COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(The Hon. Mr Justice Elias)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
MR JUSTICE MUNBY
| The Secretary of State for the Home Department
|- and -
The Parole Board
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr E Fitzgerald Q.C., & Mr K Gledhill (instructed by Bhatt Murphy, London N1 6HB) for the 1st respondent
Miss K Steyn (Parole Board) (instructed by Treasury Solicitor) for the 2nd respondent
Crown Copyright ©
Lord Justice Keene:
The Factual Background
" First, that the claimant did not return to the Bail Hostel on 14 July 2001 but only returned the next morning. Second, that on 13 July 2001 the claimant had been arrested by the police with regard to an alleged indecent exposure to teenage girls; and third, that he had already received written warnings on 14 February and 26 June 2001 with regard to the fact that he had returned to the Hostel under the influence of alcohol. The supervising officer submitted that these factors demonstrated a breach of the conditions of his licence, and in particular the obligation "to be of good behaviour, not to commit any offence and not take any action which would jeopardise the objectives of your supervision."
On 20 July 2001 the Secretary of State revoked the respondent's licence under section 39 of the 1991 Act and recalled him to prison. The reasons given for the revocation were in essence that he had broken the conditions of his licence in that he had been arrested for an alleged offence of indecent exposure to two teenage girls and had failed to return to the Hostel on 14 July 2001. By section 39(3) a person recalled to prison in such circumstances is entitled to make representations in writing against his recall and then, under section 39(4), to have his case referred to the Parole Board. The respondent exercised that right and, following an adjournment at his request, an oral hearing took place on 15 April 2002. The Parole Board gave its decision on 17 April 2002, that decision being to refuse to direct his release. The respondent then brought judicial review proceedings to quash that decision and for certain declarations.
"the Board shall direct the prisoner's release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)." (emphasis added)
"You have continued to deny the present offences and apparently because of this have declined to participate in any programme designed to assist you in your rehabilitation. In the absence of such work the panel looked for other signs of progress.
There was not any evidence of any positive change of attitude towards your offences, there was a considerable body of evidence which the panel accepted that in an escalating pattern of seriousness, during your time at the hostel, you frequently returned to the hostel under the influence of alcohol in breach of condition (ix) of your licence, were aggressive towards other inmates and members of staff, showed no respect for the rules of the hostel and eventually were dismissed from your employment because of drunkenness. In short, the panel was quite satisfied you took many actions which would have jeopardised the objectives of your supervision namely to protect the public and serve your successful reintegration into the community.
Further having heard the evidence from you about your state of mind at the time, the panel was reinforced in its view that at the time you could not be managed on licence and you have failed to appreciate the need for any offending behaviour work since, hence the panel was satisfied you continue to pose that risk.
The panel considered that against a background where you failed to undertake work to address your offending, have repeatedly breached your licence conditions and, in particular, have shown no insight into your drinking habits and the effect that these have on your behaviour, the risk of your re-offending, were you immediately released is high. The panel is accordingly of the unanimous view that your immediate release would present an unacceptable risk to the public of further offences being committed and your representations against recall are rejected."
"1. The decision to continue to detain a prisoner who has been subject to recall during an extended licence period is a decision which attracts the safeguards of Article 5; accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with Article 5.4
2. Section 44A(4) of the Criminal Justice Act 1991 must be construed so that the Parole Board is obliged to conclude that it is no longer necessary to detain the recalled prisoner unless the Board are positively satisfied that the interests of the public require that he should be confined."
Those declarations give rise to the first two issues in this appeal, the judge having granted permission to the Secretary of State to appeal on those matters. Those issues may conveniently be labelled (1) the applicability of Article 5.4 to the decision to detain after revocation in these circumstances; and (2) the section 44A(4) presumption issue. A third issue arises because the judge also gave the respondent permission to appeal on one of the matters on which he had lost, namely whether hearsay evidence was rightly admitted at the hearing before the Parole Board.
The First Issue: Does Article 5(4) Apply?
"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;
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."
"The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under Article 5(1)(a) without the need for further reviews of detention under Article 5(4)."
As the European Court of Human Rights has itself put it, in such a case the supervision required by Article 5(4) is incorporated in the decision made by the sentencing court: De Wilde, Ooms and Versyn v- Belgium (No.1)  1 EHRR 373, 407 at paragraph 76.
"The provisions also ensure that the arrangements for recall are compatible with the ECHR, by providing that offenders who are recalled administratively during a period of extended supervision may have their continued detention reviewed by the Parole Board sitting in its judicial capacity." (paragraph 2.8)
"(1) This section applies where the court-
(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30 September 1998; and
(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.
(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of-
(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ("the custodial term"); and
(b) a further period ("the extension period") for which the offender is to be subject to licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above.
(3) Where the offence is a violent offence, the court shall not pass an extended sentence the custodial term of which is less than four years.
(4) The extension period shall not exceed-
(a) ten years in the case of a sexual offence; and
(b) five years in the case of a violent offence.
(5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence."
"on the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence ",
Mr Singh acknowledges that one must have regard to the Strasbourg jurisprudence in determining this issue. As to that, he accepts that there are some circumstances where Article 5(4) may bite in the case of a person recalled to prison during a licence period, even though that detention arises out of or is a consequence of an earlier sentence of imprisonment imposed by a competent court, but he submits that these amount to a limited exception which does not apply in the present case. His submission, adopted by Miss Steyn for the Parole Board, is that such an exception only arises in the case of indeterminate sentences of imprisonment, which in the English context means discretionary or mandatory sentences of life imprisonment after the specified "tariff" period has expired or in equivalent sentences for those under 21 or under 18.
"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."
Although that case was concerned with an extended licence under section 44 of the 1991 Act, not an extended sentence, it is submitted that the reasoning applies to the latter as well. The crucial point is that the sentence is for a fixed term, a period fixed by the court and not the executive. The licence period is an integral part of the sentence, and the authority to detain during that period derives from the original sentence.
"We turn to consider extended sentences with commensurate custodial terms. One purpose of an extended sentence is to reduce the likelihood of re-offending, and it is therefore particularly suitable where a commensurate custodial term is too short for this to be done in prison and where the normal licence period, if any, will not be long enough to permit attendance at a treatment programme in the community. This will arise particularly in relation to less serious sexual offences, where the likelihood of re-offending appears high, but where a longer than commensurate sentence cannot be justified because the offender does not present a risk of serious harm to the public."
Such sentences, it is submitted, are emphasising the prospects of treating the offender in the community, which puts them into a very different category from such sentences as longer then commensurate sentences where custody is clearly imposed by the court for the period of the sentence.
" 'Persistent tendency to crime' and 'danger to society' are essentially relative concepts and they involve monitoring the development of the offender's personality and behaviour
It must therefore be asked whether the very logic of the Belgian system does not require subsequent judicial review, at reasonable intervals, of the justification for the deprivation of liberty. If one were to consider such justification to have been established once and for all at the moment of conviction, this would amount in a way to a presumption that the detention would produce no useful result." (paragraph 47)
The European Court found a breach of Article 5(4).
Analysis of First Issue
"to conclude that the Strasbourg decisions have only applied Article 5(4) to cases having features different from the present does not conclude the issue which the appellant raises unless those differences are such as should lead to a different result." (paragraph 9)
The extended sentence under section 85 of the 1991 Act is a novel creature, differing in its characteristics both from the classic indeterminate sentence and from the "normal" type of determinate sentence under consideration in Giles.
"Does Article 5(4) give rise to the same requirement where, as happens in the case of a determinate sentence, the length of the sentence is determined by the sentencing court at the outset?"
"was fundamentally different from that of the conditional release of prisoners 'sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case' (my emphasis)." paragraph 37.
He subsequently went on to comment on that decision and the one in E v- Norway, saying this at paragraph 40:
"Where the decision about the length of the period of detention is made by a court at the close of judicial proceedings, the requirements of article 5(1) are satisfied and the supervision required by article 5(4) is incorporated in the decision itself. That is the principle which was established in De Wilde, Ooms and Versyp. But where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. This is because there is a risk that the link between continued detention and the original justification for it will be lost as conditions change with the passage of time. If this happens there is a risk that decisions which are taken by the executive will be arbitrary. That risk is absent where the length of the period of detention is fixed as part of its original decision by the court. "
He then identified "the decisive factor" in the following terms:
"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." (paragraph 41)
"the same rights as a person who is not still subject to a sentence of imprisonment." (paragraph 52)
"for the purpose of preventing the commission by him of further offences and securing his rehabilitation."
The punitive aspect of the sentence has clearly been dealt with in such cases by the custodial term. As it was put by the Sentencing Advisory Panel in its Advice on Extended Sentences:
"the length of the extension period is not designed to reflect the seriousness of the offence for which the offender has been sentenced. It is a measure designed to provide greater protection for the public from the commission of further offences by the offender." (paragraph 44)
The Second Issue: The Interpretation of Section 44A(4)
"the Board shall direct the prisoner's release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)."
"so far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with Convention rights".
He found it possible to interpret section 44A in such a way that the Board was obliged to conclude that detention was no longer necessary for the protection of the public unless it was positively satisfied that detention was necessary in the public interest. As a result he made the second declaration set out at paragraph 8 of this judgment.
"I doubt whether there is in truth a burden of proof on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the Board to consider all the available material and form a judgment."
" there is in my view a distinction between on the one hand the Board being required to order his release if satisfied that it is no longer necessary to detain the prisoner, which is how the legislation is framed; and on the other the Board being required to release unless satisfied that it is necessary to detain the prisoner, which is how Mr. Fitzgerald says it ought to be framed in order to comply with Article 5.1. The logic of Ms. Steyn's argument, as she was constrained to accept, is that either formulation would have precisely the same effect. I do not accept that. In my view there is a clear distinction between the two formulations, notwithstanding that in practice it is likely to be of little significance which is adopted. As the provision stands the default position is that detention will continue unless the Board is satisfied that this is not necessary. If after hearing all the evidence the Board remains genuinely unsure whether the prisoner needs to be detained or not, it must on the ordinary construction of section 44A continue his detention. On the alternative formulation the prisoner in that situation would be at liberty (albeit on licence.)"
I respectfully agree.
"does not consider that such a test may be said to be based on grounds inconsistent with the objectives of the sentencing court so as to constitute a violation of Article 5(1)(a) of the Convention."
Mr Singh points to the similarity in the test to be applied by the Parole Board in that situation and the one set out in section 44A(4) and argues that it follows that the wording of the latter is not in conflict with Article 5. The respondent in the present case has been convicted of an offence and has been sentenced in a manner which recognised that there was a need to protect the public. In such circumstances there is no reason why the State should not be entitled to err on the side of caution.
"There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who once has taken life with the intent necessary for murder, to prefer the latter in case of doubt."
This demonstrates, say the appellants, that if there is doubt as to the risk which an offender poses, it is reasonable and not in conflict with Article 5 to resolve the doubt in favour of public protection.
"In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed there would be no power at that stage to detain the prisoner in custody for that period. The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails. The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty, "
"That it is however for the authorities to prove that an individual satisfies the conditions for compulsory detention, rather than the converse, may be regarded as implicit in the case law."
The Third Issue: Was Hearsay Evidence Properly Admitted?
" during your time at the hostel, you frequently returned to the hostel under the influence of alcohol in breach of condition (ix) of your licence, were aggressive towards other inmates and members of staff, showed no respect for rules of the hostel and eventually were dismissed from employment because of drunkenness."
It was accepted by the respondent that he had lost his job, but he disputed that that was because of drunkenness and he also disputed having been aggressive towards other inmates of the hostel. The witnesses who dealt with this at the hearing could not give first-hand evidence about those matters.
"characteristics pertaining to his personality and level of mentality are of importance in deciding on his dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representatives and the possibility of calling and questioning witnesses. " (paragraph 60)
"(a) is not likely to surrender to custody, or
(b) has broken or is likely to break any condition of his bail."
Latham LJ took the view that this required an assessment of the relevant risk, and that the material on which a justice was entitled in domestic law to come to his opinion was not restricted to admissible evidence in the strict sense: paragraphs 39 and 41. He then added this:
"What undoubtedly is necessary, is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertion at the one end of the spectrum which may not have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on, and answer that material. If that material includes evidence from a witness, who gives oral testimony, clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion."
Mr Justice Munby:
Lord Justice Ward: