QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN On the application of
|- and -
1. PAROLE BOARD
2. THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Karen Steyn (instructed by the Treasury Solicitor for the Parole Board)
Mr. Nigel Giffin (instructed by The Treasury Solicitor)
Crown Copyright ©
Mr. Justice Elias:
The background to his recall
The hearing before the Parole Board
"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 have 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."
The relevant legislation.
"……the custodial term shall be-
(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or
(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender."
"(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 other wise than under this section ("the custodial term"); and
(b) a further period ("the extension period") for which the offender is to be subject to a 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."
Sexual and violent offences are defined in section 161 of the Act.
"We turn to consider extended sentences with commensurate custodial terms. One purpose of an extended sentence is to reduce the likelihood of reoffending, 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 reoffending 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. Creasey (1994) 15 Cr.App.R. (S.) 671 provides an example, although the option of an extended sentence was not, at that time, available to the Court. The appellant there had a record of convictions for relatively minor indecent assaults, and he pleaded guilty to other comparatively minor offences. The trial judge imposed a longer than commensurate sentence of five years. The Court of Appeal substituted a sentence of 21 months as being commensurate because, although the offences were unpleasant and distressing, they did not require protection of the public from serious harm. The trial judge had fallen into the trap of assessing the seriousness of the risk of reoffending rather than the seriousness of the anticipated harm. In our judgment, such a case might now be regarded as one where an extended sentence could and should be imposed with a commensurate custodial sentence."
"if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)."
Accordingly, the Parole Board does not have to be positively satisfied that it is necessary for the protection of the public that he should be confined; rather they need only be satisfied that it is no longer so necessary. It follows as a matter of language that if they are left uncertain as to whether it is still necessary or not, he will continue to be confined.
The grounds of appeal.
(i) It is alleged that the recall and continued detention of the claimant engages Article 5 of the Convention, and that the way in which the legislation is framed means that there can never be compliance with Article 5(1) because the prisoner can be subject to a significant additional period of imprisonment without a separate finding of guilt by a court which satisfies Article 6. This is the root and branch attack on the very essence of these provisions.
(ii) It is contended that the Parole Board applied the wrong test when determining whether the claimant should be released or continue to be detained. It is alleged that the Board simply asked whether there was a risk that further offences would be committed. Mr.. Fitzgerald Q.C., counsel for the claimant, submitted that this was putting the test far too low. It failed to identify either the type of risk or the degree of risk. As to the type of risk, it was contended that that there were two limitations on the powers of the Board. First, before concluding that the claimant should be detained in prison, the Board ought to have been satisfied that there was a risk that the prisoner would commit not just any further offences but specifically offences which were of a violent or sexual nature. Since the extended sentence could be imposed only because of the risk of those offences being committed, it could not be right to recall and detain someone where the risk was of different offences being committed. Second, Mr. Fitztgerald contended that there had to be a risk of serious harm to the public in the sense of harm to life or some physical or psychological injury. He further contended that the degree of risk had to be a high one.
(iii) It is alleged that Section 44A is inconsistent with the requirements of Article 5 of the Convention in that it purports to establish a presumption that a recalled prisoner will be detained unless the Parole Board is satisfied that it is no longer necessary to confine him, whereas in order to comply with Article 5 it ought to require the Board to release him on licence unless satisfied that it is necessary in the public interest to detain him.
(iv) Finally, it is said that the Board in this case wrongly took into consideration hearsay evidence, and made certain factual findings on the basis of such evidence, when both fairness and compliance with Article 5.4 required that they should have called relevant witnesses to establish material facts in dispute. This error, it is said, has had a significant practical effect on the decision. Mr. Fitzgerald submitted that had the Parole Board left out of account these disputed factual issues, they could not possibly have been satisfied that there was a risk of committing further offences. In any event, the decision should be quashed because the court cannot be sure what they would have determined in those circumstances.
Does Article 5 apply to the recall and detention procedures?
"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 the procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court."
Article 5.4 provides:
"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 determined speedily by a court and his release ordered if the detention is not lawful."
(1) Nobody should be subject to arbitrary or disproportionate punishment; this requires that the re-detention following an earlier release from custody should be not only in accordance with domestic law but should also, to use the language adopted in the Weeks case (para.42) "result from", "follow and depend upon" or occur "by virtue of" the conviction. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty in issue."
(2) Where in the course of serving a sentence a prisoner embarks upon a period of detention (whether following release or not) which is not directly engaged by the original sentence, but raises new issues affecting the lawfulness of the detention, the continuing or fresh detention of the prisoner will have to be subject to continuing supervision as required by Article 5.4.
" An offender sentenced to an extended sentence may be recalled to custody at any time during the licence period and the extension period without the intervention of the court, if the terms of the licence are breached. Once the offender is recalled, the case will be reviewed annually by the Parole Board. Unless subsequently released again on the direction of the Parole Board, the offender will then remain in custody until the end of the extension period. The provision for annual review applies only to offenders serving an extended period of licence, and the Panel understands that it was introduced because of concern about the human rights implications of the threat of recall without frequent review of the need for continued detention."
"In hearing representations against recall or conducting reviews after the expiry of the custodial term, the Parole Board is required to sit in a judicial capacity in order to satisfy the requirements of the ECHR."
Accordingly, section 44A in terms confers the right to regular annual reviews by the Parole Board.
"It is certainly possible to argue that for the purposes of s. 2(2)(b) of the 1991 Act [80(2)(b) of the PCCA] the 'seriousness of the offence' includes a consideration of other offences committed by the offender, but equally it is clear that the longer determinate term is imposed, at least in part, because in the opinion of the court it is necessary to protect the public from serious harm from the offender. The decision to impose the longer term is plainly a judicial decision, every aspect of which is subject to appeal, and so, as it seems to me, in the words used by the European Court of Human Rights in De Wilde v Belgium (No 1) (1971) 1 EHRR 373 at 407 (para 76) 'the supervision required by Article 5(4) is incorporated in the decision'. The sentence is not determinate. It cannot exceed the statutory maximum for the index offence, and it does not hand over to the executive the decision as to when the offender should be released, which can be contrasted with the position in relation to many discretionary life sentences where the sentencing court concludes that the offender will remain a potential danger for an uncertain period of time (see R v Hodgson (1967) 52 Cr App R 113). In the type of case with which we are concerned a period of time is fixed precisely because the sentencing judge considers that he or she is in a position to fix it even though it is clear than in many cases the risk which an offender will present to the public is capable of fluctuating with the passage of time."
May LJ also gave a brief judgment and summarised his conclusions as follows:
"…The principal reasons which lead me to this conclusion are: (a) A sentence under s2(2)(b) of the Criminal Justice Act 1991 – now s 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 – is a single determinate sentence, the product of a judicial decision. (b) Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender, (i) the length of the sentence is, and is intended to be, determined by the judge at the time of sentence; (ii) it is not intended to be reviewed, other than on appeal; and (iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoner's release – see the European Court of Human Rights' judgment in Thynne, Wilson and Gunnell v UK (1990) 13 EHRR 666 at 693 (para73), to which Kennedy LJ refers in his judgment…. (c) All the European authorities to which Kennedy LJ has referred which conclude that art 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) requires an appropriate procedure allowing a court to determine the continued lawfulness of detention, concern sentences which were indeterminate and where otherwise the decision whether to release the prisoner lay with the executive. Neither applies to sentences under s 2(2)(b) of the 1991 Act. (d) Section 2(2)(b) applies to violent or sexual offences where the court is of the opinion that it is necessary to protect the public from serious harm from the offender. In some such combined circumstances, an indeterminate sentence may be an available alternative. Even if that is not so, and although the sentence requires an element of judicial prediction, the choice of sentence is a judicial decision that a longer term necessary to protect the public should be determined at the time of the sentence."
Does the scheme infringe Article 5 principles?
"51. As the European Court of Human Rights made it clear in Weeks v United Kingdom 10 EHRR 293, 308, para 42, 'the detention' must result from, 'following and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue.
52. The applicant in Week's case had been sentenced in 1966 to life imprisonment. Following release on licence in March 1976 he was recalled to prison in June 1977 by the Home Secretary, the recall being confirmed by the Parole Board in December 1977. The court said, at p 312, para 49:
"Applying the principles stated in the Van Droogenbroeck judgment 44 EHRR 443, the formal legal connection between Mr. Weeks's conviction in 1966 and his recall some ten years later is not on its own sufficient to justify the contested detention under article 5(1)(a). The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. 'In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5' [a citation from the Van Droogenbroeck judgment]."
53. In the end, the court concluded that Mr Weeks detention had not been incompatible with Article 5(1) but that his rights under Article 5(4) had been breached.
54. Discretionary life sentences are imposed for the very reason that the sentencing court cannot be satisfied that the prisoner will no longer be a danger when the tariff part of his sentence ends. (Post – R v Offen  1 WLR 253, that is substantially true too in the case of an automatic life sentence). That being the rationale, it seems to me impossible to suggest that at the tariff expiry date there ceases to be "a sufficient causal connection between the conviction and the deprivation of liberty": Weeks's case 10 EHRR 293, 308, para 42. There is no question of the "decision not to release on that date" being inconsistent with the objectives of the sentencing court" so as to transform the detention into "a deprivation of liberty that was arbitrary"; Weeks's case, at para 49. True, para 49 contemplates that the required causal link might "eventually" be broken. To my mind, however, that would be so only in very exceptional cases. Mere delay in article 5(4) proceedings, even after the tariff expiry date, would not in my judgment break the causal link."
61. In so far as the European Convention for the Protection of Human Rights and Fundamental Freedoms has a role to play in this appeal, it is article 5(4) which is relevant and not article 5(1). Article 5(1) is not relevant because the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is that sentence and not the fixing of the tariff period.
62. The fixing of the tariff period determines when a prisoner has a right to have the question of his release considered by the Parole Board, but the expiry of the tariff period does not, by itself, make the detention unlawful. The detention is still lawful detention "after conviction by a competent court" and accordingly, detention which complies with article 5(1)(a). It is, however, detention from which, under both domestic legislation and article 5(4), on the expiry of the tariff period, the state is required to release the prisoner unless he constitutes a danger to the public (having given the prisoner an opportunity to establish that this is the position).."
The test to apply on recall
The presumption of detention.
"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."
"Whilst a test which in terms requires the Parole Board to satisfy itself that the applicant no longer represents a danger to the life or limb of the public gives rise to a different presumption from a test which in terms requires the Parole Board to release the applicant unless it is established that he continues to represent a danger, namely in the form case that the applicant is to be considered to represent a risk unless the contrary is proved, the Commission 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 para (1)(a) of the Convention."
Similarly in the Lichniak case the House of Lords rejected an identical argument in connection with a claimant serving a mandatory life sentence. Lord Bingham said this at para.16:
"I doubt whether there is in truth a burden 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 from a judgment. 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, the case of someone who once has taken life with the intent necessary for murder, to prefer the latter in case of doubt. In any event, this is a defensible process: material going to show that a prisoner is not dangerous will be before the board, and if the board is thought to show an exaggerated degree of caution it can be challenged. I would again accept that a convicted murderer would very much prefer not to be subject, on leaving prison, to a life licence carrying the threat of indefinite recall. But a prisoner released, as Ms Lichniak has been, should be in no danger of recall in the absence of any resort to violence, and the 1997 Act provides (in section 32) that the propriety of any recall be the subject of independent assessment by the Parole Board."
"where a decision is taken to deprive someone of his liberty, that should only be done after he has been given a fair opportunity to answer the basis upon which such an order is sought. It seems to me that in testing whether or not such an opportunity has been given, it is essential to bear in mind the nature and purpose of the proceedings in question."
Later in his judgment he dealt with the question whether it was appropriate to take into account hearsay evidence and how the magistrates should approach that evidence:
"40. It seems to me, that the justice is simply required by the statute to come to an honest and rational opinion on the material put before him. In doing so, he must bear in mind the consequences to the defendant, namely the fact that he is at risk of losing his liberty in the context of the presumption of innocence. This was the view of this court in R v Liverpool Justices. Article 5 does not, in my judgment require any different approach. None of the cases which have been cited to us suggest that the provisions of Article 5 include a requirement that underlying facts relevant to detention are to be proved to the criminal standard proof. This is not surprising, bearing in mind the delicate exercise on which the court is engaged in this type of jurisdiction, seeking to provide fairness to the defendant on the one hand, but securing the objectives of justice and the protection of the public during the period up to and including trial on the other.
41. From the decisions in R v Liverpool Justices, Re Moles and R v Mansfield Justices [supra] it is clear that the material upon which a justice is entitled in domestic law to come to his opinion is not restricted to admissible evidence in the strict sense. Lord Lane describes the common practice of the relevant material being presented by a police officer. I see nothing in either Article 5 itself, or in the authorities to which we have referred, which suggest that, in itself, reliance on material other than evidence which would be admissible at a criminal trial would be a breach of the protection required by Article 5. It is true that the European Court of Human Rights on occasions refers to the need for evidence; but that is used in contra-distinction to mere assertion. It does not seem to me that any of the authorities to which we have been referred assist in determining the nature of that "evidence". Bearing in mind the differences in the rules for admissibility of evidence in the different jurisdictions of the Member States, it is perhaps not surprising that the court appears to have left resolution of that question to domestic law.
42. 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 assertions at the one end of the spectrum which is unlikely [or] may not have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justices 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 the 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."
Did fairness require oral evidence in this case?
(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]; it is not a sufficient response to say the detention is justified by the original sentence. [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] (as indeed they currently are.)
(2). [Section 44A(4) of the CJA 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.]
(3) The Parole Board must be satisfied that the public interest requires that the prisoner be confined because of the risk that he will commit further offences, of either a sexual or violent nature, which the extended sentence was designed to deal with. The Board does not, however, have to be satisfied that the risk is a high one, or that there is a substantial risk of physical or psychological harm. Nor does the Board need to have evidence of behaviour which of itself is directly linked to the risk of committing further offences. The sentencing judge has already identified such a risk, and accordingly it is enough if the evidence shows that the arrangements for supervision in the community cannot be sustained so as properly control that risk.
(4) The Parole Board is entitled to consider hearsay evidence. Neither domestic jurisprudence, manifesting in the doctrine of fairness, nor Article 5 require that there should as a matter of course be cross-examination of witnesses to establish facts on which the Board relies. Fairness will sometimes require this, however. Moreover the Board must take account of the extent to which allegations are disputed, and bear in mind the extent to which they have been fully tested in cross-examination, when deciding what weight to give to these factors.
(5) In the circumstances of this case the Parole Board's decision to continue the detention of the claimant was justifiable and involved no unfairness.
Following the handing down of judgment the following declarations were made:
(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.
The second defendant was given leave to appeal; the claimant was given leave to cross-appeal. No order for costs was made, save legal aid detailed assessment of the claimant's costs.