![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Supreme Court |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
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: [2015] AC 176, [2014] 3 WLR 436, [2014] 4 All ER 251, [2014] UKSC 39, [2015] 1 AC 176 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Buy ICLR report: [2015] 1 AC 176]
[Buy ICLR report: [2014] 3 WLR 436]
[Help]
Trinity Term
[2014]
![]()
UKSC
![]()
39
Onappeal from: [2013] EWCA Civ 1374
JUDGMENT
R
(on the application of
Whiston)
(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 March2014
Appellant Hugh Southey QC Amanda Weston (Instructed by Chivers Solicitors) |
![]() Nathalie ![]() Alison Chubb (Instructed by Treasury Solicitors Department) |
LORD NEUBERGER (with whom Lord Kerr, Lord Carnwath and Lord Hughes agree)
Introductory
Therelevant
domestic law
"Subject to subsections (2) to (4), theSecretary
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) includesrequirements
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 toremain
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 theSecretary
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,
theSecretary
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 torelease
on licence after serving half their sentence;
b) Ifrecalled,
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 discretionaryrelease,
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 discretionaryrelease
is also on licence but the licence must additionally incorporate Home Detention Curfew terms.
e) During the period of the discretionaryrelease,
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) Suchrecall
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 isreached,
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 theright
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 hisrelease
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 theright
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, thereview
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'srelease
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, thereview
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 theview
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 thereasoning
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