England and Wales High Court (Administrative Court) Decisions

West, R (on the application of) v Parole Board [2002] EWHC 769 (Admin) (26th April, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 April 2002

1. Mr Justice Turner: This application for judicial review challenges the decision of the Parole Board not to recommend the release of the claimant following his recall after his release on licence at the half way point in his sentence of imprisonment of three years, following his conviction and sentence for an offence of affray on 27 October 2000. After allowing for time served prior to sentence, the claimant was released from prison on 6 August 2001. The date of revocation of the licence by the Secretary of State was 22 August 2001. It was against the revocation of his licence that the claimant appealed to the Parole Board which rejected the appeal on 3 October 2001.
2. The challenges to the decision are based on alleged failure by the Home Secretary to comply with Articles 5 and 6 of the European Convention on Human Rights. It was respectively the contention advanced on the claimant’s behalf that the lawfulness of the detention should have been reviewed by a court before the claimant was ordered to be returned to prison. Alternatively or cumulatively, the process which led to the recall amounted to the determination of a criminal charge, or the resulting committal to prison amounted to an infringement of the claimant’s right to liberty such as to engage the provisions of Article 6 of the Convention. Accordingly there should, at the least, have been an oral hearing into the allegations which led to the decision to order the claimant’s recall.
3. The position of the Home Secretary was that while there was a power which enabled him to order an oral hearing before an order for recall was made, it was merely a power which he was not obliged to exercise in every case. His decision not to order such a hearing in the present case was not susceptible to effective challenge. It was, further, the position of the Home Secretary that properly understood, neither Article 5 nor 6 were engaged on the facts of this case. The critical feature of each was that where, as here, there had been a determinate sentence, that was the matter which satisfied the provisions of the Articles in question. Neither had any application, and so were not engaged, in a case such as the present in which administrative recall was the event which gave rise to the complaint.
4. The statutory framework is of importance and must be set out. The Act which is principally in play is the Criminal Justice Act 1991, as amended by The Crime (Disorder) Act 1998. Section 33(1)(b) makes it the duty of the Secretary of State to release a short term prisoner, that is one who is sentenced to a term of less than four years, and who has been sentenced to a term of twelve months or more to release him on licence once he has served one-half of his sentence. Section 37(1) of the Act provides that where a prisoner has been released on licence, the licence is to remain in force until the date on which, but for the release, he would have served three-quarters of the sentence. By section 37(4), a person released on licence is required to comply with the provisions of his licence, including an obligation as to supervision by a probation officer, as may be specified in the licence.
5. Section 38 of the Act, in its original form, provided that a short term prisoner who was released on licence under the Act and who failed to comply with any of the conditions of his licence was liable on conviction to a fine on level 3 on the standard scale. Whether or not subjected to any other penalty a magistrates’ court before which a person was so convicted had power to suspend the licence for a period up to six months and order him to be returned to prison for the period of the suspension of the licence. Under section 103(2) of the Act of 1998, section 38 of the Act of 1991 ceased to be of any effect. Thus, there was apparently removed, from the statutory scheme relating to short term prisoners on release, the element of the commission of a crime consequent on a failure to comply with the provisions of the licence. The effect of this change was to assimilate the position of short term prisoners released on licence with that of long term prisoners so that both are provided for under the provisions of section 39 of the Act of 1991. It is to that section, as amended by section 103(3) of the Act of 1998, that it is now necessary to refer.
6. Section 39 now applies to short term as well as to the long term prisoners to which alone, for present purposes, it formerly used to apply. The consequence so far as the present case is concerned is that by sub-section (2) the Secretary of State is, in the defined circumstances, empowered to revoke a licence and order the recall to prison of any prisoner without the recommendation of the parole Board. Subsection (3) enables a person so recalled to make written representations and gives him an entitlement to reasons for his recall. Sub-section(4) requires the Secretary of State to refer to the Parole Board the case of a person recalled either by the Secretary of State of his own initiative, sub-section (2), or on the recommendation of the Board, sub-section (1), who makes representations about his recall under sub-section (3). The section then provides that

(5) Where on a reference under sub-section (4) above the Board recommends in the case of any other person his immediate release on licence under this section the Secretary of State shall give immediate effect to the recommendation.

(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.

7. The reference to ‘recommendations’ in section 39 gave rise to a submission which turned on the distinction between that word and ‘directions’ in contradistinction to the former. It was pointed out in course of argument that section 32 of the Act of 1991 draws a distinction between the two words and makes provision in the case of ‘recommendations’ for consideration of any documents given to it by the Secretary of State and ‘any other oral or written information obtained by the Board’ and, in the case of ‘directions’ ‘consideration of all such evidence as may be adduced before it’. The argument was to the effect that in cases where the Board was empowered to give directions, there was a requirement to have an oral hearing in contrast to the position where a recommendation was made when there was a power, as opposed to a duty, to hold an oral hearing. It is convenient to dispose of this isolated point at this early stage.
8. That the words of the statute are as in the submission, is not in doubt. But this is, in my judgment, far too technical a manner in which to approach the proper interpretation of a statute. The argument relies on the unsupported assumption that the adduction of evidence is only compatible with the holding of an oral hearing. Simply so stated the point does not stand up to cursory examination. Evidence can as well be adduced in the course of a written hearing as when the hearing is oral.
9. The history of the case must now be further set out. As already noted, the claimant was released on licence on 6 August 2001. The licence contained a number of routine provisions but also describing the objectives of the supervision to which he was to be subject as being

To (a) protect the public, (b) prevent re-offending and (c) achieve (his) successful integration into the community.

It further required the claimant to

i keep in touch with (his) supervising officer in accordance with any reasonable instructions

iii live where reasonably approved by your supervising officer …

vi be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent (him) from re-offending and secure (his) successful re-integration into the community;

10. The licence also drew attention to the position if the claimant failed to comply with its provisions, namely revocation of the licence and recall to custody.
11. On 16 August a senior probation officer made a recommendation in the following terms

Mr West is assessed as posing a high risk to the public on account of a history of substance misuse/mental disorder and lack of support in the community coupled with a record of violence and self harm. On release, he went to stay with his father … in the absence of more suitable provision for his needs. On 14 August, I received a telephone call from Islington Social Services who reported an alleged incident of assault against his former partner and criminal damage by Mr West. The victim did not wish to prosecute and when further questioned neither confirmed nor denied an incident took place. I have today spoken to the manager of the hostel where the incident took place and he confirmed that a door had been kicked in which it was suspected was carried out by Justin West who had been observed drinking at the premises. There is no corroborative evidence in view of his partner’s reluctance. They have issued Mr West with a letter expressing concern about his conduct and asking him to stay away from the hostel.

Recommendation: This is a worrying development, giving the risks posed by Mr West and the possibility of recall must be a consideration.

12. This recommendation was endorsed by the Assistant Chief Probation Officer as follows:

Since (the earlier) report, Mr West has not kept his appointment with his supervising officer … today. Also Mr Stevens has learned from Mr West’s family that they are concerned that he has not been staying regularly at his address and there is some indication that he has returned to using crack.

Given the background concerns regarding the risk of violent behaviour by Mr West, I would recommend that the licence be revoked on an urgent basis. The grounds are breach of condition 5 i (failure to keep in touch with supervising officer) and 5 vi (good behaviour).

13. On 22 August 2001, the Secretary of State revoked the licence and provided reasons which, in addition to the breaches of 5 i and 5 vi included 5 iii asserting a failure to live where reasonably approved. The notice concluded:

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.

14. Under section 32(6) of the Act of 1991, the Secretary of State issued Directions to the Parole Board concerning the recall of short term prisoners which, so far as presently material, were in the following terms;

1. In deciding whether or not to recommend the recall of a short term prisoner released on licence … the Parole Board shall consider whether the prisoner’s continued liberty … would present an unacceptable risk to the public of further offences being committed.

2. In considering this issue, the Board shall, in particular, take into account-

(a) whether the prisoner is likely to commit further offences; and

(b) whether the prisoner has failed to comply with one or more of his licence conditions or might be likely to do so in future.

15. On 27 September 2001, the claimant having already been returned to custody, his solicitor wrote making extensive representations why that should not have happened and in effect seeking a review of the decision to have done so. The answers to the allegations contained within the decision of recall constituted ‘confession and avoidance’ of each. The letter went on to point out that there were a number of issues of fact which were in dispute and suggested that there should be an oral hearing before the Board at which witnesses could give their evidence on oath. There was a reply by the Prison Service which stated that the representations had been considered and rejected by the Parole Board under section 39(4) of the Act of 1991. The reasons were attached and were to the following effect:

The Panel has carefully considered the representations …. He has accepted that he has missed one appointment and that he kicked a door in at the hostel where his ex-partner was staying. His reasons for his behaviour are noted. However, the panel does not accept his explanations. There were options open to him to deal with the situation properly and effectively. It is noted that he had been seen drinking at the hostel. (The) Panel accepts that he failed to reside at the approved address, albeit on his own admission for one night only.

The panel rejects Mr West’s representations. In their view his behaviour, taken as a whole, indicates a poor sense of judgment and a propensity for acting in a way which is incompatible with a continuing licence.

Submissions - Article 5 of the Convention

16. The claimant submitted that the Parole Board was obliged by statute to hold an oral hearing or that it should have done so when considering, as in this case, representations against recall. The act of recall falls within the provisions of Article 5 of the Convention and that in a case where there were representations from a prisoner to be considered there had to be a court hearing if the provisions of the Article were to be satisfied. It was further submitted that the recall of a determinate sentence prisoner was an act which affected his civil right to liberty or that such an act amounted to a criminal charge, as the jurisprudence of the Strasbourg Court has determined on a number of previous occasions; see by way of example Adolf v. Austria (1982) 4 EHRR 313. In that case the Court stated that the classification in domestic law of the incident was only the starting point for the determination of the answer to the question whether the process was properly criminal or not. The next factor was the nature of the alleged wrong and, finally the nature of the penalty which might be imposed. Such expressions, it said

Are to be interpreted as having an ‘autonomous meaning in the context of the Convention and not on the basis of the meaning of domestic law. The legislation of the state concerned is certainly relevant, but it provides no more than a starting point in ascertaining whether at any time there was a ‘criminal charge’ against Mr Adolf or he was ‘charged with a criminal charge’. The prominent place held in a democratic society by the right to a fair trial favours a ‘substantive’ rather than a ‘formal’, conception of the ‘charge’ referred to by Article 6; it impels the court to look behind the appearances and examine the realities of the procedure in question in order to determine whether there has been a ‘charge’ within the meaning of Article 6. In particular, the applicant’s situation under domestic legal rules in force has to be examined in the light of the object and purpose of (the article), namely the protection of the rights of defence.

17. It follows that the starting point for the claimant’s submissions on this point had to be that when the Secretary of State releases a prisoner under the early release provisions provided by section 33, the person so released has been released from his sentence, in such a way that his recall to custody constituted an infringement of his civil right to liberty under Article 6. On the issue whether or not recall in these circumstances could amount to a criminal offence, the repealed provisions of section 38 were embraced as showing that breaching the terms of the licence had formerly been a criminal offence and became subject to criminal sanctions including the power to order the return to custody for a period not exceeding six months; contrast the position when the Secretary of State now orders the revocation of the licence which will be for the full term of the sentence remaining up to the three-quarters point.
18. The submission was then made that, albeit detention after conviction by a competent court was expressly recognised by Article 5 as permissible, the decision to recall was a separate or fresh decision which was caught by the provisions of the Article. Once again, it is to be noted that the premise for this submission has to be that release under section 33 is a release from custody and that the status of the person so released is that he then enjoys a state in which he is no longer ‘deprived of his liberty’. It was further submitted that the Home Secretary could not bring himself within any of the sub-clauses of Article 5.1, accordingly the claimant should not have been returned to custody except under a ‘procedure prescribed by the law’. Similarly, it was contended that the claimant was entitled to take proceedings by which the lawfulness of his detention could be decided speedily by a court; Article 5.4. It will again be recognised that the starting point for this argument is precisely the same as for the other submissions on Article 5.

Article 6 of the Convention

19. The principal submission was that recall to prison deprived the claimant of his right to liberty. The claimant was, therefore, entitled to a ‘fair trial’ which manifestly the proceedings of the Parole Board were not. Here again, it will be noted that the starting point for the argument is identical to that advanced under Article 5 videlicet the claimant is to be treated as a person whose liberty is no longer compromised by the prison sentence from which he had been released. There was a second limb to this submission which involved the proposition that the order of recall itself determined the claimant’s civil rights. As it was put in the skeleton argument:

It may be that his liberty was conditional upon his compliance with the terms of his release; but the decision that he did not meet those conditions terminated that liberty, and so amounted to a determination of a civil right.

An oral hearing

20. The submission was that since the determination of the Parole Board required it to decide an issue of credibility this could only efficaciously be achieved through the medium of an oral hearing. There was no indication in any of the papers that the Parole Board ever gave consideration to the need for such a hearing. Alternatively, if the decision was properly to be based on an issue of risk assessment, it would still have been necessary for there to be an oral hearing to determine the factual basis upon which the risk could be assessed. In support of this submission reference was made to the unreported decision of Laws J (as he then was) in R v. Secretary of State ex parte Higgins [CO1598/98] when he quashed the decision of the Parole Board in circumstances where there had been a misconception as to the true nature of the offence and sentence for the offence in respect of which the applicant had been held in prison. In the course of his judgment Laws J referred to the fact that the Board had failed to ascertain the nature and circumstances of the original offence and that it was, accordingly, in no position ‘consonantly with their duty under the Secretary of State’s directions, to assume that such matters in the report represented in effect all the circumstances of the conspiracy offence’ He went on to conclude that although there might have been little more to discover there might have been facts which remained to be discovered. It was for that reason that he decided to quash the decision of the Board.

Inadequate reasons

21. The simple proposition was that the Board’s reasons for not accepting the claimant’s explanations for his conduct and deciding the case in a sense adverse to him were insufficient in the light of the fact that there were disputed issues of fact. Finally it was said that the decision to order recall for the balance of the relevant part of the sentence (ten months) was disproportionate to the gravity of the conduct alleged against the claimant. A warning would have been sufficient.

The response - The Convention points

22. The short point taken was that, domestic jurisprudence following that of the Strasbourg Court, recall after release from a determinate sentence on licence was an administrative act which engaged neither Article 5 nor 6 of the ECHR; see by way of example the case of Banks v. Secretary of State for the Home Department [2002] EWHC 381 (Admin). The rationale for this approach is to be found in the fact that, since the conviction and sentencing processes are both compliant with those Articles, no fresh situation was created by the licensing process which meant that it was again necessary to engage with either of those Articles. In Banks, it was held that administrative recall neither amounted to the bringing of a criminal charge nor the determination of civil rights or obligations.
23. To the like effect was the earlier case of Akhtar v. Secretary of State for the Home Department [2001] EWHC Admin 38. There it was decided that recall of a prisoner by the exercise of the Secretary of State’s powers was the exercise of an administrative discretion and was not an act which was concerned with punishment. If that was the position, then neither Articles 5 nor 6 were engaged. Such was the view robustly, as I respectfully think, expressed by Simon Brown LJ in Banks v. Secretary of State for the Home Department [2002] EWHC 381 (Admin) when he said at paragraph 6

Where detention follows conviction and a determinate sentence and where, as here, the sentence is based, as plainly this was, on the seriousness of the offence, Article 5.4 is satisfied by the original trial process and any appeal. If authority were needed for this proposition – and in my judgment it is not – it can be found in the recent decision of the Outer House in Varey v. Scottish Ministers, unreported 11^th August 2000. The fact that Lady Paton there appears to have equated mandatory life sentences with determinate sentences, no doubt understandable in the light of current Strasbourg jurisprudence – although that may shortly change – cannot avail the applicant in the circumstances of this case. Nor in my judgment Article 6 any application to the case, least of all that part of it which concerns the determination of a criminal charge. As this court said in R v. HMP Newhall ex parte Akhtar [2001] EWHC Admin 175

… the purpose of the administrative recall under section 39 of the 1991 Act is not penal in character, as explained in R v. Sharkey [2001] CrAppR 409; its purpose is to protect the public from any risk of re-offending.

7. Nor in my judgment, does this process, rightly described there as one of “administrative recall”, involve the determination of civil rights and obligations within the meaning of Article 6.1. I recognise, of course, that in the period immediately before the 1998 Act came into full force, Elias J appears to have contemplated to the contrary in refusing leave in R v. Secretary of State for the Home Department ex parte Mitchell, unreported 30^th November 1999, but understanding of the Convention has since moved on and I disagree. In any event, even if Article 6 were to apply here, I for my part, see no sound basis for regarding the section 39 procedure as incompatible. It appears to me on the contrary to be entirely fair, both as a process and indeed in its application to the facts of this case.

24. In Sharkey (above), Lord Bingham CJ, as he then was, had said

It is in our judgment plain that this section (39 of the Act of 1991) is directed to the protection of the public against risk. Under sub-section (2) the Secretary of State may revoke the licence of a person released on licence and recall that person to prison without a recommendation of the Parole Board only if it appears to be expedient in the public interest to do so before a recommendation of the Parole Board is practicable. Otherwise his power under the section is dependent [as in the instant case], and even where he acts of his own motion under sub-section (2), it is necessary that the matter be referred to the Board. Thus under either of the available procedures, the Parole Board monitors the propriety of the revocation and recall. It is not necessary that the person shall have committed, or be suspected of having committed, any further offence, for these two powers to be invoked. It is no part of the Parole Board’s remit to decide what punishment any defendant should undergo. Its concern is with the protection of the public against risk.

25. In concluding his observations in Akhtar, Lord Woolf CJ recognised that the purpose of the court’s powers of sentence’ on the one hand, and the exercise by the Secretary of State of his power to order recall, on the other, each had a separate purpose, although there was scope for overlap between them.
26. The jurisprudence upon which the Secretary of State relied was consonant with that of the Strasbourg Court as exemplified in Aldrian v. Austria (Application no. 16266/90).
27. Moreover, to the extent that the claimant was inviting the present court to disregard the line of domestic and Strasbourg cases and proceeding by the route outlined in Engel (above), that is by identifying the criteria of (a). categorisation according to domestic law (b). the nature of the offence and (c). the severity of the imposed penalty the decision in Han v. Commissioners of Customs and Excise [2001] 1 WLR 2253 was illuminating. Potter LJ, in giving the leading judgment said at p2273

[65] It seems clear from the case law above cited that in considering the three criteria routinely applied by the Strasbourg Court for the purpose of determining whether the applicant is the subject of a “criminal charge”, the first criterion, namely the categorisation of the allegation in domestic law, is no more than a starting point for the classification, and is not decisive of the nature of the allegation. If the offence the subject of the allegation is not criminalised by the national law, the court determines whether it is none the less criminal in character for the purposes of Article 6 by proceeding to the second and third criteria, namely the nature of the offence and the severity of the penalty which it invokes. As stated in Lauko v, Slovakia Reports of Judgments and Decisions 1998-=VI, p2429, the second and third criteria are alternative rather than cumulative. However, that is not an approach which appears to have been adopted in practice and, as also stated in Lauko v. Slovakia a cumulative approach may be adopted where the analysis of each criterion does not lead to a clear conclusion.

[66] Under the second criterion, the court considers whether or not, under the law concerned, the “offence” is one which applies generally to the public at large or is restricted to a specific group. If the former, then despite its “decriminalisation” by the national law, it is apt to be regarded as criminal. Further, if the punitive and deterrent penalty ids attached, it is likely to be regarded as criminal in character, even in case where the penalty is in the nature of a fine rather than imprisonment. On the other hand, where the offence is limited to a restricted group, as is generally the case in relation to disciplinary offences, the court is unlikely to classify a charge under the applicable disciplinary or regulatory code, at least unless it involves or may lead to a loss of liberty.

28. Seeking to apply these principles to the circumstances of this case, it was submitted that an act of administrative recall did not amount in ECHR law to the making of a criminal charge. This is for the reasons that (a) the domestic classification of recall was plainly civil, (b) the triggering event was breach of licence conditions and need not amount to the commission of a criminal offence and (c) no penalty is imposed in the sense that recall is just that and there is no (fresh) deprivation of liberty; the decision is taken on the basis of the perception of risk to the public by endeavouring to prevent re-offending.

Conclusion

29. The approach to the resolution of the issues in this case, which has been adopted by the claimant, suffers from one major and fatal flaw. It is premised on the proposition that the decision to recall was issued against a person who was untainted by the currency of a sentence of imprisonment upon him, and that the object of recall was the imposition of fresh criminal sanction for some supposed conduct of his which infringed some provision of the general law. Properly analysed, the order of recall did none of these things.
30. It will be recalled that in giving directions to the Parole Board in relation to matters which it is required to take into account when discharging any of its functions under Part II of the Act of 1991 ‘Early Release of Prisoners’, the Secretary of State himself is required to have regard to the considerations of (a) the need to protect the public from serious harm from offenders and (b) the desirability of preventing the commission of further offences by prisoners released early from their sentences and to securing the rehabilitation of such persons; see section 32(6). Moreover, the detention which is authorised under section 39 is a detention “in pursuance of his sentence”; see section 39(6).
31. The prisoner’s trial and sentence will have been in conformity with Articles 5 and 6 of the ECHR. Even without reference to any of the domestic and Strasbourg Court jurisprudence which has been reviewed during the course of counsel’s written and oral submissions, and to some extent above, it is hard to understand the basis of the challenge which, in its starkest form, ignores the very fact that the sentence to which the claimant is subject was passed in accordance with both domestic and ECHR requirements. 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.
32. 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 circumstances arise in which the provisions of section 32(6) are met. I gladly, and respectfully, embrace the approach of Simon Brown LJ in Banks (above).
33. Even were I to be wrong about this, performing the analysis of the nature of the process to which the claimant was exposed as Strasbourg jurisprudence requires, I should still be of the same opinion. In terms of categorisation of the process which has led to the claimant’s recall, there can be no doubt that this was not a “criminal charge” according to domestic law. Furthermore, the “offence” was one which was restricted not just to a limited group of people, but was restricted to the claimant alone. As to the final criterion, it will not have escaped attention that no additional penalty has been imposed, the claimant will still be released at the three-quarter point of his sentence, by definition within the period of the original term. Article 5 was not thus engaged.
34. Some criticism was made of the actual decision making process. There was, in my judgment no requirement, albeit there was a power, to hold an oral hearing. For the decision which the parole Board was called upon to perform, it was quite unnecessary for them to resolve all the issues of fact which the claimant’s solicitors had raised in their letter of representations. It had been submitted that on the basis of the qualified admissions which had been made on the claimant’s behalf, the Board could not have been satisfied that his conduct following his release justified the decision to recall him to prison.
35. This criticism must be rejected. For there to have been three incidents within the space of eight to ten days of his release, all of which called for a detailed refutation which was not forthcoming, was an indication which the Board was entitled to treat as more than sufficient to uphold the order of recall of the claimant by the Secretary of State.

Result

36. For the above reasons this application for judicial review must be refused.