Regina v. Parole Board (Respondents) ex parte Smith (FC) (Appellant) and Regina v. Parole Board (Respondents) ex parte West (FC) (Appellant) (Conjoined Appeals)
30. In considering what procedural fairness in the present context requires, account must first be taken of the interests at stake. On one side is the safety of the public, with which the Parole Board cannot gamble: R v Parole Board, Ex p Watson, above, at 916-917. On the other is the prisoner's freedom. This is a conditional, and to that extent precarious, freedom. In Weeks v United Kingdom (1987) 10 EHRR 293, para 40, the European Court recognised the freedom enjoyed by a discretionary life sentence prisoner on licence as "more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen" but as, nonetheless, a state of liberty for the purposes of article 5 of the Convention. The value of freedom to the prisoner, even when conditional, was acknowledged by the Supreme Court of the United States in Morrissey v Brewer 408 US 471 (1972) para 12, and by Dickson J, dissenting (although not on this point), in the Supreme Court of Canada in Howarth v National Parole Board (1974) 50 DLR (3d) 349, 358. It is noteworthy that a short-term prisoner who has served half his sentence and a long-term prisoner who has reached his non-parole date have a statutory right to be free: a conditional right, but nonetheless a right, breach of which gives an enforceable right to redress (see R v Governor of Brockhill Prison, Ex p Evans (No 2)  2 AC 19).
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:
32. In Canada (Corrections and Conditional Release Act, 1992, section 140(1)(2)) and New Zealand (Parole Act 2002, section 65) statutory provision is made for oral revocation hearings. In the United States, most states had already made such provision when the Supreme Court held such hearings to be necessary: Morrissey v Brewer, above, per Burger CJ, 487-488, f.n.15, per Brennan J, 491. In Australia, courts have repeatedly held that there must be an oral hearing: Baba v Parole Board of New South Wales, above, 345; Todd v Parole Board (1986) 6 NSWLR 71, 81-82; Johns v Release on Licence Board, above, 116. In this country, as already noted, revocation hearings are routinely held in the cases of life sentence prisoners and HMP detainees.
33. The argument addressed to the Court of Appeal on behalf of the appellant West did not rely on the common law. Simon Brown LJ did however record (para 2) that in the year ending 31 March 2002 the Board had considered 516 cases in which determinate sentence prisoners had made representations against recall and had during that year held an oral hearing in only one. He observed (para 40) that the Board "should be altogether readier than presently they are to hold oral hearings if in truth their determination is likely to turn upon the resolution of important issues of fact". But it appears that, in the judgment of the Board, very few cases turn on such issues. In the nineteen-month period from 1 April 2003 to 31 October 2004, the House was informed, the Board considered representations against the recall of determinate sentence prisoners in 1945 cases but held oral hearings in only 4.
34. The appellant Smith did rely on the common law in his appeal to the Court of Appeal. Kennedy LJ (para 37) held that no oral hearing was required in his case, accepting that the correct test was that propounded by the Board's witness, Mr McCarthy, in his statement:
Kennedy LJ considered that in Smith's case the primary facts (para 37) were not in dispute. Brooke LJ agreed (para 49). Holman J also agreed (para 55), relying on Lord Mustill's observations in Doody. There was, he held (para 56), no objective need for an oral hearing, since there was no dispute on the primary facts, the Board's task was the assessment of risk and the procedure adopted was not "actually unfair".
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.
36. Article 5(1) of the European Convention, so far as relevant, provides:
It seems to me plain that in cases such as the appellants' the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court. This view may have founded the Court's recent admissibility decision in Brown v United Kingdom (Appn No 968/04, 26 October 2004), p.6. The same result was reached in Ganusauskas v Lithuania (Appn No 47922/99, 7 September 1999), where no break was found in the causal link between the original conviction and the re-detention. But the revocation decision must comply with article 5(4), to which I now turn.
37. Article 5(4) provides:
It is accepted that for the purpose of revocation proceedings the Parole Board has the essential features of a court within the meaning of article 5(4), and although, under section 39(5)(b), it can only recommend the release of a recalled discretionary sentence prisoner, its recommendation has the effect of an order since the Secretary of State must give effect to it. Convention jurisprudence establishes that the judicial review of the lawfulness of detention must be wide enough to bear on those conditions which, under the Convention, are essential for the lawful detention of a person in the situation of the particular detainee: Van Droogenbroeck v Belgium (1982) 4 EHRR 443, para 49; Weeks v United Kingdom (1987) 10 EHRR 293, para 59; Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, para 79; E v Norway (1990) 17 EHRR 30, para 50. That means, for present purposes, that the Parole Board should be empowered (a) to examine whether circumstances have arisen sufficient in law to justify further detention of a determinate sentence prisoner released on licence and, if so, (b) to decide whether the protection of the public calls for the further detention of the individual detainee. The Parole Board is empowered to discharge those functions. Its review will in my opinion satisfy the requirements of article 5(4) provided it is conducted in a manner that meets the requirement of procedural fairness already discussed.
Article 6 - criminal
38. Article 6 guarantees certain important rights to everyone in the "determination .. of any criminal charge" against them. The appellants contended that the revocation hearing in effect involved the determination of a criminal charge against them. This argument was advanced by Mr Clayton QC for the appellant West, and was adopted by Mr Fitzgerald QC for the appellant Smith. It was the only argument relied on by Mr Clayton in the Court of Appeal, but he was permitted before the House to adopt the other arguments advanced by Mr Fitzgerald.
39. Mr Clayton referred to the features of a criminal charge identified in Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 82, which have been rehearsed and applied in many cases, attaching significance in particular to the third feature, "the degree of severity of the penalty that the person concerned risks incurring". It was necessary, he argued, "to look beyond the appearances and the language used and concentrate on the realities of the situation": Ezeh and Connors v United Kingdom (2003) 39 EHRR 1, para 123. The reality here was that the appellants were threatened with loss of liberty for a substantial period as a result of conduct alleged against them. There could be criminal charges for quite minor delinquencies (as in Özturk v Germany (1984) 6 EHRR 409 and Lauko v Slovakia (1998) 33 EHRR 994) or where the defendant was subjected only to a fine (as in AP, MP and TP v Switzerland (1997) 26 EHRR 541 and Garyfallou AEBE v Greece (1997) 28 EHRR 344). In contrast, the liberty of the appellants was at stake. As originally enacted, section 38 of the 1991 Act provided that a short-term prisoner who had been released on licence and had failed to comply with his licence conditions should be liable on conviction in a magistrates' court to a fine and to an order for his recall to prison for up to 6 months. The section had been repealed, and the treatment of short-term prisoners assimilated, in this respect, with that of long-term prisoners. The original section made plain that recall was a penal process and the changed procedure had altered its appearance, not its reality.
40. There are several steps in this argument which I would accept, but I would reject the conclusion for one determinative reason. The distinguishing feature of a criminal charge is that it may lead to punishment. A challenge to revocation of a licence may lead to detention imposed to protect the public but it cannot lead to punishment. It is of course true that the prevention of further offending, for a period, is always an effect and often an object of a determinate sentence of imprisonment, but the primary purpose of that sentence is punitive and that is true of most criminal sentences. The European Court has recognised this. In Engel, above, para 82, it observed that deprivations of liberty "liable to be imposed as a punishment" ordinarily belonged to the criminal sphere. It repeated this opinion in Campbell and Fell v United Kingdom (1984) 7 EHRR 165, para 72. In Benham v United Kingdom (1996) 22 EHRR 293, para 56, it found that proceedings to enforce payment of the community charge had "some punitive elements". In Lauko v Slovakia, above, para 58, it described a fine imposed for nuisance as having "a punitive character, which is the customary distinguishing feature of criminal penalties". In Ezeh and Connors, above, para 124, the awards of additional days by the governor were rightly held to "constitute fresh deprivations of liberty imposed for punitive reasons after a finding of culpability". The contrast is clear. In Ganusauskas v Lithuania (Appn No 47922/99), an admissibility decision, the recall of the applicant to prison was held not to involve the determination of any criminal charge against him. A similar view was taken in Brown v United Kingdom (Appn No 968/04, 26 October 2004), pp 6-7. I would reject also the argument based on section 38 of the 1991 Act as originally enacted. A procedure providing for charge, trial and punishment in a criminal court was replaced by one conducted without charge, without trial and without punishment by a body whose sole remit is to protect the public. That is a change of substance, not form. It is not an answer to say that, whatever the reality, the outcome feels to the detainee like punishment.
41. These are the reasons which led the Court of Appeal majority to reject Mr Clayton's argument, which I would endorse. Although Hale LJ accepted the argument, she made very plain (paras 48-49) her discomfort in seeking to answer what she regarded as the wrong question.
Article 6(1) - civil
42. Certain rights, less extensive than in the determination of a criminal charge, are guaranteed by article 6(1) to anyone in "the determination of his civil rights and obligations". The appellants contended that, if their challenges to revocation of their licences did not involve the determination of a criminal charge, they involved a determination of their civil rights and obligations within the meaning of article 6(1). The Board said they did not.
43. The strength of the appellants' argument lay in their undoubted enjoyment, after release, of a conditional and revocable right to freedom. This could readily be regarded as a civil right, and in Aerts v Belgium (1998) 29 EHRR 50, para 59, the Court observed that "the right to liberty, which was thus at stake, is a civil right". But the Board pointed to decisions capable of supporting a different result. In Aldrian v Austria (1990) 65 DR 337, 342 an admissibility decision, the Commission held:
There are some determinations, perhaps involving preventative measures, which do not fall within either limb of article 6(1): Maaouia v France (2000) 33 EHRR 1037, paras 35-39; Ferrazzini v Italy (2001) 34 EHRR 1068, paras 28-30. A prisoner's challenge to recall was assumed but not held in Brown v United Kingdom (Appn No 968/04, 26 October 2004), p 7, to be capable of engaging a civil right, but the applicant's claim under this head was found inadmissible, for reasons which are not immediately compelling.
44. It is not in my opinion necessary to resolve this question in the present cases since, whether or not the civil limb of article 6(1) is engaged, determinate sentence prisoners wishing to challenge the revocation of their licences have the protection of the Board's common law duty of procedural fairness, and I am not persuaded that the civil limb of article 6(1), even if applicable, would afford any greater protection. I would therefore prefer to defer expressing a concluded opinion on this question until a case arises in which a decision will have some practical effect.
45. In his representations against revocation the appellant West offered the Board explanations, which he said he could substantiate, of his failure to keep an appointment with his probation officer and of the incident at his ex-partner's hostel. The Board could not properly reject these explanations on the materials before it without hearing him. He admitted spending one night away from his approved address, staying (he said) with a cousin. While this was a breach of his licence conditions, it is not clear what risk was thereby posed to the public which called for eight months' detention. His challenge could not be fairly resolved without an oral hearing and he was not treated with that degree of fairness which his challenge required.
46. The resort to class A drugs by the appellant Smith clearly raised serious questions, and it may well be that his challenge would have been rejected whatever procedure had been followed. But it may also be that the hostels in which he was required to live were a very bad environment for a man seeking to avoid addiction. It may be that the Board would have been assisted by evidence from his psychiatrist. The Board might have concluded that the community would be better protected by encouraging his self-motivated endeavours to conquer addiction, if satisfied these were genuine, than by returning him to prison for 2 years with the prospect that, at the end of that time, he would be released without the benefit of any supervision. Whatever the outcome, he was in my opinion entitled to put these points at an oral hearing. Procedural fairness called for more than consideration of his representations, on paper, as one of some 24 such applications routinely considered by a panel at a morning session.
47. I would allow both appeals. I would in each case make a declaration that the Parole Board breached its duty of procedural fairness owed to the appellant by failing to offer him an oral hearing of his representations against revocation of his licence and was accordingly in breach of article 5(4) of the Convention. The Board must pay the costs of the appellant Smith in the House and below. The parties are invited to make written submissions within 14 days on the appropriate costs order in the case of the appellant West.
LORD SLYNN OF HADLEY
48. It is perhaps not surprising that the Parole Board should have felt initially that it was right, or that through available resources they were constrained, to decide as many applications as possible by prisoners whose licence was revoked and who were recalled to prison, without anything approaching a court process, or even an oral hearing. Such a process is time consuming and expensive and some of the applications may on the face of it have appeared without merit. But the facts and the arguments addressed to your Lordships on behalf of the applicants in these two cases have made it plain that in respect of determinate sentence prisoners the decisions taken (where such revocation has been ordered) can have a serious effect on the liberty of the applicant. If the decision is taken on the basis of a misunderstanding of the law or of a failure to appreciate the facts relied on there can be a very serious interference with the prisoner's liberty albeit that liberty is a conditional right. There is a risk that if only written representations are looked at a decision may be taken without a full appreciation of what really matters. When we are told of the number of oral hearings which have been held in practice in respect of the very large number of applicants, it is clear that the risk is serious.
49. To alleviate this risk is well within the competence of the common law. On this aspect of the appeal I am in full agreement with the opinion of my noble and learned friend Lord Bingham of Cornhill which I have had the advantage of reading in draft.
50. There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify actions said to be a breach of licence conditions, or where the officer's assessment needs further probing, fairness may well require that there should be an oral hearing. If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the Board should be predisposed in favour of an oral hearing. On any view the applicant should be told that an oral hearing may be possible though it is not automatic; if having been told this the applicant clearly says he does not want an oral hearing then there need not be such a hearing unless the Board itself feels exceptionally that fairness requires one.
51. The greater part of the argument in these appeals has, however, centred on Articles 5 and 6 of the European Convention on Human Rights as incorporated in the Human Rights Act 1998. It seems to me right therefore to express a view on these issues even though in most if not all cases compliance with the common law duty may be all that is required.
52. I gratefully refer to and do not repeat Lord Bingham of Cornhill's analysis of the decisions of the European Court and it is against that background that I can state my conclusions briefly.
53. Article 5 (1) of the Convention as set out in Schedule 1 to the 1998 Act provides that
54. In the absence of a specific challenge to the conviction, when the prisoner begins his sentence, there is clearly lawful detention by a competent court. Furthermore that sentence is subject to all the provisions of release on licence and revocation provided for by statute and the rules applicable to determinate sentence prisoners. My initial view was that there are not two formal orders for detention; it is a combined sentence and, in the subsequent decisions as to licence and revocation and recall, the Parole Board is giving effect to the initial sentencing of the trial judge. If that is right, recall from conditional release was itself empowered by the initial sentence of the court.
55. I have, however, been persuaded by Mr Fitzgerald QC that this is too restrictive an approach and that recall, even of someone who has only a conditional right to his freedom under licence ("more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen" (Weeks v United Kingdom 10 EHRR 293), is a new deprivation of liberty by detention. The prisoner is therefore entitled to take proceedings by which the lawfulness of that detention can be decided speedily by a court under Article 5 (4). Review by the Parole Board of the recall decision, however, if conducted in accordance with the fairness which the common law requires, is in my view a compliance with Article 5 (4) and therefore there is no breach of this Article.
56. Article 6 is divided into two parts. The second part is that in the determination of "any criminal charge against him" everyone is entitled to the rights set out in Article 6. The allegation against the prisoner released on licence is that he has breached the terms of his licence. The consequence is that he may be recalled under rules made by the Secretary of State if he is likely to commit further offences or if his breach of conditions undermines his supervision which is intended to protect the public, to prevent the prisoner re-offending and to ensure his successful integration into the community. As Lord Bingham of Cornhill has stated, a primary purpose of sentence after trial is to punish. That is an essential element of the sentence. In Amand v Home Secretary and Minister of Defence of Royal Netherlands Government  AC 147, where the question was whether the Divisional Court's dismissal of an application was a "judgment in a criminal cause or matter," Lord Wright said,
Recall of a prisoner on licence is not a punishment It is primarily to protect the public against further offences, though it may also in some cases lead to further training which would enable the prisoner on a subsequent release to integrate more readily into the community. The Parole Board in reaching its decision is as a consequence not determining "a criminal charge" even if (which for present purposes I assume) a recommendation by the supervising officer that the prisoner should be recalled, because in his opinion a licence condition has been breached, is a "charge" within the meaning of Article 6 of the Convention.
57. The first part of Article 6 on the other hand provides that the rights laid down in that Article are enjoyed by everyone in the "determination of his civil rights." The European Court has categorised various rights recognised by the law as not being "civil rights" within the meaning of the Convention, even if they are not rights in respect of criminal proceedingssee inter alia decisions on tax disputes and immigration rulings. The fact that the Parole Board's decision is not the determination of a criminal charge thus does not necessarily mean that it is the determination of his civil rights.
58. The Article clearly distinguishes between civil and criminal but the rights conferred in the latter context are those relative (i.e. limited) to the "determination . . . of any criminal charge against him". What happens in cases like the present is not the determination of a criminal charge. It is a decision as to a procedure laid down for the carrying out of a lawful sentence of a court. The rights in that criminal procedure may attract a need for fairness under the common law. It does not necessarily convert them into "civil rights" for the purpose of the Convention.