England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
(The Hon. Mr Justice Elias)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th December 2003

Lord Justice Keene:

Introduction

1. The principal issue raised by this appeal is how Article 5 of the European Convention on Human Rights affects the detention of an offender who has been recalled to prison while on licence under an extended sentence passed under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 ("PCCA"). Article 5 embodies the right to liberty and security of person. Section 85 of the PCCA enables a court to impose in cases of a sexual or violent offence a sentence which consists of a custodial term and an "extension period" during which the offender will be on licence beyond the normal licence period. It will be necessary to look in due course at the detailed provisions of Article 5 and section 85. The appeal is brought by the Secretary of State for the Home Department, with the support of the Parole Board which, though strictly speaking a respondent, I shall for convenience refer to as one of the appellants. In this judgment "the respondent" means Mr Sim.

The Factual Background

2. The respondent was convicted of two offences of indecent assault and the offence of indecency with a child under 14, the victim of all three offences being the 7 year old daughter of a friend. On 17 February 2000 he was sentenced to an extended sentence under what was then section 58 of the Crime and Disorder Act 1998, now section 85 of the PCCA. The sentence consisted of a custodial term of 2 ½ years and an extension period of 5 years. The judge in passing sentence did not expressly explain why he was imposing an extended sentence, merely observing that the respondent had a bad record, including robbery but had no previous convictions for any kind of sexual offences.
3. The respondent was released from prison on 11 January 2001. This was because he had then served one-half of the custodial sentence, once the time spent in custody prior to trial was taken into account. For the purposes of section 33(1) of the Criminal Justice Act 1991 ("the 1991 Act") he was to be treated as a short-term prisoner, that is to say one serving a sentence of imprisonment for a term of less than 4 years: see section 44(2) and (7) of the 1991 Act. Consequently the Secretary of State was under a duty to release him on licence at the half-way stage in his custodial term.
4. The terms of his licence placed the respondent under supervision until his licence expired on 27 August 2006 and required him to comply with certain conditions. Condition vi was that he be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of the supervision, which were to protect the public, prevent him from re-offending and secure his successful reintegration into the community. Other conditions required him to reside initially at Basildon Bail Hostel and not leave to live elsewhere without prior approval of his supervising officer and not to return to Hostel premises under the influence of alcohol.
5. However, on 17 July 2001 his supervising officer requested his recall to custody. As Elias J. accurately put it, three matters were identified as the grounds for this request (the respondent being the claimant in the proceedings below):

"… 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.

6. It is not in dispute that, by the date of the hearing on 15 April 2002, the respondent was no longer suspected of the indecent exposure to which the Secretary of State had referred in his recall decision. Moreover, in its decision letter of 17 April 2002 the Parole Board accepted that his absence from the Hostel on 14 July 2001 might be excused as a result of the circumstances existing at the time. But it nonetheless concluded that it was not satisfied that it was no longer necessary for the protection of the public that he should be confined. That double negative formulation was the result of the statutory wording of section 44A of the 1991 Act, which by subsection (4) provides that on such a reference to it

"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)

7. The Board set out its reasons for reaching its conclusions in the following terms:

"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."

8. The respondent challenged that decision on a number of grounds before Elias J. Some of those grounds no longer give rise to any live issue. In his judgment Elias J. decided that, on the facts of this case and in the light of his conclusions of law on some of the issues, there was no basis for quashing the Parole Board's decision, which was justifiable and involved no unfairness. However, as a result of his conclusions on some of the legal submissions made to him, he made two declarations. As set out in his order, they read as follows:

"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.

9. Since the decision at first instance, the respondent has in fact been released from prison as the result of a further hearing before the Parole Board. However, the Secretary of State is properly concerned at the existence of two declarations of law of general applicability which he regards as wrongly made, and neither party has suggested that the issues raised are for this or any other reason to be regarded as academic. In my judgment it is entirely right that this court should consider and pronounce on the issues raised, which are of some considerable importance.

The First Issue: Does Article 5(4) Apply?

10. The first and main issue raised is whether Article 5(4) of the Convention applies at all at the stage when it is decided to continue to detain someone who was given an extended sentence under section 85 of the PCCA and whose licence during the extension period has been revoked. The relevant parts of Article 5 of the European Convention are the following:

"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."

11. There is an obvious inter-relationship between Article 5(1) and Article 5(4) which has been recognised for very many years. Article 5(1) embodies the right to liberty and security of person and Article 5(4) creates the necessary associated right for any person who is under some form of detention to be able to challenge the lawfulness of that detention, both under domestic law and under Strasbourg jurisprudence. That review of the lawfulness of the detention must be by a court, that it is to say by a body which is judicial in character, and the review must be speedy, as was emphasised by the European Commission of Human Rights in Zamir –v- United Kingdom [1983] 40 DR 42. But there are a number of exceptions to the right to liberty and security of person, of which the first is "the lawful detention of a person after conviction by a competent court": Article 5(1)(a). As was said by Lord Hope in R (Giles) –v- Parole Board [2003] UKHL 42; [2003] 3 WLR 736 at 745, paragraph 25:

"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) [1971] 1 EHRR 373, 407 at paragraph 76.

12. This may seem to be straightforward. However, over the years a number of issues have arisen over the involvement of the Secretary of State, a member of the executive, in decisions about the release on licence of those serving indeterminate sentences and in decisions about the early release on licence and the recall to prison of those serving determinate sentences. Under Part II of the 1991 Act, the Secretary of State has the power and, after a certain period of the sentence of imprisonment has been served, the duty to release prisoners serving determinate sentences: see sections 33 to 36. The present appeal is concerned with the system of recall to prison of persons on licence, a matter which is principally dealt with by section 39. In all cases it is the Secretary of State who has the power to revoke the licence. He does so either because that has been recommended by the Parole Board (section 39(1)) or because it appears to him to be "expedient in the public interest" to do so before a recommendation by the Parole Board is practicable (section 39(2)). However, in the latter case the Secretary of State must refer the case to the Parole Board subsequently. If on any reference to it the Parole Board recommends the prisoner's immediate release on licence, the Secretary of State must give effect to the recommendation: section 39(5). In reality, therefore, a decision not to release a person who has been recalled to prison after revocation of his licence can only be made by the Parole Board.
13. That remains the position with those given an extended sentence under section 85 of the PCCA, such as the respondent, who have been recalled to prison for breach of their licence. If the Parole Board directs his release, it is the Secretary of State's duty to release him on licence: section 44A(5) of the 1991 Act. Moreover, section 44A(2) enables such a prisoner to require the Secretary of State to refer his case to the Parole Board at any time, unless there has been a previous reference disposed of within the period of one year before: see section 44A(3). In other words, provision is made for such a person to be able to have his case reviewed by the Parole Board at yearly intervals.
14. Since the Parole Board is a judicial body (see Giles, paragraph 10, per Lord Bingham of Cornhill), independent of the executive and impartial in the performance of its duties (Weeks –v- United Kingdom [1988] 10 EHRR 293, paragraph 62), it might well be thought that these provisions in sections 44A referred to above go a long way to satisfying Article 5(4) of the European Convention in any event. That, it seems, is what they were intended to do. The Guidance issued by the Home Office on extended sentences (originally introduced by sections 58 to 60 of the Crime and Disorder Act 1998) expressly says of section 44A:

"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)

15. It might therefore be wondered why the Secretary of State in the present appeal is anxious to contend that Article 5(4) does not apply to those given extended sentences whose licences have been revoked. The answer appears to be that, if Article 5(4), does not apply in such cases, there can be no attack on section 44A(4), already set out earlier at paragraph 6 of this judgment. The alleged presumption in section 44A(4) against release from prison could not be the subject of criticism based on Article 5(4). It follows that this first issue in the appeal, as to the applicability or otherwise of Article 5(4), is really a stepping stone to the second issue, though of course nonetheless important in that role.
16. Before coming to the wording of section 85 of the PCCA, which now provides for extended sentences, it is necessary to remind oneself of the different types of sentence involving custody which may be imposed for violent or sexual offences, because this will assist in an understanding of the decided cases on Article 5(4), particularly those dealt with by the English courts. Apart from a custodial sentence for a term which is commensurate with the seriousness of the offence, alone or combined with other associated offences (section 80(2)(a) of the PCCA), a court may in certain circumstances if the offence is a violent or sexual offence pass a longer than commensurate custodial sentence under section 80(2)(b). The court must, however, be of the opinion that the longer term is necessary to protect the public from serious harm from the offender. This was the type of sentence which had been passed on the claimant in the case of Giles. Such a prisoner may be released early from his sentence of imprisonment under the normal provisions of section 33 to 36 of the 1991 Act.
17. In the case of those convicted of a sexual offence committed before 30 September 1998, a court may when passing a custodial sentence order in certain circumstances that the offender, as and when released on licence, remain on licence until the end of the sentence, rather than until the three-quarters point when the licence would otherwise expire. This form of order was contained in the original version of section 44 of the 1991 Act and was often conveniently described as an "extended licence". It could only be imposed where the court had regard to the need to protect the public from serious harm and the desirability of preventing the commission of further offences by the offender and securing his rehabilitation. It was in effect replaced, at least in respect of sexual offences committed on or after 30 September 1998, by the "extended sentence" under section 85 of the PCCA, with which this appeal is concerned, but it is relevant because it is the form of sentence which was involved in the recent Court of Appeal decision about Article 5(4), R (Smith) –v- Parole Board [2003] EWCA Civ 1269. As with commensurate and longer than commensurate sentences, the period of the licence, and consequently the period within which decisions about recall and non-release after recall are made, cannot extend beyond the length of the term of imprisonment passed by the court.
18. Section 85 of the PCCA is the provision used by the sentencing judge in the present case. The relevant parts of it for present purposes are as follows:

"(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."

19. It is to be observed that the extended sentence, that is the aggregate of the custodial term and the extension period, is described in sub-section (2) as "a custodial sentence". However, with a limited exception, the passing of an extended sentence does not affect the potential early release dates of the prisoner under Part II of the 1991 Act: see section 44(2) of that Act. In that respect it differs from a longer than commensurate sentence. It is the custodial term of the extended sentence which determines the potential early release dates from custody.
20. The submission advanced on behalf both of the Secretary of State and of the Parole Board is that the detention of a prisoner recalled during such an extended licence period is covered by the original sentence of the court and so falls within Article 5(1)(a). The passing of an extended sentence under section 85 by a "competent court" provides the lawful authority for the detention, not merely during the custodial term but also during the whole of the extension period. It is said that the court has decided that the offender shall be liable to recall to prison during a period specified by the court, if he breaks his licence conditions. That period is not uncertain but is one fixed by the court.
21. Mr Singh, Q.C., who appears for the Secretary of State, concedes that if this is right, then the Parole Board as a judicial body need not be involved in the decision over whether such a recalled prisoner should be released or not. But he submits that merely because the United Kingdom has chosen to set up such an arrangement does not mean that it is required by Article 5. Although he draws attention to the wording of section 39(6) of the 1991 Act,

"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.

22. Great reliance is placed on behalf of the Secretary of State on the decisions in Giles and in Smith. In particular, it is argued that, although Giles was concerned with a longer than commensurate sentence, the principles endorsed by the House of Lords clearly indicate that detention during the licence period of an extended sentence does not require Article 5(4) review. As with the longer than commensurate sentence, so here too the length of the sentence is determined by the judge at the time of sentencing and the executive is not given the responsibility for determining when the public interest permits the prisoner's release. The total length of the extended sentence is fixed when sentence is passed, here a period of 7½ years, and so is the date at which the prisoner will have a right to be released on licence, since that is governed by the normal early release provisions. The only matter in doubt when sentence is passed is whether the offender will ever be recalled to prison and, if so, for what part of the remainder of his sentence he will be detained. But that, argues Mr Singh, is true of any prisoner released on licence.
23. Our attention is also drawn to the approach adopted by this court in Smith, where Kennedy LJ said this at paragraph 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."

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.

24. For the respondent, Mr Fitzgerald, Q.C., submits that there is a clear distinction between cases like Giles and Smith on the one hand and cases where an extended sentence under section 85 has been passed. In the former, the court passes a sentence of imprisonment for a period of time, and the executive has the power to allow early release from the detention imposed by the court. In the latter, the court has imposed a specific period of imprisonment and a period where the offender will be on licence, which can be converted by executive decision into imprisonment. The only custodial term imposed by the court under section 85 is the first of the two parts of the sentence. If such an offender is recalled from being on licence, he is not being recalled to serve a period of imprisonment imposed earlier by the court.
25. In this context, the respondent draws our attention to R –v- Nelson [2002] 1 Cr App. R. (S) 134, where the Court of Appeal Criminal Division commented on the purposes of an extended sentence. Giving the judgment of the court, Rose LJ said this:

"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.

26. Mr Fitzgerald recognises that it is the sentencing court which imposes the period during which the licence is extended and that the court must contemplate the possibility that the offender will have his licence revoked during that period and be released from prison. But it is contended that the mere fact that such subsequent detention is a consequence of or arises out of an earlier sentence imposed by a court does not mean that Article 5(4) will not apply. To avoid its application, there must be both a sufficient causal connection between the original conviction and the eventual deprivation of liberty and also an absence of new issues or changing characteristics requiring later assessment. In that context reliance is placed on a number of Strasbourg cases where it has been held that, once the punitive part of a sentence has been served, detention because of the need to protect the public must be periodically reviewed by a court because the dangerousness of the offender is something which may change over time. Certainly it is a feature which is susceptible to change. In Van Droogenbroeck –v- Belgium [1982] 4 EHRR 443, the European Court of Human Rights dealt with a case where the Belgian Minister of Justice was authorised by the sentencing court's decision to detain or release a recidivist once an initial period of imprisonment had been served. The Minister had a wide measure of discretion during a period of ten years, during which time he had to direct his mind to whether there was still a need to protect society from the offender and to seek to reform him.

" '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).

27. The other cases relied on by the respondent are ones dealing with indeterminate sentences, such as a discretionary life sentence (Weeks –v- United Kingdom [1988] 10 EHRR 293) or a mandatory life sentence (Stafford –v- United Kingdom [2002] 35 EHRR 32) or preventive detention of a psychopath for an indefinite time (E –v- Norway [1990] 17 EHRR 30). It is submitted that these establish that where detention is merely authorised, as opposed to ordered, by a court on the ground of danger to the public and that danger may diminish or disappear over time, there will be a breach of Article 5(4) if the assessment of the danger is left to the executive.

Analysis of First Issue

28. The crucial question on this first issue is whether the subsequent detention after recall of a person in the respondent's position can be said to be justified under Article 5(1)(a) because of the original sentence imposed by the court. This is at the heart of the Secretary of State's case and was the basis for the House of Lords' decision in the recent case of Giles. Strasbourg jurisprudence is obviously of great importance in determining this, but that jurisprudence has been carefully analysed in Giles and it is unnecessary to embark on a lengthy review of the Strasbourg authorities. Of course, it has to be borne in mind that Giles was not concerned with a section 85 extended sentence, and the need therefore is to identify the principles established by it rather than to seek to apply the words used in their Lordships' speeches in a mechanistic way. Thus, considerable emphasis was placed by Lord Bingham of Cornhill on the fact that the European authorities requiring review of continued detention by virtue of Article 5(4) concerned indeterminate sentences where the decision to release the prisoner lay with the executive (paragraph 9). In contrast, the appellant in that case had been given a determinate sentence, and the same could of course be said about the present respondent, Mr Sim, in the sense that the overall period of the extended sentence of 7½ years was determined by the court. But, as Lord Bingham himself noted,

"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.

29. The most detailed consideration of the Strasbourg jurisprudence in Giles came from Lord Hope. He noted that the European Court of Human Rights had recognised that those sentenced to discretionary life imprisonment fell into a special category: Weeks. (Since the decision in Stafford, one could indeed make the same point in respect of mandatory life prisoners). In such cases there was a need for a review of detention by a judicial body; but he posed the question:

"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?"

30. Lord Hope emphasised that the European Court's approach was to look beyond the appearances and the language used and concentrate on the realities of the situation: paragraph 37. That suggests that no great weight is to be attached in the present case to the fact that section 85(2) refers to the aggregate of the custodial term and the extension period as "a custodial sentence". More attention needs to be focused on what actually happens in reality when such a sentence is passed.
31. In dealing with the decision in Van Droogenbroeck, Lord Hope drew attention to the "relative indetermination" of the duration of the detention in that case, to the fact that the sentencing court in Belgium did not "order" the detention of recidivists but only "authorised" it, and to the European Court's view that this system

"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)

32. One notes the repeated emphasis on the length of the detention having been fixed by the court in cases where Article 5(4) will not bite. That would seem to be a clear reference to the situation where the court has passed a sentence of imprisonment on the offender which covers the period during which decisions may be made by the executive about early release and recall from early release, the very situation which existed in Giles because the judge had passed a longer than commensurate sentence of imprisonment. The same passage from paragraph 41 of Lord Hope's speech was quoted by Kennedy LJ in Smith at paragraph 21. In that same case Holman J stressed that someone who is released early from a determinate sentence does not have

"the same rights as a person who is not still subject to a sentence of imprisonment." (paragraph 52)

33. One can readily understand the outcome of both Giles and Smith. In both cases the original court had passed a determinate sentence of imprisonment for a term of years which it clearly thought appropriate, albeit that in Giles it was longer than a commensurate term. The issues which arose about Article 5(4) all related to decisions being made about the offender during that term of years for which the court had sentenced him to imprisonment. The same position does not obtain with an extended sentence under section 85, once the custodial term has passed. At that stage no court has sentenced the offender to imprisonment. It has of course "authorised" him to be imprisoned if his licence is properly revoked but that authorisation was a feature which existed in the Van Droogenbroeck case. The European Court of Human Rights in that case expressly distinguished between the situation with which it was dealing there and a system of early release of prisoners from a sentence of imprisonment imposed by a court (my emphasis). The court under section 85 also fixes the ultimate duration of the whole sentence, but that too was a characteristic present in Van Droogenbroeck, where the power of the Minister of Justice to release or detain the offender was limited to 10 years.
34. The purpose of an extended sentence is also of relevance. Section 85(1) indicates that the court may in effect add an extension period on licence where that is required

"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)

35. This very much puts the extension period into the category of cases in which there is a substantial period in the sentence for the protection of the public, during which period there may need to be further assessments of the degree of risk which the offender still represents. That factor has led the Strasbourg Court in cases like Weeks; Hussain –v- United Kingdom [1996] 22 EHRR 1; and Stafford to conclude that new issues may arise during such a period which mean that the continuing or fresh detention of the offender must be subject to continuing supervision as required by Article 5(4). Such judicial supervision will not be required when the original sentencing court has itself imposed a sentence of imprisonment for the whole period in question, even if that term of imprisonment includes a protective element, as in Giles. But if that is not the sentence imposed by that court, the Strasbourg jurisprudence will in my judgment require continuing judicial supervision.
36. In short, when an offender is detained during the extension period of a section 85 sentence, such detention must be subject to review by a judicial body. No court has ordered his detention during that period: prima facie the sentencing court took the view that he could be dealt with in the community during that period. This is the critical factor which distinguishes this situation from that considered in Giles and in Smith, in both of which the court was concerned with detention falling within the term of imprisonment imposed by a competent court. In cases of extended sentences under section 85, it is the executive which decides upon an offender's recall during the extension period, and because that detention has not been ordered by a court it must be supervised by a judicial body. Otherwise there is a danger of an arbitrary decision being made by the executive. As it happens, it is so supervised, because section 44A of the 1991 Act so provides through the mechanism of the Parole Board. Parliament was right to take the view that such judicial supervision of detention during that period was necessary. I conclude that Elias J was right in the conclusion which he reached on this issue.

The Second Issue: The Interpretation of Section 44A(4)

37. This issue only arises if I am right in concluding that Article 5(4) applies to decisions to recall and detain an offender serving a section 85 extended sentence who has been released on licence. Section 44A(4) of the 1991 Act deals with references to the Parole Board in such cases and it is helpful to set out again the crucial part of that sub-section:

"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)."

38. Elias J concluded that this wording on a conventional construction gave rise to a presumption that the prisoner would be detained unless the Board was satisfied to the contrary. He held that, as a matter of fact, the detention of the respondent was not determined as a result of the application of any such presumption, but nonetheless he concluded that such a presumption would be contrary to the provisions of Article 5, because it would not have been shown to the satisfaction of a judicial body at any stage, whether when sentence was passed or on recall, that his detention after recall was necessary. However, the judge took the view that a construction of section 44A(4) compatible with these Convention rights could be arrived at by applying section 3 of the Human Rights Act 1998, the provision which states that

"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.

39. That part of his decision is challenged by the Secretary of State and the Parole Board, though neither of those parties takes the view that, if there is the presumption identified by the judge and if it is incompatible with Convention rights, then the judge was wrong in his approach under section 3 of the Human Rights Act 1998. Neither appellant suggests that a declaration of incompatibility is unavoidable in such circumstances. Both challenge the finding that any such presumption is created by the subsection and both assert that even if there is such a presumption, it would not be incompatible with the Convention.
40. On the first of those aspects, the appellants contend that the subsection is neutral in effect. The Parole Board is not concerned during this process with making a finding of fact so much as assessing the level of risk to the public. Consequently such concepts as burden of proof and presumption are inappropriate. They have no place in risk evaluation.
41. Reliance is placed by the appellants on a number of authorities to support that contention. In particular, Ms. Steyn who took the lead role on this issue refers to a passage from the speech of Lord Bingham in R –v- Lichniak [2002] UKHL 47; [2003] 1AC 903, at paragraph 16, where he was dealing with the situation of mandatory life prisoners:

"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."

42. Like Elias J., I accept that the concept of a burden of proof is inappropriate where one is involved in risk evaluation. But again like the judge, I do not see that that has much bearing on the issue whether section 44A(4) creates a presumption. One has to see what the statutory test set out by that subsection does. It is clear to me that, interpreted in the traditional way, the subsection requires the Parole Board to ask itself whether it is satisfied that confinement of the prisoner is no longer necessary to protect the public. The words "but not otherwise" demonstrate that only in that situation can it direct his release. If the Board's assessment of risk leaves it in doubt about whether continued confinement is necessary, it must decline to direct release. It may well be that such a situation, where it is not satisfied one way or the other but is merely uncertain, will rarely arise, as it did not arise in the present case, but that is nothing to the point.
43. Elias J dealt with this part of the appellant's argument at paragraph 50 of his judgment, in terms which I am happy to adopt:

"… 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.

44. If that is so, is such an interpretation one which is incompatible with Article 5(4)? As a matter of domestic law, it has long been established that the burden of justifying a person's detention lies on the person detaining, as one would expect: Allen –v- Wright [1835] 8 C. and P. 522. A similar approach is embodied in Article 5 of the Convention, which begins with an assertion of everyone's right to liberty. But the appellants place reliance on two decisions. The first is that of the European Commission of Human Rights in Comerford –v- United Kingdom (Application No. 29193/95; 9 April 1997), which concerned an applicant who in 1980 at the age of 16 had been convicted of murder and sentenced to be detained at Her Majesty's pleasure. He was released on licence in 1986, but his licence was subsequently revoked. The relevant statutory provisions required the Parole Board to order his release if it was satisfied that it was no longer necessary to confine him for the protection of the public. The applicant complained that this form of test violated Article 5, but the Commission took account of the objectives of a sentence of detention at Her Majesty's pleasure, namely the need to protect the public, and dismissed the complaint as manifestly ill-founded. It said that it

"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.

45. The other case is Lichniak, again one concerned with prisoners who had been convicted of murder. The two appellants claimed that their mandatory life sentences were contrary to Articles 3 and 5 of the Convention, and in support of this claim pointed out that at the end of the tariff period of a mandatory life sentence it was for the prisoner to show that it was safe to release him, the onus being on him. In dealing with this argument, Lord Bingham of Cornhill said at paragraph 16:

"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.

46. I observe that the European Commission on Human Rights in Comerford asked itself whether the test applied by the Parole Board was inconsistent with the objectives of the sentencing court. In that case it was dealing with an offender who had been convicted of murder and given what was in effect a sentence of life imprisonment. The House of Lords in Lichniak was dealing with a similar situation. One can see that in those circumstances, where the sentencing court has imposed an indeterminate sentence of imprisonment, its objectives may well be seen as wishing to ensure that a person who has committed such a serious crime is not to be released unless and until it can be shown that he no longer presents a danger to the public. But as Elias J pointed out, the objective of an extended sentence under section 85 is very different:

"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, …"

47. Once the prison sentence imposed by the court has been served, one cannot say that the sentencing court had it in mind that the offender should be detained unless it was shown that he was no longer a danger. The presumption implicit in the sentence passed is that during the extension period the offender need not be in custody. Consequently I cannot accept that the approach in Comerford and Lichniak has the result contended for by the appellants. There is an inconsistency between the objective of the sentencing court and the approach which is created by section 44A(4) if interpreted in the ordinary manner.
48. To have a presumption, therefore, that detention is justified after recall during the extension period is contrary to Article 5. No court has decided, prior to the matter being dealt with by the Parole Board, that detention is necessary during that period. The executive will by definition have taken that view, since it has decided to recall the offender, but that is not enough for compliance with Article 5. As Elias J said at paragraph 54, the Board should not be required to start from the premise that the executive's assessment was correct. It is something about which the Parole Board itself should be satisfied.
49. If the redetention of the offender is not something which is to be seen as prima facie necessary because of the original sentence passed on him by the court, then one is driven back to first principles. It is detention which has to be shown to be necessary, not liberty. In Reid –v- United Kingdom [2003] 37 EHRR 9, the European Court of Human Rights noted that there is no direct Convention case law governing what it called the onus of proof in Article 5(4) proceedings, but it went on to say at paragraph 70:

"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."

50. I therefore conclude that a conventional interpretation of section 44A(4) would be incompatible with the Article 5 rights of those detained after recall during the extension period. In that situation, Ms Steyn for the Parole Board submits that the sub-section should be interpreted in a "neutral" way, without a presumption either way, through the application of section 3 of the Human Rights Act, 1998. This, it is said, would be compatible with Article 5 and would do less damage to the statutory language. I am bound to say that I cannot see that such a "neutral" interpretation is possible. What is to be the end result if, in any given case, the Parole Board is left in doubt as to whether detention is necessary to protect the public? Is it to direct release or not? It seems to me that there has to be what Elias J called a "default position" to cover such situations, and if so, it follows from my earlier conclusions that it has to be one expressed in the terms of a presumption in favour of release.
51. All parties agree that the wording of section 44A (4) can be read and given effect to in the way identified by Elias J., through the application of section 3 of the Human Rights Act 1998. He construed the word "necessary" in that provision in a flexible way so that the Board has to be positively satisfied that continued detention is necessary in the public interest if it is to avoid concluding that it is no longer necessary. No argument has been addressed to us to the effect that such a construction is impossible through the use of section 3 of the 1998 Act and in those circumstances I am prepared to accept that such a construction can properly be achieved. It follows that on this second issue concerning section 44A(4) I conclude that the appeal is ill-founded and should be dismissed.

The Third Issue: Was Hearsay Evidence Properly Admitted?

52. There is no dispute between the parties that in principle the Parole Board may take account of hearsay evidence. But in the court below the respondent challenged the lawfulness of the admission of hearsay evidence in the present case at the hearing before the Parole Board, on the basis that it related to matters which he disputed. Having lost on this issue before Elias J., he now seeks to pursue it by way of cross-appeal.
53. The essence of the respondent's argument on that is that both in terms of common law fairness and under Article 5 he should have been able to cross-examine witnesses on the contested matters of fact and, to the extent that he was unable to do so, the evidence in question should not have been taken into account by the Parole Board. Mr Fitzgerald draws attention to that part of the Board's decision of 17 April 2002, where it referred to the considerable body of evidence that

"… 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.

54. Mr Fitzgerald accepts that the Parole Board is engaged in the assessment of risks, but he submits that that process requires an accurate analysis of the underlying facts, before any value judgment can be made. For that proposition he relies on the House of Lords decision in In re H [1996] AC 563, where it was held that an assessment of the future risk of sexual abuse of a child could not be based upon alleged past abuse unless the judge had first established on the balance of probabilities that such past abuse had occurred. Reliance is also placed on the decision in Hussain –v- United Kingdom [1996] 22 EHRR1, where the European Court of Human Rights held that, where a substantial term of imprisonment may be at stake as the result of a Parole Board decision and where

"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)

55. For my part, I do not accept that the European Court in Hussain was seeking to say that, in cases coming before the Parole Board, evidence cannot be taken into account unless a witness who has first-hand knowledge of the matter is called and is available for cross-examination. It must be remembered that, at the time of the Parole Board's decisions in that case, there was no oral hearing at which a prisoner in Mr Hussain's position could be present and at which any oral evidence could be given or challenged. It was that absence of an oral hearing which the European Court was criticising, and the reference to the possibility of calling and questioning witnesses was simply descriptive of the normal processes of an oral hearing. It did not mean that hearsay evidence could not be taken into account.
56. I cannot see that the Strasbourg jurisprudence in fact adds anything of significance to the test of fair procedure which is required by the common law. As Ms Steyn submits, the rules of evidence to be applied in a case are generally regarded in the Strasbourg jurisprudence as a matter for national courts. As to common law fairness, there is considerable authority which establishes that it is not necessarily unfair to admit hearsay evidence, even where the deprivation of liberty is at stake: see R (McKeown) –v- Wirral Borough Magistrates Court [2001] 2 Cr. App. R. 12. In that case the Divisional Court had to consider the position under section 7(5) of the Bail Act 1976, where a justice before whom someone has been brought after arrest for suspected breach of his bail conditions has to grant bail unless of the opinion that that person

"(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."

57. That passage seems to me to be generally applicable to proceedings before the Parole Board when it is assessing risks, especially bearing in mind that recall decisions are not criminal proceedings within the meaning of Article 6: R (West) –v- Parole Board [2002] EWCA Civ 1641; [2003] 1 WLR 705. Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole Board taking such evidence into account. It should normally be sufficient for the Board to bear in mind that that evidence is hearsay and to reflect that factor in the weight which is attached to it. However, like the judge below, I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the individual case.
58. In the present case, I have set out the crucial part of the Parole Board's decision at paragraph 7 of this judgment. It can be seen that the factor put at the forefront of the Board's reasoning was that this offender had declined to take part in any programme of remedial work. It was for that reason that the Board then looked to see if there were other signs of progress and it was therefore in that context that it considered his recent behaviour. He himself gave evidence at the hearing, admitting that he drank three or four pints at times but saying that that would not make him drunk or aggressive, merely cause him to slur his words a bit. It was also clear that he had been given three separate warnings previously about drinking and had not sought to challenge them. So there was undoubtedly reliable evidence that he had returned to the hostel under the influence of drink.
59. In these circumstances there can be no doubt that the Parole Board was entitled to take the view that the respondent had shown no insight into his drinking habits and that he had breached his licence conditions. It was in dispute that he had been aggressive and that his dismissal from his employment was because of his being drunk, but those disputes related only to a part of the total picture. Even without them it could not have been argued that the Board's ultimate conclusion was perverse, particularly since it had had the considerable benefit of hearing from Mr Sim himself. I agree with Elias J that these disputed matters were not the key factors in the decision. In those circumstances I cannot accept that the admission of hearsay evidence about those disputed matters rendered the proceedings unfair or in breach of the respondent's Convention rights.
60. It follows that I would dismiss both the appeals and the cross-appeal.

Mr Justice Munby:

61. I agree

Lord Justice Ward:

62. I also agree

Order:

63. The appeal of the Secretary for the Home Department be dismissed; the cross-appeal of Mr Sim be dismissed.
64. The Secretary of State pay 80% of the costs of Mr Sim in this court, the costs to be assessed on the standard basis if not agreed. Mr Sim's costs to be assessed on the standard basis in accordance with the Community Legal Services (Costs) Regulations 2000 and regulation 107 of the Civil Legal Aid (General) Regulations 1989.
65. Leave to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)