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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Youngsam, R (On the Application Of) v The Parole Board  EWHC 729 (Admin) (07 April 2017)
Cite as:  1 WLR 2848,  WLR(D) 261,  WLR 2848,  EWHC 729 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of Shimei Youngsam)
|- and -
|The Parole Board
Tim Buley (instructed by The Government Legal Department) for the Defendant
Hearing dates: 7th March 2017
Crown Copyright ©
Mr Justice Turner :
"Article 5 – Right to liberty and security
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…
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."
The Statutory Framework
"58 In this case, Mr Whiston was still serving the period of imprisonment which resulted from the sentence imposed on him by the court: it is called "the requisite custodial period". He was not yet entitled to release. Discretionary release subject [to] a home detention curfew enforced by electronic monitoring may or may not be regarded as a continued deprivation of liberty, depending on the length of the curfew, but it is very close to it. The prisoner may be recalled for the purely practical reason that it is not possible to monitor him at his address, which is nothing to do with whether he still constitutes a risk. It is the original sentence which means that he is still a prisoner.
59 Hence it seems to me that our domestic law, which gives the Parole Board the power to decide on the continued detention of a prisoner recalled after mandatory release on licence, but not after release on home detention curfew, draws a principled distinction. It is a distinction which is certainly consistent with the principles contained in article 5.1 and 5.4 of the European Convention. It is for that reason that, although agreeing with the ratio of the decision in this case, I would prefer it not to be taken further than the situation with which this case is concerned. I comfort myself that the views to the contrary expressed in Lord Neuberger PSC's judgment are, strictly speaking, obiter dicta."
What is the ratio of Whiston?
"A case is only authority for what it actually decides."
Taken literally, such an analysis would limit the scope of the ratio of any given case to the material facts upon which it was decided thus excluding from consideration as part of the ratio any broader principles forming part of the reasoning of the court.
"…the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent."
"Cases as such do not bind; their rationes decidendi do. While there has been much academic discussion of the proper way of determining the ratio of a case, we find the clearest and most persuasive guidance, at least in a case such as the present where one is dealing with a single judgment, to be that of Professor Cross in Cross & Harris, Precedent in English Law, 4th ed (1991), p 72: "The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him.""
"In the Lawrence case  Ch. 656, Simonds J held, in a reserved judgment, that on the facts before him no general scheme of development existed. It was accordingly not necessary to determine what rights as between the sub-purchasers there might have been if the main scheme had been held to exist. However, as the point had been fully argued, he expressed his views on it. I do not think that such views can simply be stigmatised as being obiter and so of little weight. A mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter…"
"The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."
"74 Inescapably it follows from West that contrary to the view expressed in the Strasbourg court's admissibility decision in Brown, a prisoner's recall for breach of his licence conditions does raise, "new issues affecting the lawfulness of the detention" such as to engage article 5(4) . And that seems to me clearly correct: it would not be lawful to recall a prisoner unless he had breached his licence conditions and there could well be an issue as to this. I wonder, indeed, if the European court would have decided Brown as they did had it followed, rather than preceded, the House's decision in West. Be that as it may, recall cases certainly so far as domestic law goes, are to be treated as akin both to lifer cases in the post-tariff period and to the Van Droogenbroeck-type of case where, upon the expiry of the sentence, a prisoner is subjected to an executive power of preventive detention. And all these cases, submits Mr Owen, weaken the Secretary of State's contention that there exists a core principle of Convention law that article 5(4) cannot be engaged during the term of a determinate sentence…"
"45 I have some difficulty with the notion, implied by Lord Brown in para 74 of Black, that a court in this country should hold that the reach of article 5(4) is, as it were, longer than the Strasbourg court has held. Assuming (as may well be right, and will no doubt have to be considered in a future case) that a United Kingdom court could, in principle, decide that article 5(4) applied in Mr Whiston's case in the face of clear Strasbourg jurisprudence that it would not, I am quite unconvinced that it would be appropriate to do so. Unless and until I am persuaded otherwise on the facts of a particular case, it seems to me that the common law should be perfectly well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention. The decision in West demonstrates that the common law affords protection in such circumstances, and Lord Brown's actual conclusion in Black underlines the very limited nature of any exception which he had in mind in his obiter observations.
46 It would be wrong not to confront squarely the decision in West on article 5(4) and Lord Brown's obiter dictum in Black, para 74. As Elias LJ said at  QB 306, para 1, there is "a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage" article 5(4). As he added, "[p]roblems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices". I believe that this makes it particularly important that we grasp the nettle and hold that (i) the decision in West was per incuriam so far as it involved holding (or assuming) that article 5(4) was engaged, and (ii) the obiter dictum of Lord Brown in Black, para 74 is wrong in so far as it suggests that the law of the UK in relation to article 5(4) differs from the Strasbourg jurisprudence as summarised by Lord Hope in Giles, paras 40 and 51.
47 So far as West is concerned, I have already identified certain problems in para 41 above. Furthermore, and importantly, it is not as if the actual decision in West thereby stands in any way impugned. As the headnote records, at  1 WLR 350–351, the conclusion reached by the House of Lords was primarily based on the appellant's common law rights, as is reflected in Lord Bingham's opinion, which devotes nine paragraphs to the common law and one to article 5(4). I suspect that the reason that the appellant's Convention rights were considered was that one of the appellants had not relied on the common law in the Court of Appeal (see para 33). Properly analysed, all five opinions in Black support the view that West was per incuriam to the extent I have suggested. Lord Phillips and Lord Brown both expressly said it is inconsistent with the Strasbourg jurisprudence, and Lord Rodger and Lady Hale agreed with Lord Brown. Lord Rodger (with whom Lady Hale also agreed) and Lord Carswell each made it clear that they regarded the law as accurately set by Lord Hope in Giles, which is inconsistent with West so far as the applicability of article 5(4) is concerned.
48 As to Lord Brown's observation in Black at para 74, apart from being no more than an obiter dictum, it is inconsistent with the analyses of Lord Rodger and Lord Carswell in the same case. I must also confess that, in agreement with Lord Phillips, it seems rather hard to reconcile the reasoning which led Lord Brown to dismissing the appeal with his observations in para 74. It is true that Lord Rodger and Baroness Hale agreed with Lord Brown, but I do not think it would be right to take such a general agreement as approving every sentence in Lord Brown's opinion, at least in so far as a sentence is not part of his "[c]onsiderations and conclusions". Quite apart from that, it does not appear to have been argued in Black that it was wrongly held or assumed in West that article 5(4) was engaged, and therefore it is unsurprising that, in so far as they considered West, the opinions in Black proceeded on the basis that it was rightly decided. Indeed, the inconsistencies and uncertainties on this issue engendered by the opinions in Black appear to me to support the view that West was wrong in so far as it held or assumed that article 5(4) was engaged."
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House."
"The Supreme Court has not thought it necessary to reissue the Practice Statement as a fresh statement of practice in the court's own name. This is because it has as much effect in this court as it did before the Appellate Committee in the House of Lords. It was part of the established jurisprudence relating to the conduct of appeals in the House of Lords which was transferred to this court by section 40 of the Constitutional Reform Act 2005."
i) does not require the Supreme Court to make express reference to the Practice Statement as a prerequisite to departing effectively from an earlier decision;
ii) does not require the decision to depart from precedent to be unanimous;
iii) does not require the ratio of the decision to depart from precedent to coincide with or entirely to subsume the ratio of the earlier decision or decisions which it rules no longer to be binding.
"It is not for any inferior court—be it a county court or a division of the Court of Appeal presided over by Lord Denning —to review decisions of this House."
THE COMMON LAW
"The [Human Rights Act 1998] also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate."
"No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right."
"Mr Thomann for the Board accepts that after the dossier was provided there were unexplained administrative errors in assigning the file for case management with the effect that the hearing date was set for 2 December 2014, four months outside the target date of August 2014. He submits that an administrative slip up of this nature is insufficient to cause a breach of the right to a speedy hearing under article 5 (4). If it had stood alone, we would be inclined to agree with that submission…"
Previously, in respect of the same claimant Ouseley J had observed in Guntrip v Parole Board  EWHC 3188 (Admin) at para 30:
"Mr Hare submitted that no declaration should be made because Lord Hope in paras 20-21 of his speech in R (James) v Secretary of State for Justice (Parole Board Intervening) 2009 UKHL 22,  1 AC 553, required an entire breakdown in the statutory system before there was a breach of Article 5(4); what was required was a breakdown of such length that detention had become arbitrary. That, said Mr Hare, had not occurred. I am not entirely clear to what Lord Hope was addressing those comments. I think that he was probably dealing with the effect of the sort of modest delays which often occur in reasonably well managed processes, whether through mistakes, carelessness or other factors, for which allowance should be made."
In the circumstances of the instant case, I am satisfied that it could not be argued that the standards set by the common law impose a higher burden on the Parole Board than the obligation under Article 5(4) to act "speedily". Accordingly, these standards can safely be applied to the common law without giving rise to the risk that the claimant will be jurisprudentially undersold. The extent, if any, to which the standards of the common law may actually be less exacting than those imposed under Article 5 may properly be left for others to decide if the matter should arise in future. This may be a significant issue, for example, where the question of the prioritisation of resources arises. In this case, however, it does not.
APPLYING THE COMMON LAW STANDARD
THE SUBSTANTIVE DECISION
"The panel found the evidence regarding the circumstances of the second recall difficult to evaluate. Your evidence was that you were shot for an unknown reason by an unknown person. The panel noted that your account of why you were in the area had altered from that given to police at the time. The first recall incident raised concerns that you had quickly returned to elements of your previous lifestyle, i.e. drug misuse. The evidence from Trident was, the panel accepted, somewhat vague. Although it was a finely balanced decision the panel concluded, on the balance of probabilities that you knew more about why you were shot than you admitted in evidence. This led to concerns that there was a possibility of further violence by way of settling scores or revenge. If this was [sic.] the case, the risk management plan would not be able to manage such a risk. In these circumstances, the panel was not satisfied that it is no longer necessary for the protection of the public that you remain confined and makes no direction for release."
"(a) The conclusion reached by the panel that the Claimant poses an ongoing risk of harm was premised on a finding that he might pose a risk of seeking revenge against those who had caused him injury. The starting point for this finding was that the Claimant had not been entirely open or honest about the circumstances in which he was shot. In particular, the panel found that he may have known more about the shooting incident than he had disclosed. This finding was based in part on the Claimant's failure to give a statement to the police who attended him after the shooting. This fails to recognise that the Claimant was seriously injured to the extent that he had to be placed in an induced coma and in consequence was unfit to provide a statement.
(b) The evidence supplied to the panel by the police and prison staff did not provide any evidence to support a finding that the Claimant was likely to become involved in any reprisals. The police agreed that there was no evidence linking the Claimant to gang activity. The prison staff confirmed that his behaviour had been exemplary with no links to criminality or gangs in custody.
(c) Against this background, there was insufficient evidence to enable the panel to make a leap to find that there is an ongoing risk of reprisal that cannot be safely managed in the community. There was no evidence that the Claimant had behaved in a violent manner on any occasion since his original conviction or that his behaviour since his recall suggested any attempt at reprisal or any connection with people who might try and effect reprisal on his behalf. Whilst it is accepted that the panel is uniquely placed to make an assessment of the facts and the individual, the assessment in this case has failed to properly take into account important facts (the Claimant's incapacity following his injury) and has reached a determination of risk based on a hypothesis which was not supported by the evidence given by professional witnesses at the hearing and so is inadequately reasoned."
"18. Before dealing with those submissions, I have been referred, and there is no dispute, as to the relevant law relating to the adequacy of reasons for decisions. In the Court of Appeal decision of Owen Oyston v Parole Board (1999/1107/C), in his judgment Pill LJ set out in general terms what administrative law requires in respect of the giving of reasons by a decision maker: that the reasons should be intelligible and deal with the substantial points that have been raised and be of sufficient detail to enable the reader to know what conclusion has been reached on the principally important controversial points. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden.
19. Specifically with regard to the Parole Board, I was referred to the decision of Turner J in The Parole Board ex p Hart in May 2000. The relevant passages are in paragraphs 29 and 30, where Turner J said that he had to consider whether or not the decision of a Parole Board is a response within the reasonable range of responses of a reasonable decision taker and/or alternatively whether or not the reasons given by the Parole Board for its decision are proper, sufficient and intelligible:
"The Parole Board is uniquely qualified to make the decision which it is called upon to make. Previous decisions of this court indicate the difficulty which confronts the Parole Board which has a plain and important public duty to perform. A duty which has to extend to consider the wider public interest in terms of risk. But it also has to consider the position of the candidate for parole against the progress which such person has made during his period of imprisonment."
The reference there, of course, to parole is not applicable directly here, but similar principles apply. Turner J quoted from the decision of Butterfield J in the Lillycrop case ( EWHC Admin 281), where Butterfield J said:
"21. In our judgment the decision letter should contain a succinct and accurate summary of the reasons leading to the decision reached. When formulating their reasons the members of a panel are not required to create some elaborate formal exegesis, or a detailed analysis of the facts they have considered and the application of those facts to the relevant law. The purpose of the reasons is to tell the prisoner in broad terms why parole has not been recommended, bearing in mind that in most cases the prisoner will himself have been provided with the documentation available to the Board.
22. The reasons must be such that the prisoner will know why a decision unfavourable to him has been reached.""
i) where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). The conclusion of the majority in Whiston to this effect should be regarded as being binding on all inferior courts notwithstanding the fact that, strictly speaking, it was obiter to the extent that it was more broadly stated than was necessary for the determination of the central issue in that case;
ii) there is a common law duty on the Parole Board to make decisions concerning the liberty of offenders without undue delay. Nevertheless, some allowance should be made for the sort of modest delays which often occur in reasonably well managed processes, whether through mistakes, carelessness or other factors;
iii) in the circumstances of this case, the process of which the claimant makes complaint although falling short of the ideal was not flawed to the extent that it gave rise to a breach of the common law duty relating to delay;
iv) There is no merit in the substantive challenge to the decision of the Parole Board to decline to order the claimant's release.
Note 1 In particular, the cases of Ganusauskas v Lithuania  Prison LR 124 and Brown v UK (Application No 968/04) (Unreported) 26 October 2004. [Back]
Note 1 In particular, the cases of Ganusauskas v Lithuania  Prison LR 124 and Brown v UK (Application No 968/04) (Unreported) 26 October 2004. [Back]