi) by assaulting his ex-partner and kicking (and presumably thereby damaging) a door.  That concession, however, if such it was, was speedily withdrawn.  As the court pointed out, the Secretary of State might well be altogether less concerned about the commission of some minor fresh offence than, say, a sex offender’s persistent failure to keep in touch with his probation officer.  In truth the appellant’s argument must stand or fall by reference to the s39(5) process as a whole and irrespective of the particular grounds of recall.
20.	At the heart of Mr Clayton’s argument (with regard both to the third as well as the second Engel criterion) lies the ECtHR’s recent unanimous decision in Ezeh & Connors -v- United Kingdom (2002) 35 EHRR 691, a decision holding that a prison governor’s determination of disciplinary charges, respectively of making a threat to kill and of assault, resulting in awards respectively of 40 and of 7 additional days’ custody, involved the determination of a “criminal charge” under Article 6.  Paragraphs 90-92 and 95 of the court’s judgment were central to their decision:
“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.”
21.	Essentially, therefore, the court was saying in paragraph 92 with regard to the second Engel criterion that, although the legal basis for detention during the additional days continues to be the original conviction and sentence, detention beyond the prisoner’s otherwise expected release date was “as a consequence of separate disciplinary proceedings unrelated to the original conviction”, and in paragraph 95, with regard to the third Engel criterion, that a presumption exists that all deprivations of liberty (save those not “appreciably detrimental”) imposed as a punishment or deterrent belong to the criminal sphere.
22.	It is Mr Clayton’s submission that a close parallel exists between the circumstances of the present case and those of Ezeh & Connor.  In both cases, he argues, but for a fresh adverse adjudication - there the governor’s award of additional days’ custody in disciplinary proceedings under s42, here the Parole Board’s refusal to recommend re-release on licence under s39(5) - the prisoner’s fixed period of detention would not be extended.  By the same token that the adjudicative process under which additional days are awarded has now been held by the ECtHR - contrary to the Court of Appeal’s ruling in R (Al-Hasan) -v- Home Secretary [2002] 1 WLR 545, a ruling now under appeal to the House of Lords - to be subject to Article 6, so too should be the Parole Board’s process under s39(5).  For good measure, submits Mr Clayton with regard to the third Engel criterion, “the nature and degree of the severity of the penalty” suffered by a prisoner whose recall from licence is confirmed by the Parole Board will not only invariably involve deprivation of liberty but is likely to do so for a substantially longer period than is involved in most disciplinary awards (depending, of course, upon when, relative to the licence expiry date, the prisoner is recalled).
23.	Powerfully though these arguments were advanced and persuasive though at first blush they may appear, to my mind they founder upon the rock on which all of Mr Crow’s submissions ultimately stand:  the critical fact that when a parole licence is revoked and its revocation is subsequently confirmed this is solely with a view to the prevention of risk and the protection of the public and not at all by way of punishment.  That this is so is plain (a) from the wording of the licences themselves (I am not impressed by Mr Clayton’s jury point that the licence  itself refers to the “penalties” for failing to comply with its requirements, namely the liability to have the licence revoked), (b) from s32(6) of the Act and the directions issued under it, and (c) on authority, most notably R -v- Sharkey [2000] 1 Cr App R 409, Akhtar -v- Home Secretary [2001] EWHC Admin 38 and Akhtar -v- Governor of HMP Newhall & Home Secretary [2001] EWHC Admin 175.  Let me cite from just one of those cases, Lord Bingham CJ’s judgment in the Court of Appeal Criminal Division in Sharkey at p412:
“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.”
24.	The purpose for which the power is being exercised is of importance not only when considering the second but also the third of the Engel criteria.  As to the second criterion it is only necessary to refer to Ozturk -v- Germany (1984) 6 EHRR 409 in which the ECtHR characterised as “criminal” minor traffic offences treated under German law as merely “regulatory”, stating in paragraph 53 of its judgment:
“… [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.”
25.	As to the third criterion, although undoubtedly the high point of the appellant’s case, this too in my judgment properly invites consideration of the purpose for which a licence is revoked and the prisoner’s recall confirmed.  That purpose being entirely the prevention of risk, the further detention involved cannot properly be characterised as a sanction or penalty.
26.	Support for this approach is to be found in the recent decision of the House of Lords in R (McCann) -v- Manchester Crown Court [2002] 3 WLR 1313 - with regard to anti-social behaviour orders.  As to the second Engel criterion Lord Hope at paragraph 72 said this:
“… [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.’”
27.	As to the third criterion, Lord Hope said in paragraph 76:
“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.”
28.	I recognise, of course, that the s39 recall process - unlike the process by which anti-social behaviour orders are made - does deprive the offender of his liberty.  In this it is unlike, too, various other processes relied upon by Mr Crow to demonstrate that preventive measures are not regarded, either under domestic law or in Strasbourg, as involving the determination of criminal charges:  the imposition of banning orders under the Football (Spectators) Act 1989 as amended (see Gough -v- Chief Constable of Derbyshire Constabulary [2002] QB 459, affirmed by the Court of Appeal [2002] 3 WLR 289);  the making of sex offender orders under the Crime and Disorder Act 1998 (B -v- Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340);  the confiscation of property belonging to a person suspected of being a member of a Mafia-type organisation (M -v- Italy (1991) 70 DR 59);  and the making of exclusion orders (Maaouia -v- France (2001) 33 EHRR 42).
29.	I accept, therefore, Mr Clayton’s argument that none of these authorities is decisive of the Article 6 issue as it now arises in respect of the recall procedure.  They do, however, emphasise time and again the importance of what the ECtHR in Maaouia called the “essentially preventive nature” of the process in question.  And to my mind they point up the particular features of Ezeh & Connors, which distinguished it from the present case, the bringing there of “separate disciplinary proceedings unrelated to the original conviction” (paragraph 92 of the court’s judgment) and the imposition there of “deprivations of liberty … as a punishment or deterrent” (paragraph 95).
30.	In short, I accept Mr Crow’s core submission that the rationale of prisoner recall is protective and preventive, not punitive and deterrent;  the decision taken (initially by the Secretary of State and then by the Parole Board) is that, having regard to the risk now shown to exist, it is necessary for the protection of the public that the offender serve the balance of his existing sentence (up to the three-quarter stage) in prison rather than on licence, and thereafter be released conditionally instead of unconditionally.  Unlike the position in Ezeh & Connors, the same sentence is being served and it is being served for the same offence.  Ezeh & Connors, indeed, proves on analysis to provide no real help on the issue of classification under Article 6;  all it does is to apply the three part Engel test on its own particular facts.
31.	Before leaving this part of the case I should briefly mention three further authorities relied upon by Mr Crow.  In Kerr -v- United Kingdom (ECHR Application No 44071/98) the ECtHR held that the revocation of a mandatory life prisoner’s licence did not involve the determination of a criminal charge and therefore the complaint based on Article 6 was inadmissible.  The main argument, however, was under Article 5 and, as Mr Clayton observes, the reasoning with regard to Article 6 was exiguous.  In Aldrian -v- Austria (Application No 16266/90) the European Commission of Human Rights rejected as inadmissible a claimed breach of Article 6 based on a court’s refusal to release the complainant prisoner on probation.  Mr Crow relies upon the following passage in the Commission’s judgment:
“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 ….”
32.	It seems to me, however, one thing in the exercise of a discretionary power to refuse a prisoner release on licence;  another, as here, having been compelled by law to release him at the half-way stage of his sentence, then to recall him to prison.  Although, as already indicated, I accept that recall does not involve the determination of a criminal charge, I say nothing as to whether it involves the determination of “civil rights and obligations” (that question not being argued before us).
33.	The third case I should mention is the decision of the Divisional Court (myself and Goldring J) in Banks -v- Home Secretary [2002] EWHC Admin 381 rejecting a renewed application for permission to apply for judicial review in just such a case as the present, an application based principally upon the contention that the s39 recall process is incompatible with Articles 5 and 6 of the Convention.  The argument there before us was altogether less sophisticated than that now advanced and after, as I recall, only a brief hearing I gave what Turner J below rightly described as a “robust” judgment, roundly rejecting it.  I am comforted to find that my reaction to the point then coincides with my conclusion now after fuller argument but I cannot pretend to have gained much if any help from the judgment.  We had, indeed, thought at one stage of the hearing that its citation offended paragraph 6 of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.  Since, however, (a) the application was attended by both parties (although we did not, as I recollect, call on the respondent), (b) it was an application for permission to apply for judicial review rather than an application for permission to appeal, and (c) the decision was that the application was unarguable rather than arguable, somewhat surprisingly the judgment fell into none of the categories specified by paragraph 6.2 of the Direction to be barred from citation.  It has often been said, however, that the court’s observations when refusing renewed applications for permission to apply for judicial review have precious little authority - see, for example, R -v- Home Secretary (ex parte Robinson) [1998] QB 929, 945.
34.	Having regard to my conclusion on the critical first issue, it is strictly unnecessary to decide whether, assuming the Board were determining a criminal charge when exercising their s39(5) power, the recalled offender would be entitled to an oral hearing and, if so, to be legally represented at it.  I shall nevertheless address these questions briefly.
35.	The authorities upon which Mr Clayton principally relies are, as to an oral hearing, Collozza -v- Italy (12 February 1985, Series A No 89) and Zana -v- Turkey (Case No 69/1996/688/880), and as to legal representation, Pakelli -v- Germany (1983) 6 EHRR 1 and Poitrimol -v- France (Case No 39/1992/384/462).  As to an oral hearing I need cite just a single paragraph from Zana:
“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 ….”
36.	As to legal representation, the court in Pakelli at paragraph 31 said this:
“… ‘[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.”
37.	The court in Poitrimol said in paragraph 34 of their judgment:
“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.”
38.	Were the Parole Board to be determining a criminal charge, I find it difficult to see how they could do so without holding an oral hearing.  Ordinarily, moreover, the recalled offender would be entitled to legal representation.  Although the right is “not absolute” and needs only to be afforded “when the interests of justice so require”, most cases would probably attract it.
39.	It follows that the course ordinarily adopted by the Parole Board in the exercise of their s39 powers would in my judgment plainly not satisfy the requirements of Article 6 with regard to the determination of criminal charges.
40.	I add only this.  The Parole Board plainly have power under s32 of the Act to adopt whatever procedures they think necessary.  As stated at the outset of this judgment, the Board last year in fact only convened one oral hearing.  That seems to me somewhat surprising, not least given that in R -v- Parole Board (ex parte Davies) (unreported, CO/1007/96 of 27 November 1996) Collins J quashed a decision of the Board confirming the cancellation of the applicant’s life licence on the ground that their procedures had not fairly enabled them to adjudicate on important allegations of violent behaviour whilst on licence.  In my judgment the Parole Board should be altogether readier than presently they are to hold oral hearings if in truth their determination is likely to turn upon the resolution of important issues of fact.  It is, of course, unnecessary to reach a view as to whether that was so in the circumstances of the present case.  Plainly it will sometimes be so and on those occasions the correct determination may (I do not say invariably, or even generally, will) only be possible following some form of oral hearing albeit not necessarily one attended by the full panoply of procedural safeguards appropriate to a criminal trial.
41.	That, however, is for the future.  For the present I would hold that the Parole Board are not determining a criminal charge when exercising their s39 powers and would accordingly dismiss this appeal.
Lord Justice Sedley:
42.	I have had the advantage of reading in draft the judgments of Simon Brown LJ and Hale LJ.  Both are powerfully persuasive, but my ultimate conclusion is that the exercise of the Parole Board’s power to recall to prison determinate sentence prisoners who have been released on licence is not the determination of a criminal charge against them.  That is the only issue we have been asked to decide.
43.	My reasons correspond with those set out by Simon Brown LJ.  In short, at least under the ministerial guidance in force at the material time, recall is not the addition of a fresh period of imprisonment to one which is now spent;  in the case of a short-term prisoner it results from an assessment of risk to the public in the light of new developments;  in the case of the discretionary release of a long-term prisoner it represents a revision in the light of developments of the Boards’s earlier assessement of risk.  The dramatic impact of the decision of the European Court of Human Rights in Ezeh and Connors -v- United Kingdom comes not from the relatively narrow ground on which it was argued and decided but from the concession made by the United Kingdom in oral argument on a point taken by the Court, that the whole statutory system by which an official (the prison governor) is permitted to impose a fresh term of imprisonment against which no appeal lies offends against the Convention’s requirement of an independent and impartial tribunal:  see paragraph 53 of the judgment.  For the rest, I agree with Simon Brown LJ that the decision does not resolve the case before us.  The fact that the grounds for recall may reflect fresh criminality does not by itself make the process a criminal one, any more than it does in a civil action where the tort also amounts to a crime.
44.	Like Hale LJ I consider that the unaddressed issues remain open.  Whether they need to be resolved by the courts of this country will depend on the extent, if any, to which the Parole Board’s practice departs from a standard of due process which, while not reproducing criminal trial procedure, does proper justice to prisoners case by case.  This means, as Simon Brown LJ says, that attention needs to be given in each recall case to what is necessary for its just disposal.  A prisoner who does not ask for an oral hearing cannot ordinarily expect one;  but even here it may become apparent to the Parole Board that a hearing is needed if it is to reach a safe conclusion on a disputed issue.  A prisoner who does ask for an oral hearing will not necessarily be entitled to one:  again it will depend on what is necessary for a fair disposal of the issues.  Due process, moreover, raises more questions than orality.  It may involve opportunities to respond, albeit in writing, to newly raised points;  and so forth.
45.	All of this is already part of the common law.  Our judge-made public law recognises that the impact of recall is fully as grave as Hale LJ says it is.  It accordingly calls for a high standard of fair procedure.  What it does not do is react schematically to the need by insisting on the translation of the criminal trial process into the different context of a Parole Board hearing.  Indeed, even if Mr Clayton had been right in his submission that recall amounts to the determination of a criminal charge, it would not in my judgment follow that a quasi-criminal trial had to take place.  No two states which have ratified the European Convention on Human Rights have the same criminal procedures.  What the Court of Human Rights looks for under Article 6 is not a particular form of process (it could not possibly do that) but a recognisable substance which assures those rights of accused persons which the Convention protects.  
46.	It may well be therefore that, whether the recall process is taken to be the determination of a criminal charge, the determination of a prisoner’s civil rights and obligations, or a statutory process directly impinging on personal liberty, what matters both in modern public law and under the Convention (two streams which since 2 October 2000 have flowed in one channel) is that the prisoner should have every reasonable opportunity to contest his recall.  This means, in my view, that the Home Secretary’s reasons for recalling the prisoner must stand up by themselves – in other words, that it is not for the prisoner to displace a fait accompli  - as well as that the prisoner’s own submissions to the contrary must be fully and fairly entertained.  Among the things which will differ from our received criminal process – though not necessarily from that of other states signatories of the Convention or of modern international criminal tribunals - is the mode of proof.  Provided the overall objective of a fair hearing is met, I see no great problem in any of this.
47.	For these  reasons the appeal in my judgment fails.
Lady Justice Hale:
48.	The true issue which the appellant wished to have determined in this case was whether he should have been given an oral hearing, with legal representation, before the Parole Board decided whether to recommend his re-release under s 39(5) of the Criminal Justice Act 1991 after his recall by the Home Secretary under s 39(2).  If that had been the question asked of this court, I have little doubt that I would have answered it in the affirmative, if only for the reasons given by Simon Brown LJ in paragraph 40 of his judgment, considered in the light of the facts of this case.  
49.	Unfortunately, we have only been asked to consider the narrow question of whether this is the “determination of a criminal charge against him” for the purpose of Article 6(1) of the European Convention on Human Rights.  We have not formally been asked to consider whether, if it is not a criminal charge, it is nevertheless the “determination of his civil rights and obligations”.  The content of civil rights and obligations is a matter for domestic law.  But the common law has always regarded the right to freedom from physical coercion, sometimes referred to as the right to bodily integrity, as the most important of civil rights.  Imprisonment is a serious interference with that right.  Furthermore, the question whether a person should be deprived of it by recall depends upon whether he has broken or is likely to break his obligations, whether by the breach of his licence conditions in the past of the commission of further offences in the future (see the criteria contained in the Home Secretary's direction to the Parole Board, quoted in paragraph 15 of Simon Brown LJ's judgment).  At first blush, therefore, and without the benefit of hearing full argument on the subject, I would expect to conclude that this was at least the determination of his civil rights and obligations and that Article 6(1) was thus engaged.  The requirements of a fair hearing may differ according to the subject matter but they would include the right to be heard and to be represented by counsel, albeit not necessarily at public expense.
50.	But we are in the unsatisfactory position of having to decide whether this is a  “criminal charge” even though it will make no difference to the individual appellant and cannot give any general guidance as to the requirements of a fair procedure for anyone else unless we find that it is.  This seems to me to be an academic exercise in the most pejorative sense of that word.
51.	In deciding that question, we have to apply the Engel criteria:  in particular, the nature of the “offence” and the nature and severity of the “penalty”.  These are both terms which beg the question, and might be better expressed as “the nature of the conduct in question” and “the nature and severity of the consequences”.
52.	Beginning with the latter, the consequence of recall even of a short term prisoner is severe indeed.  Unless it is for a very short time indeed (remembering that Engel itself involved two days’ “strict arrest”), it cannot be anything other than “appreciably detrimental”.  Unlike the authorities cited by Simon Brown LJ in paragraph 28 of his judgment, including the two European cases of M -v- Italy and Maaouia -v- France, it is imprisonment:  detention in a prison subject to the Prison Rules and all that that entails.  Furthermore, it can be (and was in this case) for an appreciable period of time:  the imprisonment will last for the remainder of the time left until three quarters of the original sentence has been served with no possibility of earlier release.  On release, there will be lesser restrictions on liberty with the renewed possibility of recall until the whole sentence has been served.  I do not find the domestic preventive powers cited particularly helpful:  they do restrict freedom of action to some extent, but to nothing approaching the same extent as imprisonment.  They are much more like an injunction or order made in civil proceedings, for example under the Family Law Act 1996.  But in that case, an application to commit or otherwise punish the person concerned for breach of the injunction or order is undoubtedly treated as a criminal charge.  I would expect the same view to be taken when applications are made to impose a penalty for breach of a football banning order, or a sex offenders order, or an anti-social behaviour order.  The imposition of imprisonment, rather than some other form of detention, must take any case a long way towards being the determination of a criminal charge.  To the person concerned it is experienced as punishment, whatever the authorities may say.
53.	But of course the occasion for imposing it, the second Engel criterion, is also relevant.  I agree that it cannot make a difference whether it is or is not a criminal offence.  The disappearance of a sex offender is much more worrying than many offences.  But there will be some behaviour of which complaint is made:  either the commission of further offences, or the sort of behaviour which gives rise to the likelihood that further offences will be committed, or a failure to comply with the conditions of the licence.  Such allegations may well give rise to the sort of factual disputes which arose in this case and which in our traditions are considered best determined at an oral hearing.  If, therefore, the Engel criteria would lead to a classification as a criminal charge, what difference does it make that the underlying purpose of it is said to be preventive rather than punitive? All imprisonment is necessarily preventive and in the eyes of many that is one of the main justifications for imposing it.  We do not at the moment have purely preventive imprisonment in this country.  But if it were introduced, for example for those whose behaviour and personalities were such as to give rise to a likelihood that offences would be committed if they were left at large, then surely that would be regarded as the determination of a criminal charge against them? Why should it attract any less rigorous procedural safeguards than apply to those who are accused of actually having committed such offences? In using the words “imposed as a punishment or deterrent” the European court is trying to put its finger on a distinction which we all intuitively understand between punishment and regulation or internal discipline.  I do not regard the characterisation of recall to prison as preventive or protective in the quite different contexts in which the question arose in both R -v- Sharkey [2000] 1 Cr App R 409, R (Akhtar) -v- Home Secretary [2001] EWCA Admin 38 and R (Akhtar) -v- Governor of HMP Newhall and Homes Secretary [2001] EWHC Admin 175 as determinative of the question before us.  They were all concerned to construe the content and consequences of the recall provisions in the statute.  They were not concerned with the different question before us.
54.	I find the reasoning in Ezeh and Connors -v- United Kingdom (App Nos 39665/98 and 400086/08) is of some help albeit not conclusive.  In both cases, it may be said that the authority of the original sentencing court does continue beyond the date upon which the right of release under s 33 arises.  (This may well suffice to make the further detention lawful for the purpose of Article 5(1), another issue which we have not been asked to explore.) The right of release is subject to any additional days or to the possibility of recall.  Nevertheless, the appellant has been recalled to prison as a result of things that he is alleged to have done quite other than those which led to the original conviction.  The original offence may well be considered as part of the consideration of whether the criteria for recall are fulfilled, but if that were all he would not be being recalled at all.  It is because of fresh events that the recall, with all its consequences, takes place.
55.	For all those reasons, I conclude that this is the determination of a criminal charge and the person recalled is entitled to the appropriate Article 6 protection as a result.  It does not follow that the hearing has to be conducted in every respect as if it were a criminal trial in this country (eg that all the people who may have witnessed the appellant's behaviour need be called to give evidence).  European expectations are different from ours in this respect and given that we are only deciding whether European standards should be imposed upon a procedure which is not classed as criminal proceedings in domestic law a more flexible approach may well be entirely appropriate.  
56.	I recognise that this conclusion has serious practical implications.  The problem lies in a system which imposes fixed terms of imprisonment and then entitles the prisoner to be released half way through irrespective of whether or not he is at that stage thought to be at risk of committing further offences.  But once the prisoner has been released, the notion that he can be recalled to prison because of his subsequent behaviour without any form of hearing to defend himself is if anything more serious than keeping him in prison a little longer because he has offended against its necessary disciplinary code.