QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of JUSTIN WEST||Claimant|
|- and -|
|THE PAROLE BOARD||Defendant|
JONATAHN CROW and KRISTINA STERN (instructed by The Treasury Solicitor) for the DEFENDANT.
Hearing dates : 11 April 2002
Crown Copyright ©
(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.
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;
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.
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).
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.
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.
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
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.
Article 6 of the Convention
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
The response - The Convention points
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 11th 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  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  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 30th 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.
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.
 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.
 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.