IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE GOLDRING, MR JUSTICE SILBER)
B e f o r e :
LORD JUSTICE BROOKE
MR JUSTICE HOLMAN
|THE PAROLE BOARD||Defendant/Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR DAVID PANNICK QC and MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent
Crown Copyright ©
"While in prison Mr Smith began using Class A controlled drugs and continued this misuse when bailed. He failed a Mandatory Drugs Test in June 2000, incurring 21 ADAs, notwithstanding his contact with a Drugs Counsellor from December 1999."
The letter went on to say that in all the circumstances "the Board was not satisfied that the substantial risk indicated by the index offence had been reduced sufficiently for parole purposes".
"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."
As a condition of his licence he was required to reside at Bradshaw House Probation Hostel, Bury. There were various other conditions, including a condition that he should not commit further offences, and that he should not act in such a way as to jeopardise the objectives of supervision.
Steps to revocation
"Because of what we know about Mr Smith's drug use he presents an unacceptable level of risk in the community."
That recommendation was supported by the District Manager of the Probation service, David Brierly, on the basis that there were "serious concerns about risk". In his Licence Revocation Request Report Mr Carling stated that -
"Throughout his sentence Mr Smith has been assessed as presenting a high risk of harm."
He referred to a meeting held shortly before the claimant's release to discuss his release plan and to co-ordinate a strategy that would manage the risk issue. It included senior probation staff and Dr Carl Wilson, a consultant forensic psychiatrist. The meeting noted that substance abuse would be a serious factor in raising the levels of risk.
"regular use of crack cocaine and that he suffered from lethargy and depression when he was withdrawing from these substances."
Dr Wilson raised serious concerns as to that. Mr Carling said that, to his knowledge, nobody had actually seen the claimant when he had recently used crack cocaine, but, he said -
"We can only speculate what the effect of such a powerful stimulant could be on a man who is already volatile, impressionable and potentially dangerous. In addition there are serious concerns about the influence of other drug users and criminals with whom he is inevitably associating to get supplies and maintain his habit."
"It has been reported that you have failed to be of good behaviour, not to commit any offence and not to 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; in that you have tested positive on two occasions for drugs.
In view of the offences for which you were originally sentenced and your behaviour described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
Section 39(3) provides that a person recalled to prison under section 39(1) -
"(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."
"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."
Section 32 of the 1991 Act deals with the Parole Board, and the following subsections are material -
"(2) It shall be the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners.
(3) The Board shall deal with cases as respects which it makes recommendations under this Part or Chapter II on consideration of -
(a) any documents given to it by the Secretary of State; and
(b) any other oral or written information obtained by it,
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview and shall consider the report of the interview made by that member.
(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any function under this Part or Chapter II; and in giving any such directions the Secretary of State shall in particular have 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."
Directions have been given pursuant to section 32(6), and they begin -
"Recall of Determinate Sentence Prisoners subject to Licence
Where an offender is subject to a custodial sentence, the licence period is an integral part of the sentence, and compliance with licence conditions is required. In most cases, the licences are combined with supervision by a probation officer .....
The objectives of supervision are:
• To protect the public
• To prevent re-offending
• To ensure the prisoner's successful reintegration into the community."
The Directions then deal with the initial recommendation for a recall (in the present case the recommendation made on 4th February 2002) before turning to the Representations against Recall, where the Directions state -
"When considering a prisoner's representations, the Parole Board shall determine whether:
(a) the prisoner's liberty would represent unacceptable risk of a further offence being committed. The type of re-offending involved does not need to involve a risk to public safety;
(b) whilst on licence the prisoner failed to comply with one or more of his or her licence conditions and that failure suggested that the objectives of probation supervision had been undermined; or
(c) the prisoner had breached the trust placed in him or her by the Secretary of State either by failing to comply with one or more of his licence conditions, or any other means; and
(d) the prisoner is likely to comply with licence conditions in the future, taking into account particular the effect of the further period of imprisonment since recall.
Each individual case should be decided on its merits, without discrimination on any grounds."
1. 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;
b. The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent him committing an offence or fleeing after having done so;
d. The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e. The lawful detention of persons for the prevention of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f. The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action has been taken with a view to deportation or extradition.
4. 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.
1. In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law .....
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing .....
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
For the claimant Mr Scrivener QC makes submissions in relation to Article 5, Article 6 and at common law.
"In these circumstances, and in my judgment, there can be no scope for importing into what is plainly an administrative act the formal requirements of Articles 5 and 6.
The claimant's approach involves the commencement of the process of examining the lawfulness of the decision to revoke the sentence at the wrong point, that is to say, if by way of repetition, by ignoring the fact that the sentence itself provides for administrative recall if conditions arise in which the provisions of sections 32(6) are met."
Mr Scrivener submits that the approach adopted by Turner J was wrong. In the present case the claimant had a statutory right to be released after serving 2/3 of his sentence, and when once again deprived of his liberty he was entitled to take proceedings pursuant to Article 5.4.
"The decisive ground of the applicant's continued detention was and continues to be his dangerousness to society, a characteristic susceptible to change with the passage of time. Accordingly, new issues of lawfulness may arise in the course of detention and the applicant is entitled under Article 5 paragraph 4 to take proceedings to have these issues decided by a court at reasonable intervals as well as to have the lawfulness of any re-detention determined by a court ..... "
At that time the powers of the Parole Board were more limited, and it was not considered to be a body satisfying the requirements of Article 5.4. As to the need for adversarial proceedings, the court said at paragraphs 67 to 68 -
"The Court recalls in this context that, in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant's character or mental state, it has held that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing .....
The Court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness, Article 5.4 requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses."
The decision in Hussain was to precisely the same effect.
"Article 5.4 is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention - an applicant is not required, as a pre-condition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release. In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant's character or mental state, the Court's case-law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant's personality and level of maturity and reliability are of importance in deciding on his dangerousness, Article 5.4 requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses."
Mr Scrivener submits that it makes no difference that the prisoner is, as in the present case, serving a determinate sentence, because the question is the same namely the risk to the public if he retains his liberty.
"Sentences which were indeterminate and where otherwise the decision whether to release the prisoner lay with the executive."
In the House of Lords that was agreed to be accurate, but it was said to leave open the question of which core rights Article 5.4 read with Article 5.1 is framed to protect. As to that the House of Lords was unanimous. At paragraph 41 Lord Hope said -
"The critical distinction is that which the European Court has made between cases where the length of the detention is fixed by the court and those where decisions about its length are left to the executive. It is in the latter case only that new issues of lawfulness may arise in the course of the detention which were not incorporated in the original decision by the court."
Having reviewed the European decisions Lord Hope said at paragraph 51 -
"It is plain from this summary that the basic rule which the European Court laid down in De Wilde v Belgium 1 EHRR 373 continues to apply. Where the prisoner has been lawfully detained within the meaning of Article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which Article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the determination have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which Article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary."
Lord Hutton agreed, saying at paragraph 74 -
"The jurisprudence of the European Commission and the European Court has recognised that Article 5(4) has no application where a prisoner is serving or has served a fixed term sentence."
Clearly the decision of the House of Lords in Giles is of considerable assistance to the respondent in the present case.
"Giving him the possibility of submitting written comments on the Office's opinion would have constituted an appropriate means ..... "
As Mr Pannick pointed out, the Parole Board in the present case was not simply concerned with dangerousness. It had a narrower function, spelt out in the Directions I have cited, and on the facts of this case, for reasons I will explain later when dealing with Mr Scrivener's submission made in relation to common law, I would accept Mr Pannick's alternative submission were it necessary to do so. Mr Scrivener submitted in reply that whereas written representations might suffice in relation to someone held in custody waiting extradition they could not suffice in relation to a prisoner on licence who has been recalled. I do not follow that distinction. Liberty is equally valuable to everyone.
"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 on whether he has broken or is likely to break his obligations, whether by the breach of his licence conditions in the past or the commission of further offences in the future; ..... 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."
Mr Scrivener contends that having completed two thirds of his sentence the claimant was entitled by statute to his freedom, and the decision to recall him interfered with his civil rights. It was a determination of his rights and obligations because it involved deprivation of liberty for a substantial period. Freedom from coercion is, he submits an important civil right, and imprisonment is a serious interference with it. He accepts that the claimant had full access to the material placed before the Parole Board, but he submits that without an oral hearing he did not have a proper opportunity to deal with it.
(1) When recalled he had no civil right to liberty until the end of his sentence. That had been lost at the time when he was convicted and sentenced in accordance with Article 6.
(2) There was therefore no fresh deprivation of liberty, as is apparent from the wording of section 39(6) of the 1991 Act.
(3) With Article 6, as with Article 5, the decision of the sentencing court justified the detention for the entire period of the sentence, and that court knew that the claimant was likely to be released on licence and might be recalled.
(4) The fact that what was being considered by the Parole Board was whether or not the claimant should remain in prison, which was a matter of importance to the claimant, does not mean that the Parole Board was engaged in a determination of his civil rights and obligations, because many proceedings with adverse consequences do not fall within either limb of Article 6.1 see for example, R (McCann) v Manchester Crown Court  UKHL 39;  3 WLR 1313 where the House of Lords was considering anti-social behaviour orders. Lord Hope said at page 1335 paragraph 59 -
'It would be wrong to approach the Article on the assumption that all that is in issue is the question as to which of these two descriptions better fits the nature of the proceedings. It is not a straight choice between one description and the other. It is possible that the proceedings which are in issue in a given case will fit neither description.'
Mr Pannick submits that proceedings in relation to immigration and income tax are other examples of proceedings which fall outside the ambit of Article 6.
(5) In Aldrian v Austria 1990) 65 D & R 337 the sentence of an Austrian soldier had been reduced by an act of grace of the Federal President to 15 years imprisonment of which the applicant had served 10, but he was refused conditional release, so he complained of a violation of Article 6.1. The European Commission held that his application was inadmissible, saying at 342 -
'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 … the Commission further recalls that a right to be released on probation is not as such included among the rights and freedoms guaranteed by the Convention and that Article 5.4 does not apply in this respect.'"
"(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.
(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
(4) An essential feature of the context is the statute which creates the discretion as regards both its language and the shape of the legal and administrative system within which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what facts may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
As Mr Pannick points out, Lord Mustill went on to say at 560H that it is not enough for a claimant -
"To persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is unfair. The court must constantly bear in mind that it is to the decision maker not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."
"As to the 'right to liberty' (Art 5) its 'civil' character is at any rate open to argument."
"(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."
" ..... the respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision-maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."
Order: Application dismissed
No part of the text has been changed. I have indicated in the margin a query in paragraphs 8, 21 and 24.
No part of the text has been changed