|Judgments - Regina v. Parole Board (Respondents) ex parte Smith (FC) (Appellant) and Regina v. Parole Board (Respondents) ex parte West (FC) (Appellant) (Conjoined Appeals)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Parole Board (Respondents) ex parte Smith (FC) (Appellant)
Regina v. Parole Board (Respondents) ex parte West (FC) (Appellant)
THURSDAY 27 JANUARY 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Parole Board (Respondents) ex parte Smith (FC) (Appellant)
Regina v. Parole Board (Respondents) ex parte West (FC) (Appellant)
 UKHL 1
LORD BINGHAM OF CORNHILL
Justin West: the facts
Trevor Smith: the facts
The provisions for early release, licensing and revocation
"and in giving any such directions the Secretary of State shall in particular have regard to -
(a) the need to protect the public from serious harm from offenders; and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
"1. In deciding whether or not to recommend the recall of a short-term prisoner released on licence ….. or to recommend the immediate release of such a prisoner who has been recalled, the Parole Board shall consider whether the prisoner's continued liberty or, as the case may be, immediate release, 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 directions applicable in the case of the appellant Smith were longer:
"Recall of Determinate Sentence Prisoners Subject to Licence
Where an offender is subject to a custodial sentence, the licence period is an integral part of the sentence, and compliance with licence conditions is required. In most cases, the licences are combined with supervision by a probation officer, social worker or member of a youth offending team …..
The objectives of supervision are:
?????? to protect the public ?????? to prevent re-offending ?????? to ensure the prisoner's successful reintegration into the community
Initial Recommendation for a Recall
In determining whether or not to recommend to the Secretary of State (under Section 39(1) of the Criminal Justice Act 1991) the recall of a prisoner who is subject to licence, the Parole Board shall consider whether:
(a) the prisoner's continued liberty would present an unacceptable risk of a further offence being committed. The type of re-offending involved does not need to involve a risk to public safety; or
(b) the prisoner has failed to comply with one or more of his or her licence conditions, and that failure suggests that the objectives of probation supervision have been undermined; or
(c) the prisoner has breached the trust placed in him or her by the Secretary of State in releasing him or her on licence, whether through failure to comply with one or more of the licence conditions, or any other means …..
Each individual case shall be considered on its merits, without discrimination on any grounds."
These directions were supplemented by directions on representations against recall: these were to very much the same effect, but also drew attention to the likelihood of compliance with licence conditions in future "taking into account in particular the effect of the further period of imprisonment since recall."
"Recall of long-term and life prisoners while on licence
(1) If recommended to do so by the Board in the case of a short-term or long-term ….. prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the 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 person 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 Board -
(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and
(b) the case of a person recalled under subsection (2) above.
(5) Where on a reference under subsection (4) above the Board -
(b) recommends in the case of any ….. person, his immediate release on licence under this section, the Secretary of State shall give 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."
The House was shown the document given to the appellant Smith pursuant to section 39(3)(b): this informed him of his right to make written representations, but gave no hint that he or his solicitor might in any circumstances make oral representations to the Board. The cases of both the appellants were referred to the Board under section 39(4)(a).
"In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ….."
"Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second-hand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore, a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context, due process does not require a particular order of proof or mode of offering evidence ….."
"However, such hearings can be, and are in fact, held where the panel of the Board considering the case takes the view that it is necessary in the interests of fairness, for example where it cannot properly reach a decision on the papers. This might be the case where there is a disputed issue of fact, which is central to the Board's assessment and which cannot be resolved without hearing oral evidence."
Kennedy LJ considered that in Smith's case the primary facts (para 37) were not in dispute. Brooke LJ agreed (para 49). Holman J also agreed (para 55), relying on Lord Mustill's observations in Doody. There was, he held (para 56), no objective need for an oral hearing, since there was no dispute on the primary facts, the Board's task was the assessment of risk and the procedure adopted was not "actually unfair".
"… 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 ….."
It seems to me plain that in cases such as the appellants' the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court. This view may have founded the Court's recent admissibility decision in Brown v United Kingdom (Appn No 968/04, 26 October 2004), p.6. The same result was reached in Ganusauskas v Lithuania (Appn No 47922/99, 7 September 1999), where no break was found in the causal link between the original conviction and the re-detention. But the revocation decision must comply with article 5(4), to which I now turn.
"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".
It is accepted that for the purpose of revocation proceedings the Parole Board has the essential features of a court within the meaning of article 5(4), and although, under section 39(5)(b), it can only recommend the release of a recalled discretionary sentence prisoner, its recommendation has the effect of an order since the Secretary of State must give effect to it. Convention jurisprudence establishes that the judicial review of the lawfulness of detention must be wide enough to bear on those conditions which, under the Convention, are essential for the lawful detention of a person in the situation of the particular detainee: Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 49; Weeks v United Kingdom (1987) 10 EHRR 293, para 59; Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, para 79; E v Norway (1990) 17 EHRR 30, para 50. That means, for present purposes, that the Parole Board should be empowered (a) to examine whether circumstances have arisen sufficient in law to justify further detention of a determinate sentence prisoner released on licence and, if so, (b) to decide whether the protection of the public calls for the further detention of the individual detainee. The Parole Board is empowered to discharge those functions. Its review will in my opinion satisfy the requirements of article 5(4) provided it is conducted in a manner that meets the requirement of procedural fairness already discussed.
Article 6 - criminal
Article 6(1) - civil
"The Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, are not covered by Article 6 para 1 of the Convention. They concern neither the determination of 'a criminal charge' nor of 'civil rights and obligations' within the meaning of this provision."
There are some determinations, perhaps involving preventative measures, which do not fall within either limb of article 6(1): Maaouia v France (2000) 33 EHRR 1037, paras 35-39; Ferrazzini v Italy (2001) 34 EHRR 1068, paras 28-30. A prisoner's challenge to recall was assumed but not held in Brown v United Kingdom (Appn No 968/04, 26 October 2004), p 7, to be capable of engaging a civil right, but the applicant's claim under this head was found inadmissible, for reasons which are not immediately compelling.
LORD SLYNN OF HADLEY
". . . 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 . . ."
"The principle . . . is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or a fine, it is a 'criminal cause or matter'" (p162).
Recall of a prisoner on licence is not a punishment It is primarily to protect the public against further offences, though it may also in some cases lead to further training which would enable the prisoner on a subsequent release to integrate more readily into the community. The Parole Board in reaching its decision is as a consequence not determining "a criminal charge" even if (which for present purposes I assume) a recommendation by the supervising officer that the prisoner should be recalled, because in his opinion a licence condition has been breached, is a "charge" within the meaning of Article 6 of the Convention.
LORD HOPE OF CRAIGHEAD
The common law
The Convention rights
Article 6 - civil rights and obligations
"Even assuming that the right to liberty is a civil right (for example, Aerts v Belgium Judgment of 30 July 1998, reports 1998-V, para 59), the Court notes that this applicant may bring proceedings in the domestic courts to assert the unlawfulness of his detention and claim damages at any time. The fact that the domestic courts might reject such claims, as happened in this case, does not affect the availability of access to court for the purposes of article 6."
In Kerr v United Kingdom, application no 44071/98, 7 December 1999, the applicant complained among other things that he was denied a fair hearing of the revocation and continuance of his licence under article 6(1). The part of that article that was treated by the court as relevant to his case was the criminal part only. No mention was made of the civil part. In Ganusauskas v Lithuania, application no 47922/99, 7 September 1999, the applicant alleged that the proceedings whereby he was recalled to prison violated article 6. The court observed that that provision was not applicable in his case "for the proceedings did not involve the determination of 'any criminal charge against him' within the meaning of article 6 of the Convention." Here too no mention was made of the civil part of that article.
Headings and Side notes: the Parole Board Rules 2004
"Subject to rule 24, these Rules apply where a prisoner's case is referred to the Board by the Secretary of State under section 28(6)(a), 28(7) or 32(4) of the [Crime (Sentences) Act 1997], or under section 39(4) or 44A(2) of the [Criminal Justice Act 1991], at any time after the coming into force of these Rules."
Part IV, which is headed "Proceedings with a hearing" applies to the cases identified by Rule 14(1), which provides:
"This part of the Rules applies in any case where a decision pursuant to rule 11(2)(a) or 13(2)(a) has been made, or where a notice under rule 12(2) or 13(5) has been served, or in any case referred to the board under section 32(4) of the 1997 Act or under section 39(4) or 44A(2) of the 1991 Act."
LORD WALKER OF GESTINGTHORPE