QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JOHN HIRST||(CLAIMANT)|
|(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|(2) THE PAROLE BOARD||(DEFENDANTS)|
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)
MS K GRANGE (instructed by TREASURY SOLICITOR) appeared on behalf of the 1st DEFENDANT
MS K STERN (instructed by TREASURY SOLICITOR) appeared on behalf of the 2nd DEFENDANT
Crown Copyright ©
Tuesday, 21st June 2005
"(1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this Chapter, the Secretary of State may revoke his licence and recall him to prison.
"(2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
"(3) A life prisoner recalled to prison under subsection (1) or (2) above-
(a) may make representations in writing with respect to his recall; and
(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.
"(4) The Secretary of State shall refer to the Parole Board -
(a) the case of a life prisoner recalled under subsection (1) above who makes representations under subsection (3) above; and
(b) the case of a life prisoner recalled under subsection (2) above.
"(5) Where on a reference under subsection (4) above the Parole Board -
(a) directs in the case of a life prisoner to whom section 28 above applies; or
(b) recommends in the case of any other life prisoner,
His immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation.
"(6) On the revocation of the licence of any life prisoner 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."
"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;
B the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
C the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
D the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
E the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
F the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
"2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
"3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
"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.
"5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
"From the outset there were difficulties in your relationship with the hostel staff and a list of their concerns appears at pages 101 to 104 of the dossier. Your conduct includes failure to abide by the hostel rules, being abusive to staff and residents and telling a lie to justify your breach of curfew. You also fell into arrears with your maintenance charge payments. There were concerns over your level of alcohol consumption and its effect on your conduct. You were also seen to spend time near the children's playground and, despite a police warning, repeated the conduct. You showed a reluctance to cooperate with supervision and missed appointments on 1st and 10th July."
"The panel found that the combination of events during your time at the hostel gave risk (sic) to serious concerns about your increased risk and fully justified your recall."
"39. In what it described as its central submission, the Government argued that the applicant's recall to prison in 1977 had not deprived him of his liberty because both his liberty and his right to liberty had been taken away from him for the rest of his life by virtue of the sentence of life imprisonment imposed on him in 1966. The applicant was on this ground alone said to be precluded from claiming a breach of Article 5, whether of paragraph 1 or paragraph 4. The Government drew a distinction between liberty, properly understood, and a life prisoner being permitted to live on licence outside prison. In the latter case, the Government explained, the prisoner was still serving his sentence, albeit outside prison as a result of a privilege granted to him by the Home Secretary, but his right to liberty had not been restored to him. In sum, it was one and the same deprivation of liberty in June 1977 as in December 1966, based on his original conviction and sentence, and no new issue arose under Article 5.
"40. The Court is not convinced by such reasoning. It is true that in terms of English law, except in the event of a free pardon or an exercise of the Royal Prerogative commuting the sentence, a person sentenced to life imprisonment never regains his right to liberty, even when released on licence. That is not to say, however, that Mr Weeks lost his 'right to liberty and security of person', as guaranteed by Article 5 of the Convention, as from the moment he was sentenced to life imprisonment in December 1966. Article 5 applies to 'everyone'. All persons, whether at liberty or in detention, are entitled to the protection of Article 5, that is to say, not to be deprived, or to continue to be deprived, of their liberty save in accordance with the conditions specified in paragraph 1 and, when arrested or detained, to receive the benefit of the various safeguards provided by paragraphs 2 to 5 so far as applicable."
"41. Following his 'conviction by a competent court' in December 1966, Mr Weeks was sentenced to life imprisonment. The issue in the present case is whether his re-detention on recall to prison some 10 years later was 'in accordance with a procedure prescribed by law', 'lawful' and undergone 'after' that conviction.
"42. It was not contested that Mr Weeks' re-detention as from 30 June 1977 was in accordance with a procedure prescribed by English law and otherwise lawful under English law. That, however, is not necessarily decisive. 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 sub-paragraph (a) of Article 5(1). 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."
At paragraph 51 the court took the view that there was in fact a sufficient connection for the purposes of sub-paragraph (a) of Article 5(1) between the conviction and the recall to prison.
"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 to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court."
"40. Paragraph (2) of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph (2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed 'promptly' (in French: 'dans le plus court délai'), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.
"41. On being taken into custody, Mr Fox, Ms Campbell and Mr Hartley were simply told by the arresting officer that they were being arrested under section 11(1) of the 1978 Act on suspicion of being terrorists. This bare indication of the legal basis for the arrest, taken on its own, is insufficient for the purposes of Article 5(2), as the Government conceded.
"However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of prescribed organisations. There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation."
"I recall that Mr Hirst arrived at HMP Hull on 3 August 2004. Two to three days later I telephoned the LRRS to find out the reasons for recall. When I learnt that the recall process had been initiated by the Probation Service I contacted Mr Hirst's supervising probation officer, Phil Hurst. Phil Hurst told me on the telephone the reasons for Mr Hirst's recall. As I remember, these included an altercation with staff in the hostel, being warned by police about sitting in his car by a park and threatening old people living near the hostel...
I remember that Mr Hirst knew exactly why he had been recalled. He was very angry with Phil about the reasons and claimed they were trivial."
"63. In the view of the applicant and the Commission, the period of approximately two months from the institution of proceedings in the Oslo City Court on 3 August 1988 to the delivery of the judgment on 27 September 1988 did not correspond to the notion of 'speedily.' They pointed to the lack of rules providing for the speedy conclusion of proceedings as well as to delays in arranging for hearings and subsequently in giving judgment."
"65. Five weeks elapsed between the filing of the application for judicial review and the date of the hearing. To begin with, there was a delay of some 12 days pending the return from holiday of the judge responsible, and thereafter some nine days seem attributable to difficulties in reaching the applicant's lawyer. A further period of somewhat less than two weeks was allegedly needed to 'put the case on the right track'. However, once contact with the applicant's lawyer was established, the applicant did not complain of any undue delay in fixing the date of the hearing. Following the hearing, a further period of three weeks elapsed before the court's judgment was pronounced.
"66. Admittedly, the judge to whom the case was assigned required a certain amount of time to carry out the necessary inquiries. However, it is evident that the initial delays were caused by administrative problems due to the lodging of the application for judicial review during the vacation period. The Convention however, requires the Contracting States to organise their legal systems so as to enable the courts to comply with its various requirements. It is incumbent on the judicial authorities to make the necessary administrative arrangements, even during a vacation period, to ensure that urgent matters are dealt with speedily, and this is particularly necessary when the individual's personal liberty is at stake. Appropriate provisions for this purpose do not appear to have been made in the circumstances of the present case.
"As regards the period of three weeks required to write the judgment, it may well be, as the Government contended, that this period would have been much shorter had the Oslo City Court reached another conclusion after the hearing. Nevertheless, Mr E was entitled to a speedy decision, whether affirmative or negative, on the lawfulness of his custody."
"First, it is the obligation of the state to organise its legal system to enable it to comply with Convention requirements: Bezicheri v Italy (1989) 12 EHRR 210, 215, para 25. The excessive workload of the judge assigned to a particular case cannot be prayed in aid. Nor can the fact that the judge is on holiday: E v Norway (1994) 17 EHRR 30, 57, para 64. The latter case is of some importance because the holiday period was one of only 12 days, and although the total delay condemned was one of eight weeks it seems clear both that the 12-day period, taken on its own, would in view of the reason for it had been regarded as unsatisfactory; and that the case was understood in that sense by this court in R(C) v London South and West Region Mental Health Review Tribunal 1 WLR 176, 184, para 41."
"Second, no direct assistance is to be gained from cases decided in relation to the prompt hearing obligation imposed by article 6(1). The fact that the state is dealing with people who are at least presumptively detained unlawfully, and the legality of whose detention is controlled by article 5(4), imposes a more intense obligation than that entailed by the need for a prompt trial of people who are not in custody. I therefore view with some caution in this context cases such as Dyer v Watson  3 WLR 1488, relied on by the Secretary of State, that address article 6(1). But even there it is conspicuous that Lord Bingham of Cornhill, at p 242, para 55 of the judgment, drew a distinction between general faults in or underfunding of the system, which provide no defence even in relation to article 6(1), and 'the practical realities of litigious life even in a reasonably well organised legal system'. I find it hard to characterise the Parole Board's submissions, which are that because of lack of resources they are incapable of improving the system, as appealing to the second of the categories identified by Lord Bingham.
"26. Third, contrary to Miss Richards's submissions there is no general principle that 'administrative necessity' excuses..."
"This underlines the approach of the Strasbourg Court in a case such as this. The court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of Article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable despatch having regard to all the material circumstances."
Thus it is clear that what is "speedy" depends on the nature of the case and the other circumstances including whether the case is simple or complicated.
"LRRS has a target to set the release date and notify all relevant parties of that date within five working days of receipt of a Parole Board direction to that effect. Mr Hirst's release was effected within that time. The interval is due to the fact that various procedures have to be completed prior to release. Specifically, LRRS must check that the Parole Board direction is factually correct in content, draw up the draft life licence based on the Parole Board minutes, complete a release minute to the LRRS Senior Manager and amend the life licence according to the Senior Manager's comments. LRRS must also liaise with the prison and hostel concerning the release date and must discuss the licence conditions and release date with the Home Probation Officer. They must prepare the release paperwork and release a pro-forma to the policy section to notify the police of the release. They must then send copies of the finished licence to the Probation Service and prison and agree the final release date."