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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Whiston, R (on the application of) [2014] UKSC 39 (2 July 2014) URL: https://www.bailii.org/uk/cases/UKSC/2014/39.html Cite as: [2014] 3 WLR 436, [2015] AC 176, [2014] 4 All ER 251, [2015] 1 AC 176, [2014] UKSC 39 |
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Trinity Term
[2014]UKSC
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39
Onappeal from: [2013] EWCA Civ 1374
JUDGMENT
R (on the application ofWhiston)
(Appellant) v Secretary of State for Justice (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
2 July 2014
Heard on 26 March 2014
Appellant Hugh Southey QC Amanda Weston (Instructed by Chivers Solicitors) |
Respondent Nathalie Lieven QC Alison Chubb (Instructed by Treasury Solicitors Department) |
LORD NEUBERGER (with whom Lord Kerr, Lord Carnwath and Lord Hughes agree)
Introductory
The relevant domestic law
"Subject to subsections (2) to (4), the Secretary of State may release on licence under this section a fixed-term prisoner at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period .."
Subsection (2) limits this power in relation to short sentences, and subsection (4) excludes the operation of subsection (1) in certain other cases, including cases where "(aa) the sentence is for four years or more" and "(g) the prisoner has been released on licence under this section at any time and has been recalled to prison under section 255(1)(a)".
"(1) . [A] curfew condition is a condition which
(a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified .. and
(b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
(2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than 9 hours in any one day .
(3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244."
Thus, a curfew condition cannot operate beyond the end of the requisite custodial period, the point at which the prisoner would in any event be entitled to be released. The place specified in a person's licence is normally his home, and for that reason a licence under section 246 is often known as "home detention curfew".
(1) If it appears to the Secretary of State, as regards a person released on licence under section 246
(a) that he has failed to comply with any condition included in his licence, or
(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence,
the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section."
Thus, the power of recall under section 255 can only be exercised whilst the curfew condition is in force - ie until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right. (Thereafter, the licence can only be revoked under section 254). Further, section 255(2) provides for a licensee to be given the reasons for his recall and the opportunity to make representations to the Secretary of State, who can cancel the revocation pursuant to section 255(3). However, unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of State's section 255 power of recall.
a) All prisoners are entitled to release on licence after serving half their sentence;
b) If recalled, a prisoner is either entitled to re-release after 28 days or to referral to the Parole Board, whose decision on re-release is binding;
c) There may be discretionary release, sanctioned by the Secretary of State, for the limited period of up to 135 days before the prisoner becomes entitled to release at the half way mark in his sentence.
d) This discretionary release is also on licence but the licence must additionally incorporate Home Detention Curfew terms.
e) During the period of the discretionary release, the prisoner may be recalled not only for breach of licence or demonstrated risk to the public but also because the Home Detention Curfew system cannot be made to work in his case. He must be given the reasons and is permitted to make representations to the Secretary of State.
f) Such recall within the limited period of up to 135 days is not subject to Parole Board or court review, but
g) So soon as the half way stage in his sentence is reached, the automatic Home Detention Curfew terms fall away and the rules set out at (a) and (b) apply.
Article 5(4) of the Convention
"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 ."
"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."
The parties' respective cases
The Strasbourg jurisprudence on article 5(4)
[T]he purpose of article 5(4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected . Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that article 5(4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by article 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after 'conviction by a competent court' . It may therefore be concluded that article 5(4) is observed if the arrest or detention is ordered by a 'court' within the meaning of [article 5(4)]."
"[W]here an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures. No new issues of lawfulness concerning the basis of the present applicant's detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5(4) of the Convention."
Domestic jurisprudence on article 5(4)
"[A] distinction is drawn between detention for a period whose length is embodied in the sentence of the court on the one hand and the transfer of decisions about the prisoner's release or re-detention to the executive. The first requirement that must be satisfied is that according to article 5(1) the detention must be 'lawful'. That is to say, it must be in accordance with domestic law and not arbitrary. The review under article 5(4) must then be wide enough to bear on the conditions which are essential for a determination of this issue. Where the decision about the length of the period of detention is made by a court at the close of judicial proceedings, the requirements of article 5(1) are satisfied and the supervision required by article 5(4) is incorporated in the decision itself. That is the principle which was established in De Wilde, Ooms and Versyp. But where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals."
"Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary."
"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."
"This decision is in direct conflict with the reasoning of the Strasbourg court in Brown v United Kingdom. Lord Brown considers that its effect should be confined to the decision whether to release a prisoner after recall. I can see no reason for so confining it; the reasoning is applicable to any decision whether to release a prisoner on licence." (para 28)
Discussion
Conclusion
LADY HALE