QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PETER BARRIE MIDDLETON||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR STEVEN KOVATS (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
Wednesday, 19 February 2003
Crown Copyright ©
"If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial Judge if available, release on licence a life prisoner who is not one to whom section 28 above applies."
The Secretary of State did seek the views of the trial judge, Waller J, as he then was, and of the Lord Chief Justice. The papers remained with the judiciary for a period of almost two months and were received back in the lifer unit on 28 May. On 17 June 2002 the Secretary of State decided to release the claimant in accordance with the Parole Board's recommendation. At that time there was a lifer population of some 5200 prisoners, of whom over 3700 were mandatory lifers, in prisons in England and Wales.
"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..."
Are satisfied in this case, since, at all times after 28 May 2002, the claimant was detained in consequence of the sentence of life imprisonment imposed at trial.
"63. Where the 'lawfulness' of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. In addition, any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, amongst many authorities, the Amuur v France judgment of 25 June 1996) ...
"64 ... In the case of Weeks v the United Kingdom ... Which concerned the recall to prison by the Secretary of State of a applicant who had been released from a discretionary life sentence for robbery, the Court interpreted the requirements of Article 5 as applying to the situation as follows:
"'The lawfulness required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by the sub-paragraph (a) of Article 5 §1 (see as the most recent authority the Bozano judgment of 18 December 1986 ...) Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must 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 at issue ... '"
Having examined the development of United Kingdom and European decisions in the field, the Court continued:
"80. The Government maintained that the mandatory life sentence was nonetheless an indeterminate sentence which was not based on any individual characteristic of the offender, such as youth and dangerousness and therefore there was no question of any change in the relevant circumstances of the offender that might raise lawfulness issues concerning the basis for his continued detention. However, the court is not convinced by this argument. Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness."
" ... The Court considers that despite the State Court's finding of May 1996 that the applicant's right to non-discrimination had been violated as regards his old age pension rights, the applicant can claim to be a victim within the meaning of Article 34 of the Convention of the alleged violation as the contested provisions were not set aside and, thus, remained applicable to him until 1 January 1997, when the amendment of the Old Age Pension Act entered into force.
"However, the Court notes that the parties' submissions in the present case concentrate on the question whether the State Court should have set the contested provisions aside. While the Government argue that the State Court was prevented from doing so for reasons of legal certainty, the applicant contends that it should not only have annulled the relevant legislation but should have done so with retroactive effect.
"In this context, the Court recalls its case-law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional (see the Marckx v Belgium judgment of 13 June 1979 ... ). Moreover, it is also been accepted, in view of the principle of legal certainty that a constitutional court may set a time limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period ... "
"70 ... If the tribunal remains seised of the matter until the actual direction for conditional discharge is given, it seems to us highly desirable that the Tribunal should be able to have regard to relevant fresh material, should there be any. We view as unsatisfactory the conclusion ... that a Tribunal should be compelled to discharge a patient whose condition has deteriorated since the Tribunal first considered the matter.
"71. Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances ... "
This situation is not a direct analogy, if any analogy, with the Secretary of State's position here. Tribunals stand in the position of the Parole Board, and the Parole Board was not, at 17 June, seised of matters concerning the claimant's release; they had already communicated their decision on 15 March 2002. Nevertheless, new material was in the hands of the Secretary of State, which undoubtedly required mature consideration. I believe it to be conceded, on behalf of the claimant, that the Parole Board would have been entitled to consider changes of circumstances. The finding of breaches of the claimant's temporary leave had possible consequences to the Parole Board's decision to release.