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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
1. These appeals concern the procedure to be followed by the Parole Board when a determinate sentence prisoner, released on licence, seeks to resist subsequent revocation of his licence. The appellants contend that such a prisoner should be offered an oral hearing at which the prisoner can appear and, either on his own behalf or through a legal representative, present his case, unless the prisoner chooses to forgo such a hearing. They base their argument on the common law and on articles 5 and 6 of the European Convention, relying on both the criminal and civil limbs of article 6. The respondent Parole Board accepts that in resolving challenges to revocation of their licences by determinate sentence prisoners it is under a public law duty to act in a procedurally fair manner. It accepts that in some cases, as where there is a disputed issue of fact material to the outcome, procedural fairness may require it to hold an oral hearing at which the issue may be contested. It accepts, through leading counsel, that it may in the past have been too slow to grant oral hearings. But it strongly resists the submission that there should be any rule or presumption in favour of an oral hearing in such cases, contending that neither the common law nor the European Convention requires such a rule or such a presumption.
Justin West: the facts
2. The appellant West was sentenced to 3 years' imprisonment for affray on 27 October 2000. He was thus a short-term prisoner within the meaning of section 33(5) of the Criminal Justice Act 1991, and by virtue of section 33(1) of the Act the Secretary of State was obliged to release him on licence once he had served one-half of his sentence. In the ordinary way, his licence would have remained in force until the date on which he would (but for his release) have served three-quarters of his sentence: section 37(1).
3. The appellant, having spent some time in custody before sentence, was duly released on licence on 6 August 2001. His licence was due to expire on 7 May 2002. His licence included terms that he should place himself under the supervision of any nominated probation officer; should keep in touch with the officer as instructed; should live at an address approved by the officer and notify the officer in advance of any change of address; and should be of good behaviour and not commit any offence or take any action which would jeopardise the objectives of his supervision. He was informed in writing that he must comply with the conditions of the licence and that the objectives of the supervision were to protect the public, to prevent re-offending and to achieve his successful re-integration into the community. He was warned in writing that if he failed to comply with the requirements of his probation supervision or otherwise posed a risk to the public he would be liable to have his licence revoked and be recalled to custody until the date on which his licence would otherwise have expired.
4. On 22 August 2001 the appellant's licence was revoked and he was recalled to prison by the Secretary of State for the Home Department acting on the recommendation of the Parole Board under section 39(1) of the 1991 Act. The Board was prompted to make its recommendation by the appellant's probation officer, who was supported by her superior. The reasons given were that the appellant had breached the conditions of his licence by failing to keep in touch with his probation officer in failing to keep an appointment on 20 August without giving a reasonable explanation; by failing to live regularly at his approved address; and by visiting the hostel address of his former partner, allegedly assaulting her, and being suspected of kicking in a door at her hostel.
5. The appellant's solicitors made brief written representations against his recall to prison under section 39(3)(a) of the 1991 Act. They gave an explanation of the appellant's failure to keep the appointment, stated that he had only spent one night away from his approved address, denied that he had assaulted his ex-partner and explained that he had broken open the door to prevent his ex-partner harming herself, as she had threatened. It was denied that the incident at the hostel had involved the commission of any crime. The solicitors offered to substantiate the appellant's account and suggested that an oral hearing would be appropriate, since there were issues of fact and witnesses would be needed if the Board proposed to resolve them.
6. The Parole Board considered the appellant's representations on 2 October 2002 but rejected them. It noted his admissions concerning the appointment and the ex-partner but said that it did not accept his explanations and noted that he had, on his own admission, spent a night away from his approved address. It also noted that the appellant had been seen drinking at the hostel, a matter not put to him. The Board took the view that his behaviour, taken as a whole, indicated a poor sense of judgment and a propensity for acting in a way which was incompatible with a continuing licence: the appellant served 8½ months in prison during the period of recall.
7. His broadly-based application for judicial review of the Parole Board's decision was dismissed by Turner J on 26 April 2002:  EWHC (Admin) 769. On appeal, his case was advanced on much narrower grounds, but the Court of Appeal by a majority (Simon Brown and Sedley LJJ, Hale LJ dissenting) dismissed his appeal:  EWCA Civ 1641,  1 WLR 705.
Trevor Smith: the facts
8. On 8 May 1998 the appellant Smith was convicted of rape and of making threats to kill. He was sentenced to 8 years' imprisonment, reduced on appeal to 6½ years'. He was thus a long-term prisoner within the meaning of section 33(5) of the 1991 Act. By virtue of section 35(1) of that Act, he became eligible for release on licence by the Secretary of State after serving one-half of his sentence, if the Parole Board so recommended. By virtue of section 33(2) of the Act, the Secretary of State was obliged to release him on licence after he had served two-thirds of his sentence. This was his "non-parole date", the date on which he was entitled to be released. In the ordinary way, his licence would have remained in force until the date on which he would (but for his release) have served three-quarters of his sentence: section 37(1). But in this case, because the appellant had been sentenced for a sexual offence, the trial judge made an order under section 44 of the Act, the effect of which was to extend the licence period to the end of the appellant's sentence.
9. On 23 October 2000 the Parole Board refused the appellant's first application for parole. It gave written reasons for its decision, referring to the serious nature of the appellant's offences, his past record of violence, his refusal to undertake courses in prison to address his offending behaviour, his use of class A drugs in prison, his failing of a recent mandatory drugs test and his complete lack of insight.
10. The appellant was released on licence on 7 November 2001, which (taking account of time spent in custody before sentence) was his non-parole date. His licence contained the same conditions as that of the appellant West, save that it named a probation hostel at which he was to live and named a psychiatrist upon whom he was to attend.
11. The appellant lived at the named hostel. Two weeks after his release he was tested for drugs and tested positive for cocaine, benzodiazepine and methadone. He admitted the use of cocaine but denied using the other drugs. He was sent a warning letter on 23 November 2001.
12. On 10 December 2001 the appellant moved at his own request, and with the consent of his probation officer, to a different hostel. On 15 January 2002 he tested positive for cocaine and, three days later, for cocaine and opiates.
13. On 25 January 2002 the appellant's supervising probation officer, with the support of his superior, recommended the revocation of the appellant's licence. He based this recommendation on the appellant's drug use and the risk he thereby presented to the community. It was acknowledged that in every other respect the appellant had complied with his licence conditions, and had kept appointments with the psychiatrist, but the psychiatrist was concerned about the effect of drug abuse, and withdrawal from drugs, on the appellant's personality. The probation officer was worried about the effect of powerful drugs on a man whom he considered to be "volatile, impressionable and potentially dangerous". He was also concerned about his criminal associations in the drug world.
14. The Secretary of State referred the recommendation to the Parole Board to decide whether it should recommend revocation of the appellant's licence under section 39(1) of the 1991 Act. On 4 February 2002 the Parole Board recommended revocation. The Secretary of State accepted this recommendation and recalled the appellant to prison on 6 February 2002. The written reason for revocation given to him was his breach of his licence conditions in testing positive for drugs on two occasions.
15. Solicitors for the appellant submitted lengthy written representations to the Parole Board, asking the Board to recommend the release of the appellant under section 39(5)(b) of the 1991 Act, and the Secretary of State duly referred the appellant's case to the Board under section 39(4)(a). In these submissions the appellant admitted the use of crack cocaine. But he said that, although he had first become addicted to drugs while in prison, he had successfully worked to be drug-free at the time of his release. He denied using other drugs, blamed the drug culture prevalent in both hostels for his reversion to the use of cocaine and drew attention to his own attempts to escape from a cycle of drug addiction. He had himself sought a change of hostel, only to find the second hostel as drug-ridden as the first. He had himself taken steps to obtain advice and counselling. The appellant's solicitors did not ask for an oral hearing by the Parole Board.
16. The Parole Board considered the appellant's representations on 3 April 2002 and decided not to direct the appellant's release. The appellant was not present or represented when this decision was made, and there was no oral hearing. In its written reasons for rejecting the appellant's representations, the Board concluded that the appellant's inability or unwillingness to desist from drugs represented too great a risk to public safety. The appellant remained in prison until the expiry of his sentence on 3 December 2003, having served 22 months during the period of recall.
17. The appellant issued this application for judicial review on 30 December 2002. After a successful interlocutory appeal, the Court of Appeal allowed the appellant to advance all the issues he wished at the substantive hearing, which it reserved to itself. On 31 July 2003, the Court of Appeal (Kennedy and Brooke LJJ and Holman J) dismissed the application:  EWCA Civ 1269;  1 WLR 421.
The provisions for early release, licensing and revocation
18. The statutory provisions and subordinate rules governing the release, licensing and recall of prisoners have been the subject of ceaseless change over the past 10-15 years. I shall confine my summary to the provisions directly relevant to these appeals.
19. The Parole Board has the duty under section 32(2) of the 1991 Act of advising the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners. At the time when the Parole Board considered the release of the appellants after revocation of their licences, it was permitted under section 32(3) of the 1991 Act to hold an oral hearing (in the form of an interview by a Board member) if it thought it necessary or desirable to do so, but was not expressly required to do so. By section 32(5) of the Act, the Secretary of State was empowered to make rules with respect to the proceedings of the Board, but had made no rules relevant to these appeals. He was empowered by section 32(6) to give directions to the Board as to the matters to be taken into account by it in discharging its functions:
20. At the time when the appellant West's licence was revoked, the applicable directions given by the Secretary of State to the Board were to this effect:
The directions applicable in the case of the appellant Smith were longer:
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."
21. Section 37(4) of the 1991 Act required a person subject to a licence to comply with the conditions of the licence. At the relevant time, the recall of short-term and long-term prisoners was governed by section 39 of the 1991 Act which, as amended, provided:
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).
22. Before turning to the issues, I think it convenient to summarise certain uncontroversial but fundamental and relevant principles upon which the sentencing, licensing and recall regimes rest. First, the ordinary duty of the court when imposing a determinate sentence of imprisonment is to impose such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it: section 2(2)(a) of the 1991 Act. I need not address the small minority of cases in which a longer than commensurate sentence may be called for: section 2(2)(b) of the 1991 Act. In fixing this term, whether it be measured in days, months or years, the court will take account of all matters relevant to the art and science of sentencing and may, depending on the facts of the particular case, have regard to all the well-known objects of a custodial sentence (retribution, personal and general deterrence, incapacitation, reform, rehabilitation). But the predominant purpose of the sentence will be punitive and the sentence which the court imposes will represent the period which the court considers that the defendant should spend in custody as punishment for the crime or crimes of which he has been convicted. An appellate court reviewing the sentence will act on the same basis.
23. Secondly, the court which imposes a determinate sentence of imprisonment is of course aware of the statutory provisions governing early release, and should pursuant to Practice Direction (Custodial Sentences: Explanations)  1 WLR 278 outline the effect of these to the defendant when passing sentence. But save in an exceptional case these provisions do not and should not influence the length of the sentence passed. The court does not sentence a defendant to six years' imprisonment because it judges four years' to be the appropriate term, or 3 years' because it judges that the defendant should be incarcerated for 18 months.
24. Thus, thirdly, the sentence passed is not (as it has not within living memory been) a simple statement of the period the defendant must spend in prison. The sentence is in reality a composite package, the legal implications of which are in large measure governed by the sentence passed.
25. While, fourthly, it is true that early release provisions have the practical effect of relieving overcrowding in the prisons, that is not their penal justification. But such justification exists. All, or almost all, determinate sentence prisoners are expected to return to the community on release from prison after serving their sentences. It is in the interests of society that they should, after release, live law-abiding, orderly and useful lives. For a host of practical, psychological and social reasons, the process of transition from custody to freedom is often very difficult for the prisoner. It is accordingly very desirable that the process of transition should be professionally supervised, to maximise the chances of the ex-prisoner's successful reintegration into the community and minimise the chances of his relapse into criminal activity. But of course there will be cases in which such professional supervision may not be, or appear to be, effective. If a prisoner is released, subject to conditions, before the expiry date of the sentence imposed by the court, and he does not comply, or appears not to comply, with the conditions to which his release was subject, a question will arise whether, in the interests of society as a whole, he should continue to enjoy the advantages of release.
26. Lastly, it is plain from the statutory provisions already quoted that the resolution of questions of the type indicated is entrusted, and entrusted solely, to the Parole Board. In exercising this very important function, it is recognised to be an independent and impartial tribunal for purposes of article 6(1) of the European Convention. It is the primary decision-maker, not entitled to defer to the opinion of the Secretary of State or a probation officer: R v Parole Board, Ex p Watson  1 WLR 906, 916. As the materials already cited make clear, the Parole Board is concerned, and concerned only, with the assessment of risk to the public: it must "balance the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury": ibid. The sole concern of the Parole Board is with risk, and it has no role at all in the imposition of punishment: R v Sharkey  1 WLR 160, 162-163, 164.
27. The Parole Board's acceptance of a public law duty to act in a procedurally fair manner when resolving challenges to licence revocations prompts the inevitable question: what does fairness in this context require? Both sides referred to the answer given by Lord Mustill in R v Secretary of State for the Home Department, Ex p Doody  1 AC 531, 560. He there made plain that the requirements of fairness change over time, are flexible and are closely conditioned by the legal and administrative context. Mr Pannick QC, for the Board, pointed out that Lord Mustill did not suggest that an oral hearing was called for, and the prisoners in that case raised no such claim. But the procedure in issue in that case - the administrative fixing by the Secretary of State of the punitive terms to be served by mandatory life sentence prisoners - was very different from the present. The procedure has since been superseded. Such terms are now judicially fixed. Where licence revocations are challenged by mandatory and discretionary life sentence prisoners and Her Majesty's Pleasure detainees, the Parole Board now routinely holds oral hearings. So Lord Mustill's guidance must now be followed in a different legal and factual environment.
28. Further guidance was given by Mason J in Kioa v West (1985) 60 ALJR 113, 127; sub nom Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321, 347:
29. Mr Pannick relied on the statutory context. While section 32 of the 1991 Act expressly provided for oral hearings in some classes of case, those classes did not include cases such as the present in which oral hearings were permitted but not required. That, it was submitted, represented a legislative choice. But the maxim expressio unius exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice, as pointed out by McHugh JA in Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, 349, and Kirby P in Johns v Release on Licence Board (1987) 9 NSWLR 103, 111.