C3/2003/1419 
C3/2003/1420 
Neutral Citation Number: [2003] EWCA Civ 1269
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE GOLDRING, MR JUSTICE SILBER)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 31 July 2003
 
B E F O R E:

LORD JUSTICE KENNEDY 
 
LORD JUSTICE BROOKE 
 
MR JUSTICE HOLMAN 
 
- - - - - - -
 
SMITH
Claimant/Applicant 
-v-
 
THE PAROLE BOARD 
Defendant/Respondent 
 - - - - - - -
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400 Fax No: 020 7831 8838
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 - - - - - - -
MR ANTHONY SCRIVENER QC and MISS S WATSON (instructed by Rooney & Co of Birkenhead) appeared on behalf of the Applicant
MR DAVID PANNICK QC and MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent
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J U D G M E N T 

1.	LORD JUSTICE KENNEDY:  The issue in this case is whether the proceedings before the Parole Board in relation to the revocation of the claimant’s licence pursuant to section 39 of the Criminal Justice Act 1991 were fair.  The claimant submits that for the proceedings to be fair an oral hearing was necessary.  
Background.
2.		On 8th May 1998 the claimant, born 30th July 1969, was convicted of rape and of making threats to kill. He had a number of previous convictions for violent offences. He was sentenced to 8 years imprisonment, which was reduced on appeal to 6½ years, and he was made the subject of an extended licence, pursuant to section 44 of the 1991 Act.  The effect of that was to extend the licence from the point at which it would normally have expired (after ¾ of the sentence) to the end of the sentence.
3.		On 23rd October 2000 the Parole Board considered his application and found he was not suitable for early release on licence.  The letter advising the claimant of that decision referred to the index offences, his record and his failure to take advantage of some of the opportunities offered to him in prison.  It contained this passage - 
“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”.
4.		Taking into account the period spent in custody prior to conviction, the appellant was released on licence after serving 2/3 of his sentence on 7th November 2001.  As Mr Scrivener QC, for the claimant, pointed out, that was in accordance with section 33(2) of the 1991 Act which provides that - 
“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. 
5.	On 22nd November 2001, because of suspicions about drug use at the hostel, the claimant and others were tested.  He was found to be positive for cocaine, benzodiazepine and methadone.  He admitted the use of cocaine, but denied using the other drugs and on 23rd November 2001 he was given a warning letter.  In a subsequent letter he was told that testing arrangements were being organised to monitor the situation.
6.		On 10th December 2001 the claimant was transferred to New Beswick House Hostel, Manchester, and on 15th January 2002 he tested positive for cocaine at Manchester Drug Centre.  On 18th January 2002 he tested positive for cocaine and opiates at New Beswick House.
Steps to revocation 
7.		On 25th January 2002 the claimant’s supervising probation officer David Carling recommended revocation of his licence on the basis that -
“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.
8.		Mr Carling’s report went on to deal with the history since release, including in particular the results of drug testing, and it acknowledged that “in every other way Mr Smith has complied with his licence conditions, including keeping appointments with Dr Wilson”.  But Dr Wilson drew attention to the effects of the claimant’s drug abuse.  He mentioned instability of mood with periods of depression and that the claimant had admitted to -
“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.” 
9.		The case was submitted to the Parole Board, for it to decide whether to make a recommendation pursuant to section 39(1) of the 1991 Act.  That section provides that if recommended to do so by the Parole Board the Secretary of State may revoke the licence of a prisoner who has been released on licence and recall him to prison.  On 4th February 2002 the Parole Board recommended revocation of the claimant’s licence, and on 6th February 2002 the Secretary of State acted in accordance with that recommendation.  The claimant was recalled to prison, and received this explanation -
“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.”
10.		The claimant, by his solicitors, made written representations to the Parole Board on 20th March 2002.  He admitted the use of crack cocaine, but denied using benzodiazopine or methadone.  He also admitted a history of class A drug use, but contended that his drug use on licence was attributable to the environment in which he had been placed by the Probation Service.  He said he had been drug free whilst in prison, and did not pose an unacceptable risk.  His solicitors did not ask for an oral hearing, or challenge anything in Mr Carling’s report.
11.		Where a prisoner has been recalled under section 39(1) and makes representations under section 39(3), the Secretary of State is required by section 39(4) to refer his case to the Parole Board and section 39(5) provides that if the Parole Board recommends that the prisoner be released on licence the Secretary of State shall give effect to the recommendation.  Otherwise it is provided by section 39(6) that - 
“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.”
12.		On 3rd April 2002 the Parole Board by letter rejected the claimant’s representations.  It said that his use of drugs was a major concern and “his inability or unwillingness to desist from drug use represented too great a risk to public safety.”
These Proceedings. 
13.		On 30th December 2002 the claimant began these proceedings by seeking permission to apply for judicial review of the decision to determine the issue of revocation of his licence and recall to prison by way of written representation only.  That was said to be in breach of Articles 5 and 6 of the European Convention on Human Rights, and contrary to common law.  The application was not made promptly, or within three months after the grounds to make the claim first arose, as required by CPR 54.15.  As to that the claimant said that there had been difficulty in obtaining funding, that the issues raised were important, and that he was currently detained.  The application was refused on paper by Hooper J on the ground of delay, and on the ground that it was unnecessary because the claimant could seek a fresh grant of parole.  At an oral renewal of the application Silber J on 17th March 2003 granted permission to seek judicial review, but only in relation to the allegations relating to Article 6 and common law.  The case was listed on 24th June 2003 before Goldring J.  The claimant then sought to rely on Article 5, and the judge refused to allow him to do so.  There was an appeal against that refusal, and on 30th June 2003 this court (the Lord Chief Justice, Auld and Clarke LJJ) allowed the appeal and ordered that the claimant be permitted to rely upon Article 5 as well as Article 6 and common law at the hearing.  It also ordered that the case be heard in this court.  
14.		When giving judgment on 30th June the court encouraged the claimant to seek a further review by the Parole Board.  Inquiries made by his solicitor reveal that he has done so, but the application for a review has been refused on the basis that in order to be eligible for parole he needs to have at least nine months of his sentence left to serve.   The claimant is not in that position because his release date is 3rd December 2003. 
European Convention.
15.	Those parts of Articles 5 and 6 which are said to be relevant in this case read as follows -
“Article 5.
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.
Article 6.
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.
Article 5.
16.		As to Article 5, Mr Scrivener points out that it was accepted by the Parole Board that the claimant did not offend whilst in the community on licence, except in relation to his own consumption of illegal drugs.  Whilst in the community he enjoyed the right to liberty enshrined in Article 5.1, and his deprivation of that right does not, it is submitted, fall within any of the exceptions set out in Article 5.1a to f.  
17.		In R (Justin West) v Parole Board [2002] EWHC Admin 769  Turner J was concerned with a challenge to a decision of the Parole Board taken, as in the present case, after recall.  In paragraph 31 of the judgment he pointed out that the original trial and sentence were in conformity with the requirements of domestic law, including those introduced by the European Convention, and continued -
“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.  
18.		In West Turner J was not referred to three decisions of the European Court which, Mr Scrivener submits, are material and support the proposition that a decision to recall is a fresh decision requiring proof of matters which are different from those which were relevant to the original offence.  Those three decisions are Hussain v UK [1996] 22 EHRR 1, Prem Singh v UK 21st February 1996 and Waite v UK 10th March 2003.  In each of those cases the applicant was an offender under the age of 18 who had been sentenced to be detained during Her Majesty’s Pleasure and in each of the two earlier cases the European Court held that the applicant was entitled at reasonable intervals to take proceedings pursuant to Article 5.4 to decide the lawfulness of his continued detention.  Hussain and Prem Singh were decided on the same day.  In Prem Singh the court held at paragraph 62, that the applicant’s sentence, after the expiration of his tariff, was comparable to a discretionary life sentence.  It continued -
“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.
19.	Waite had been released on licence on two occasions, and had subsequently been recalled.  Following the decisions in Hussain and Prem Singh, the procedure in the United Kingdom had been changed, and the cases of prisoners detained during Her Majesty’s Pleasure were periodically reviewed by the Parole Board.  Such reviews took the form of an oral hearing at which prisoners were entitled to legal representation and to examine and cross-examine witnesses.  But when Waite was recalled to prison in July 1997 there was, as a result of an oversight, no oral hearing.  Written representations were made and were considered, and the government argued that the oversight was not material because the outcome was inevitable, but the European Court was not satisfied.  It said at paragraph 59 of its judgment in that case -
“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.
20.		Mr Pannick QC, for the respondent, submits that where the prisoner is serving a determinate sentence the approach must be different, because the sentence has been imposed under a statutory regime which envisages release on licence within the period of sentence and recall within that period, but the whole period is authorised by the sentencing judge.  It is the tariff period, and in that period the prisoner is not entitled to any further protection under Article 5.  The wording of section 39(6) of the 1991 Act illustrates the point because when recalled the prisoner is “detained in pursuance of his sentence” not in pursuance of the decision of the Parole Board.  In the Directions made by the Secretary of State it is made clear that “the licence period is an integral part of the sentence and compliance with licence conditions is required”.  The same point is made by this court in Uttley v Secretary Of State for the Home Department [2003] EWCA Civ 1130.
21.		In R (Giles) v Parole Board [2002] EWCA Civ 951; [2003] 2 WLR 196 the sentencing judge exercised his powers under section 2(2)(b) of the 1991 Act by sentencing in a way which took account of the violent nature of the offending and of the danger which the offender represented to the public, but the sentence was for a determinate term, namely 7 years, and this court held that even where section 2(2)(b) is invoked the requirements of Article 5 are satisfied by the original sentencing process.  That decision has now been upheld by the House of Lords in [2003] UKHL 42.  The decisions of the European Court requiring further judicial supervision after sentence were said by May LJ in this court at 209 all to concern -
“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.
22.		In R (Sim) v Parole Board [2003] EWHC 151 (Admin); [2003] 2 WLR 1374 a sexual offender received an extended sentence consisting of 30 months and an extension period of 5 years.  After release on licence he was recalled, and contended that in the extension period he was entitled to the protection of Article 5.4.  Elias J accepted that submission in a decision which, we understand, is now under appeal, but in any event the statutory provisions under which the sentence was imposed were very different from those which applied in the present case.
23.		In my judgment the decision to recall is not an infringement of the right to liberty in the case of a prisoner serving a determinate sentence who has been released on licence because his right to liberty for the period up to the end of his sentence was lost when he was sentenced.  There being no right to liberty which has been infringed there can be no right to take proceedings to decide whether the detention is lawful.  That has already been decided.
24.		That makes it unnecessary to consider Mr Pannick’s alternative submission, namely that in the context of a case like this, where there has been a determinate sentence, a release on licence, and a recall during the period specified by the sentencing court, the Parole Board will be regarded as a court for the purposes of Article 5.4 (that is conceded), and in an appropriate case it will be accepted that “the court” is entitled to adopt a written procedure (see Sanchez-Reisse v Switzerland (1986) 9 EHRR 71).  So it is at least arguable that if Article 5 applied the requirements of Article 5.4 were satisfied.  Sanchez-Reisse was opposing his extradition to Argentina and was refused provisional release.  At paragraph 51 of its judgment the European Court said that Article 5.4 required that he be provided, in some way or another, with the benefit of an adversarial procedure -
“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.
Article 6.
25.		In West [2002] EWCA Civ 1641; [2003] 1 WLR 705, to which I have already referred, it was held in this court that when the Parole Board is exercising its powers under section 39 of the 1991 Act it is acting solely with a view to the prevention of risk and to protect the public.  It is not seeking to impose punishment, and it is therefore not determining any criminal charge against the prisoner for the purposes of Article 6.
26.		Mr Scrivener submits that for a number of reasons that decision of this court was wrong, but, as Mr Pannick points out, we are bound by it, and I see no reason to examine the criminal charge issue any further.
27.		Article 6 is however also concerned with the determination of civil rights and obligations, and Mr Scrivener submits, in the alternative, that the proceedings before the Parole Board involved a determination of the claimant’s civil rights and obligations.  That possibility was not argued before this court in West but at paragraph 49 Hale LJ, in her dissenting judgment, said -
“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.
28.		Mr Pannick submits that the decision of the Parole Board in relation to the claimant’s recall did not determine his civil rights or obligations for the purposes of Article 6 because -
(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 [2002] UKHL 39; [2002] 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.’”
29.		Mr Pannick concedes that the jurisprudence has moved on since 1990, but he submits that those observations are still apposite.
30.		Mr Pannick goes on to submit that even if the Parole Board was determining the claimant’s civil rights and obligations he would not, in the circumstances of this case, have a right to an oral hearing, because Article 6.1 does not expressly confer any such right.  All that it requires is a fair and public hearing within a reasonable time by an independent and impartial tribunal, and, Mr Pannick submits, those requirements were met.  For the determination of a criminal charge Article 6.3 does require an oral hearing, but otherwise everything depends on what in the particular circumstances of the case fairness requires.  That distinction is important, and it permeates the speeches in McCann.  It is a distinction which should be maintained.  Because of the nature of its task the Parole Board does not sit in public, and Mr Scrivener does not contend that it should do so.  It has to assess prospective risk, and to balance probabilities.  Because it is forward looking there cannot be proof beyond reasonable doubt.  It exercises specialist judgment and it evaluates.  Whether a particular incident occurred may or may not be important in assessing present and prospective risk. In this case there was no request for an oral hearing, and in West Sedley LJ said at paragraph 44 that a prisoner who does not ask for an oral hearing cannot ordinarily expect one.
31.		Furthermore the claimant, by his solicitors, made detailed written representations in which he did not dispute using crack cocaine, or breach of the conditions of his licence, or that he had been warned that his conduct would lead to revocation of his licence.  He said that he was pushed back into drug use by the environment in which he was placed where drugs were readily available.  It did not require an oral hearing to make those points.
32.		The claimant complains that he had no opportunity to cross-examine the probation officer or the doctor as to risk, but it was for the Parole Board to decide as to the risk, in the light of the undisputed primary facts as to the claimant’s history of drug use and the nature of his original offending.  The Parole Board did not need to reach a conclusion about the availability of drugs in the hostels.  It was entitled to conclude that it posed too great a risk to the public to allow a person so prone to hard drugs to remain on licence, and such a conclusion is not even alleged to be perverse.
33.		In my judgment the Parole Board was not concerned with the determination of the claimant’s civil rights and obligations because, as Mr Pannick contends, he had no surviving right to liberty.  That had been lost when he was originally sentenced.
34.		Even if that were not the case I would not, in this case, say that the claimant was entitled to an oral hearing.  He did not request it.  He did not raise any issue which seemed to call for it.  The important primary facts were not in dispute.  The points which he wished to make were clearly made for him in writing, and all that remained was for the Parole Board to make its evaluation.
Common Law.
35.		It is common ground that if the procedure of a public body such as the Parole Board is unfair, then the Administrative Court can intervene to quash the decision, as it did in R v Parole Board ex parte Davies 27th November 1996 unreported.  As Simon Brown LJ said in West at paragraph 40, the Parole Board should be ready to hold oral hearings “if in truth a determination is likely to turn upon the resolution of important issues of fact”, and Mr Scrivener contends that was the situation in this case.  The Parole Board had to decide the issue of dangerousness, and to deal with that issue fairly the views of the psychiatrist and the probation officer should have been open to cross-examination, and the claimant should have been able to call evidence to the contrary (i.e. as to the effect of drug taking on him) and to address the Board.  The impact of the proceedings was serious because the claimant’s liberty was at stake, and although the solicitors did not ask for an oral hearing the Parole Board did not indicate that such a right existed, or itself give any indication having considered whether an oral hearing was required.  In West Turner J held at paragraph 34, that on the facts it was unnecessary to hold an oral hearing to resolve the issues of fact, but here, Mr Scrivener contends, the situation is different.  He concedes that at common law the decision as to what form of hearing fairness requires should be taken on a case by case basis, but his position seems to be that in recall cases so much is at stake that a full adversarial hearing will always, or almost always, be required, for the reasons given by the European Court in that passage from the decision in Waite which I have cited above.
36.		Mr Pannick points out that it is clear from the statement of Terry McCarthy, the Head of Casework at the Parole Board, that the Parole Board will hold an oral hearing after a recall if it considers it necessary in the interests of fairness to do so.  Both Mr Scrivener and Mr Pannick rely upon the speech of Lord Mustill in ex parte Doody [1994] 1 AC 531, which sets out at 560D in six propositions the approach to fairness which is required in a case such as this.  
“(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.”
37.		If full adversarial hearings were required in every case the impact upon the work of the Parole Board would be very considerable.  In the year to the end of March 2003 it made 923 determinations following recall, and the number is rising.  Over that period there were no more than three or four oral hearings, and if the number was to increase substantially it is clear from the statement of Mr McCarthy that the system would be likely to be overwhelmed.  But Mr Pannick does not base his case at common law on resource implications.  He points out that the Parole Board did have the power to act flexibly.  That is apparent from section 32(3) of the 1991 Act as well as from its own practice, and should therefore have been known to anyone advising the claimant.  Mr Pannick submits that the test as to when an oral hearing should be ordered is that indicated by Mr McCarthy in paragraph 4 of his statement, namely “where there is a disputed issue of fact which is central to the Board’s assessment and which cannot fairly be resolved without hearing oral evidence”.  That is substantially the same as was said by Simon Brown LJ in West, and it is a test with which I agree.  Mr Pannick goes on to submit that the issue which the Parole Board had to consider in this case was the risk to the public as indicated by the Directions, and where, as here, the primary facts were not in dispute the Parole Board was entitled to the benefit of written representations from the claimant’s solicitors to make its own evaluation.  To my mind that is plainly right, and an oral hearing was not required by common law.
Conclusion. 
38.		I would therefore dismiss this application.
39.	LORD JUSTICE BROOKE:  	I am adding this short judgment of my own because on one part of the appeal we heard argument on an issue on which Hale LJ expressed her views without the benefit of full argument in R (West) v Parole Board [2003] EWCA Civ 1641 at [49]; [2003] 1 WLR 705.  This is the question whether the “civil rights” aspect of ECHR Article 6(1) is engaged in a case like this.  Kennedy LJ has quoted this paragraph of Hale LJ’s judgment in paragraph 27 of his judgment, which I have read in draft, and I need not repeat it here.
40.		As Kennedy LJ has said, Mr Smith was sentenced to a custodial sentence of six and a half years for offences of rape and threats to kill.  The sentence would have been one which the Court of Appeal, which reduced the eight year term fixed by the trial judge, would have considered to be commensurate with the seriousness of his offences (see now section 80(2)(a) of the Powers of Criminal Courts (Sentencing) Act 2000).
41.		He was released on licence after he had served two thirds of his sentence pursuant to the Home Secretary’s statutory obligation to release him at that stage (Criminal Justice Act 1991 (“the 1991 Act”)).  One third of his sentence then remained unexpired, and throughout this unexpired period he remained liable to be recalled to prison pursuant to the arrangements set out in section 39 of the 1991 Act.  If his licence is revoked under that section he is liable to be detained in pursuance of his sentence (see section 39(6)).  The authority for his detention comes from no source other than that of the original sentencing court.
42.		On the face of it, it is difficult to see how his civil rights are engaged in these circumstances.  Article 5 of the European Convention on Human Rights (“ECHR”) is concerned with the right to liberty, and Mr Smith was deprived of his liberty when he was lawfully detained after conviction by a competent court in accordance with a procedure prescribed by law (ECHR Article 5(1)(a)).  This case is concerned with the loss of liberty during the fixed term of a determinate sentence.  It is not concerned with the continued detention of a prisoner serving an indeterminate sentence after the tariff period of his sentence has expired.
43.		In Neumeister v Austria (No 1) 1 EHRR 91 the European Court of Human Rights (“ECtHR”) held in 1968 that a request by a prisoner remanded in custody for provisional release from detention did not put in motion a determination of his civil rights (see para 23 of the court’s judgment).  In Golder v UK 1 EHRR 524 the ECtHR considered with sympathy in 1975 an argument that Article 5(4) was designed to afford a procedural guarantee for the right to liberty stated in Article 5(1), and a little later, presumably in the context of someone within the jurisdiction of the criminal courts, it said (judgment, para 33): 
“As to the ‘right to liberty’ (Art 5) its ‘civil’ character is at any rate open to argument.”
44.		This may have been a reflection of the earlier jurisprudence of the court, discussed recently by Lord Hoffmann in R (Alconbury Developments) Ltd v Secretary of State for the Environment [2001] UKHL 23 at [77] - [88]; [2001] 2 WLR 1389, and in Runa Begum v Tower Hamlets LBC [2003] UKHL 5 at [28] - [35]; [2003] 2 WLR 388.  The expression “civil rights and obligations” was originally intended to refer to those rights and obligations which in continental European systems of law were adjudicated upon by the civil courts in contrast to those determined by administrative decision-makers.  Although, as Lord Hoffmann shows, things have moved on since those early days, counsel has been unable to show us any decision of the Strasbourg court which would tend to suggest that an issue relating to a prisoner’s civil right to liberty was engaged in a situation like that with which we are concerned.
45.		In Aldrian v Austria (1990) 65 D&R 337 the European Commission on Human Rights was concerned with a case in which a murderer’s life sentence was reduced by the Austrian government as a measure of grace to a term of 15 years’ imprisonment, and he argued that because he had now served ten years of that term the conditions for a conditional release under one of the articles of the Austrian penal code were met.  The Austrian courts rejected that contention, and the European Commission on Human Rights in due course declared inadmissible a complaint by the prisoner that his Article 6(1) rights had been violated in connection with the way in which those courts handled the matter.  In paragraph 28 of his judgment Kennedy LJ has quoted the relevant part of the Commission’s determination which was supported by copious reference to earlier case law.
46.		Mr Scrivener submitted that the “civil rights” aspect of Article 6(1) became engaged because when the Parole Board considered matters relating to the revocation of a prisoner’s licence it was concerned not with questions of punishment but with the matters referred to in section 36(6) of the 1991 Act:
“(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.”
47.		It is difficult to discern any distinction of substance between the present case and Mr Giles’s case (R (Giles) v Parole Board [2003] UKHL 42).  In Mr Giles’s case the determinate sentence of the court included a term commensurate with the seriousness of his offences and a term necessary to protect the public and one of his victims in particular from serious harm.  In Mr Smith’s case the determinate sentence of the court includes a period commensurate with the seriousness of his offence which he is required to serve in prison (unless released on licence earlier) and a further period which he may have to serve, among other reasons, in order to protect the public from serious harm from him if he fails to comply with the terms of any licence under which he is released.  Given that the length of his sentence is determined at the outset in a manner which satisfies ECHR Article 5(1), I do not consider that the “civil rights” aspect of article 6(1) is engaged in relation to a decision to recall the prisoner to prison during the period of his sentence.
48.		I would add that in any event, as Kennedy LJ observes in paragraph 34 of his judgment, even if Article 6(1) was engaged, it was not violated on the facts of this case for the reasons he gives.  Provided that the procedure is fair, that article does not require an oral hearing in every case concerned with a determination of civil rights.
49.		In what I have said I am merely concerned to amplify one aspect of Kennedy LJ’s judgment, with which I am in full agreement.
50.	MR JUSTICE HOLMAN:  On behalf of the Parole Board, Mr Pannick QC readily agreed that the board must act in a way that is procedurally fair. The essential issue is whether fairness and/or any relevant provisions of the European Convention on Human Rights require that an oral hearing, including the opportunity to cross-examine the probation officer and, perhaps, the psychiatrist Dr Wilson, should have been afforded to the applicant. On his behalf, Mr Scrivener QC argues that they do. His argument is based on twin pillars but, despite the cogency of the argument, I am satisfied that neither pillar is sound.
51.		The first pillar is that a long-term prisoner has, in his words, “a statutory right to be released” after he has served two-thirds of his sentence. That right is founded on section 33(2) of the Criminal Justice Act 1991, as amended, which places the Secretary of State under a duty: “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.” Clearly that duty does create a correlative right in the prisoner that he will be released, and the applicant was. But neither the release nor the right is unqualified. What is critical is that it is a release on licence. The sentence, however, remains in force until its full term has expired. Section 39(6) makes plain that further detention after recall is detention pursuant to the sentence itself: “On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence ..... ”
52.		When Mr Scrivener speaks of “a right to be released”, what he is really contending for is a right to be released and thereafter to remain at liberty in the community with all the same rights as a person who is not still subject to a sentence of imprisonment. In my view it is plain from sections 33(2) and 39(6) and the scheme of the legislation generally that a long-term prisoner who is released on licence during a determinate sentence is not in that position and does not enjoy that right until the expiry of the licence. (In the case of the applicant, who had been made subject to an extended licence, the licence expires at the end of the term of the sentence itself.) 
53.		The second pillar of Mr Scrivener’s argument is that after release on licence the considerations governing recall are not the same as those which governed the original sentence. Punishment plays no part and the focus is on dangerousness and risk to the public. This is similar to the considerations when deciding whether to release or to recall a prisoner serving an indeterminate sentence after the expiry of the punitive or tariff part of the sentence, to whom an oral hearing must be, and now is, afforded. Mr Scrivener accordingly submits, in the words of paragraph 24 of his Skeleton Argument: “It follows that the question is the same as in the case of a discretionary life sentence ..... and the above principles should apply [viz a right to an oral hearing]. There is no reason why the same principles should not apply.” In my view, this argument, too, is fallacious. Although “the question” may be the same (namely, dangerousness and risk), the context in which the question is considered is quite different. A prisoner serving a determinate sentence who is released on licence is still serving the punitive or tariff term fixed by the original sentencing court. A life prisoner, ex hypothesi, is not, and quite different considerations apply. As the House of Lords have now made clear in R v Parole Board ex parte Giles [2003] UKHL 42, in passages that my Lord, Kennedy LJ, has quoted, the critical distinction is 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. Mr Scrivener’s argument seeks to blur that distinction by focusing instead on the common ground of dangerousness and risk. 
54.		Once these pillars are seen to be unsound, then in my view neither Articles 5 nor 6 of the Convention apply to the position of the applicant, or are engaged by his application, for the reasons given by my Lord, Kennedy LJ, with which I entirely agree. 
55.		I also agree with him and his reasons that, in the circumstances of this applicant and on the facts of this case, the common law requirements of fairness did not require that the Parole Board should afford an oral hearing. In this regard, the words of Lord Mustill in R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531 at 560H  561A are important:
“ ..... 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.”
56.		As Sedley LJ said in R (West) v Parole Board [2002] EWCA Civ 1641, [2003] 1 WLR 705 at paragraph 44, “ ..... attention needs to be given in each recall case to what is necessary for its just disposal ..... ” In the present case I agree with my Lord that there was no objective need for an oral hearing since there was no dispute as to the primary facts and the task for the board was assessment of risk. Accordingly, the procedure which was adopted was not “actually unfair” and I would refuse the application.
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