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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 1951 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KENNETH PARKER
| R (on the application of) ASHLEY FOSTER
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
Nathalie Lieven QC (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 3 July 2013
Crown Copyright ©
Mr Justice Kenneth Parker :
The Legislative and Procedural Background
i) Subject to sub-sections (2) to (4), the Secretary of State may a) release on licence under this section a fixed-term prisoner, other than an intermittent custody 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 . . . .
ii) Sub-section (1)(a) does not apply in relation to a prisoner unless a) the length of the requisite custodial period is at least six weeks, andb) he has served i) at least four weeks of that period, andii) at least one-half of that period.
i) . . . 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 . . . andb) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
ii) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
iii) 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.
As sub-section (3) makes plain, the curfew condition cannot be made to operate beyond the period of the custodial term when the prisoner would in any event be entitled to be released. Release on licence of post-custodial term prisoners may exceptionally have a curfew condition for those identified as MAPPA level 3 cases: section 250(4)(b) of the Act; art 3(2)(b) of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005/648, PC 29/2007 Annex A and PSO 6000 Chapter 14. Typically the place specified in the licence is a person's home; hence the reason why the scheme is known as the "home detention curfew scheme".
"Recall of prisoners released early under section 246
(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.
254 Recall of prisoners while on licence
(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1)
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.
"31. I am not persuaded that the release on home detention curfew is properly to be viewed as the restoration of liberty sufficient to engage art 5 if and when the prisoner is recalled to prison. It is true that West shows that the mere fact that the liberty is conditional on compliance with the conditions of the licence, and is to that extent precarious, does not prevent it amounting to sufficient liberty to engage art 5(4) when the prisoner is denied it. But it seems to me that release on home detention curfew is much more closely integrated with the original sentence than is release as of right once the custodial period has been completed. The curfew is a compulsory feature of the scheme and if it cannot be enforced, the licence must be withdrawn and the prisoner recalled, irrespective of the fact that the prisoner has honoured the conditions of his licence. Indeed, that is this case. The purpose of granting such freedom to the prisoner is to help him integrate into society. In my view, it is properly to be seen as a modified way of performing the original sentence imposed by the judge; the recall simply restores the primary way in which it was assumed that the sentence would be served. This was essentially the basis on which Collins J found that art 5(4) was inapplicable in the Benson case (para 19) .
32. I do not suggest that someone subject to equivalent restrictions on his liberty in other circumstances, for example as part of bail conditions, would be unable to claim that he had lost his liberty if he were to be imprisoned. Article 5(4) would no doubt be applicable to imprisonment for alleged breach of the licensing conditions in those circumstances. But in a context where the licensing arrangements are made as an alternative to compulsory detention, the question is whether the link with the original sentence imposed by the judge is broken. In my view, it is not and therefore the conditions of art 5(4) are satisfied by the original trial.
33. I recognise that it can be said that just as in the West case, new facts have to be established before the prisoner can be recalled. But in my view that is not of itself sufficient to engage art 5(4) because the highly restricted liberty inherent in the home detention curfew scheme is so intimately connected with the original custodial sentence. Nor do I believe that Lord Brown had this scheme in mind when he made the observations he did in the Black case (see para 27 above). I believe he was considering the licensing arrangements under the Criminal Justice Act 1991 considered in West when long term prisoners could be released on discretionary licence after serving half their sentence on precisely the same terms as they would be released as of right after serving two-thirds. I should add that I wholly reject a submission of Mr Southey that Lord Brown's remarks, made in passing in his speech, were binding on us."
"Your compliance with the conditions of the [HDC] will be monitored by SERCO as the supplying company. You must provide the supplier with access to the curfew address to install and check the monitoring equipment and electronic tag. Such visits will be made during your curfew hours [that is 7.15pm 7.15am] but not between midnight and 6.00am. However, the supplier may visit the curfew address between midnight and 6.00am in order to investigate a reported violation." (Emphasis added)
"9. Pursuant to contracts entered into by the Secretary of State, the responsibility for installing and maintaining the electronic monitoring equipment and for the monitoring itself rests with individual private sector contractors. Some time before release, the contractor will be notified of the release of the prisoner who will generally be required by a licence condition to arrive at the release address by 3pm on the day of release and await the contractors' visit to install the equipment. The contractor will attach the tag and install the home monitoring unit (HMU), set the range at which the two will communicate, and check that the equipment functions properly before leaving. Thereafter, the tag will communicate continually with the HMU when in range in order to alert it to its presence and integrity. These alerts are then relayed automatically to the monitoring centre operated by the contractors who will act on any alerts to curfew or equipment violations.
10. The contractor does not have the authority to revoke a licence but will conduct the initial investigation into any apparent violations and may deal with relatively minor violations, such as an initial, short, unauthorised absence, without reference to the Secretary of State. Depending on the circumstances, the contractor might, for example, authorise an absence after the fact (if satisfied that the absence was for a legitimate reason, eg an urgent hospital visit) or issue a warning letter (if not so satisfied). They will refer more serious violations, such as an accumulation of further unauthorised absences after a warning, to the Secretary of State for a decision on revocation. In every case where there is an indication that the monitoring equipment has been tampered with, the contractor must visit to investigate within a matter of hours, and the subject is required to permit the contractor access to do so, by the conditions attached to the licence. Where the investigation confirms that the equipment has been removed or damaged, as opposed to it having failed, the contractor must refer to the Secretary of State to consider revocation.
Breach of HDC Licence Conditions (Overview)
11. The referrals, or "breach reports" will be sent by the monitoring contractor to the Public Protection Casework Section (PPCS) at the National Offender Management Service (NOMS) headquarters. PPCS will then consider whether to revoke the licence and recall to custody, using section 255 CJA 2003. The consequence of this type of recall (as opposed to recall under section 254 CJA 2003) is that the prisoner is only liable to be detained until the half-way point of sentence when he must be released by virtue of section 244 CJA 2003 (and on licence if serving 12 months or more). In practice this means that the periods involved in any recall will be fairly short. By definition they must be shorter than the period on HDC which itself can be as little as 2 weeks and never more than 4½ months
12. If the prisoner disputes the reasons for his recall he may submit representations to the Secretary of State who will investigate the circumstances and obtain all relevant evidence relating to the recall. If it is established (as a matter of fact that there has been no breach (e.g. faulty equipment or a mistake by the monitoring contractor); or that there was a justifiable and valid reason for the breach (e.g. the offender was absent during the curfew period due to being in hospital) then the Secretary of State will allow the appeal and re-release the prisoner to complete his HDC period.
Recall and Appeals Processes
13. The procedure is as follows:
a. In the event of significant breaches of curfew conditions in licences, the monitoring contractors notify the Public Protection and Casework Section ('PPCS'). Decisions are then taken by PPCS as to whether prisoners should be recalled for breaching their curfew conditions.
b. Prior to deciding whether or not to recall a prisoner for breaches of HDC licence 'curfew' conditions, PPCS may contact the prison establishment and request copies of documentation, including that which was used to assess the prisoner's eligibility for release on HDC.
c. Decisions to recall are made according to the facts which obtain in any particular case at the time. Relevant factors for the decision include: the frequency and duration of any breaches of curfew conditions; evidence of tampering with the monitoring equipment; any explanations provided to monitoring contractors; and information provided by the prison establishment.
d. If a decision is made to recall a prisoner to custody for breach of a curfew condition in an HDC licence, PPCS notifies the police and requests that the prisoner is returned to prison custody.
e. Within one working day of a prisoner's return to custody for breach of a curfew condition in a HDC licence, PPCS faxes the prison establishment where the prisoner is held with details of the action that must be taken by the prison. Included with that fax is a letter to the prisoner setting out the reasons for his recall, and details of the relevant appeal process that the prisoner may follow. This information is referred to as the 'recall pack'.
f. The prison must supply the recall pack to the prisoner within one working day of receipt of the same and confirm to PCS that this has been done.
g. On receipt of the recall pack the prisoner has the option of indicating whether or not he intends to appeal against the recall. In the event that the prisoner intends to appeal, PPCS alerts the monitoring contractor.
h. Any representations against recall that the prisoner may make, or which are made on the prisoner's behalf, are forwarded to PPCS.
i. PPCS will then pass the prisoner's representations, together with all relevant documentation (e.g. the monitoring logs, reasons for recall, any witness statements etc.), to the 'HDC Appeals team' in the Sentencing Policy and Penalties Unit in the Ministry of Justice. The Appeals team provide, on behalf of the Secretary of State, a route of appeal for recalled HDC prisoners that is independent from the team in NOMS responsible for the recall decisions. The role of the Appeals team is to consider the prisoner's representations and conduct an investigation to establish the facts of whether or not there had been a breach of the curfew conditions and, if so, whether there may have been reasonable and justifiable reasons for the breach.
j. Where the prisoner has been recalled under the powers provided by s255(1)(a) breach of curfew conditions the Appeals team investigate whether the prisoner's representations should be accepted or not. For example, if the breach involves being absent from the curfew address during the curfew period and the prisoner claims that this was through no fault of his own (e.g. due to an emergency hospital admission) the Appeals team will gather evidence to establish the truth of the matter (e.g. by contacting the hospital) and if it transpires that there was a justifiable reason for the absence, then the appeal will be allowed and the holding prison will be instructed to re-release the prisoner on HDC. If, however, the team conclude that the prisoner was correctly recalled, he will remain in custody until the half-way point in sentence when he would then be automatically released.
m. Where the recall is under s255(1)(b) inability to monitor the prisoner may apply to the governor to be re-released on HDC provided that he can provide a suitable address. For example, if the curfew address is the prisoner's parents' home and they withdraw their consent for him to remain there, then he will be recalled under s255(1)(b) if there is no other suitable address for him to be curfewed to. If his parents subsequently agree that he can return to their home, and probation confirm that the address remains suitable, the governor can re-release on HDC without the need for any appeal to be submitted.
Statistics regarding recalls from release on HDC licence
14. In the two year period April 2011 to April 2013 the SPPU Recall Appeals team received 190 Appeals against recall for breach of HDC conditions. Of these, 27 cases were for PID tamper (which generally take longer to determine). The overall average length of time to determine each case was 15 calendar days. This can be broken down to an average of 14 calendar days for non-PID tamper cases and 24 calendar days for PID tamper cases. Overall, 35 cases (18%) were allowed and the average time in an allowed case was 13 calendar days."
The Facts in This Case
"It has been reported by the monitoring contractors (Serco) that their field officers were unable to gain access to the approved curfew address on 24 August 2012 at 00.43 to investigate a suspected PID tamper. It is a condition of your licence that you must allow the contractor access to the property to install or check the monitoring equipment. The Secretary of State was therefore satisfied that, without this access, it was not possible to electronically monitor your whereabouts in the community."
The Basis upon Which the Appeal was Refused
"12. Again, on 23 August 2012 I did not tamper with my tag at all. I went to bed and was sleeping on a sofa bed in my sister, Tsehai's room. I was woken by my sister, Tsehai, who shook me to wake me and informed me that the 'tag' man was there. I also heard Angel shout at me that the 'tag' man was there.
13. I went downstairs to speak to the Serco employee, who was waiting at the bottom of the stairs. I sat down on the stairs and told the Serco employee that I was tired, had just been woken and it is very late. The Serco employee agreed to return the following morning to check the equipment. He did not attempt to explain the consequences of not checking the equipment there and then. Our conversation was limited to him agreeing to return. I was not aggressive or confrontational.
14. On reflection and in light of his subsequent action in breaching me, I think that he simply did not care. I think he agreed and walked away knowing he was going to recall me but wanting to make his job easier and not bothering to explain the consequences or engage with me."
The Claimant's Case
"31. While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The possibility of a detainee being heard either in person or, where necessary, through some form of representation has been recognised by the European Court as, in some instances, a fundamental procedural guarantee in matters of deprivation of liberty: De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, para 76; Winterwerp v The Netherlands (1979) 2 EHRR 387, para 60; Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, para 51; Waite v United Kingdom (Appn No 53236/99, 10 December 2002), para 59. Although ruling in a very different legal context, the Supreme Court of the United States, in a judgment delivered by Brennan J in Goldberg v Kelly 397 US 254, 269 (1970) helpfully described the value of an oral hearing:
"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 decision-maker 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 .."
35. 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."
"We can see no reason why the monitoring officer would adopt such an extraordinary course as to attend the address but not proceed to check the equipment, and then volunteer to return at a later time, outside your curfew hours contrary to company policy."
Lady Justice Rafferty: