Regina v. Parole Board (Respondents) ex parte Smith (FC) (Appellant) and Regina v. Parole Board (Respondents) ex parte West (FC) (Appellant) (Conjoined Appeals)
59. The European Court has not given a clear decision on this. Maybe Aerts v Belgium (1998) 29 EHRR 50 indicates that a "civil right" is involved here though Aldrian v Austria (1990) 65 DR 337, a decision of the Commission on admissibility points the other way. Perhaps the best indication of the Court's approach is to be found in Ganusauskas v Lithuania (App. 47922/99) decision of 7 September 1999 and Kerr v United Kingdom (App. 44071/98) decision of 7 December 1999. In both of those although the Court dealt with whether there was "the determination of a criminal charge" it did not consider whether a decision to revoke a prisoner's early release and to return him to prison was the determination of a "civil right". I do not consider that the recent decision of the Court in Brown v United Kingdom (App. 968/04) a decision of 26 October 2004 conclusively determines this matter. The Court said, "Even assuming that the right to liberty is a civil right" (and it referred to Aerts) before going on to comment on the rights of the citizen in domestic courts.
60. I of course accept that this is still an open question as far as the European Court of Human Rights is concerned. My opinion on the arguments we have heard in these cases is that the Convention has specifically limited the criminal aspect of the matter to the determination of a "criminal charge" which these are not. Decisions as to recall are not within the meaning of Article 6 concerned with "civil rights." Questions as to the deprivation of liberty by a body like the Parole Board (regarded as a court for this purpose) fall to be dealt with under Article 5 (4) and the common law rules relating to the fairness of proceedings. It is plain from Lord Bingham's recital of the facts that the review in these two cases was not conducted in accordance with the fairness which the common law requires so that detention on recall was not lawful for the purposes of Article 5(4) of the Convention as incorporated in the Human Rights Act 1998.
61. As to the disposal of the two appeals I agree with my noble and learned friend Lord Bingham of Cornhill and would also make the order which he proposes.
LORD HOPE OF CRAIGHEAD
62. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I would allow these appeals, and I would make the same declaration in each of them as he proposes. My reasons are substantially the same as those that he has given, except that I differ from him about the need to reach a concluded view as to whether there was a breach of the civil limb of article 6(1)of the European Convention on Human Rights.
The common law
63. I can well understand the reluctance of the Parole Board to hold oral hearings in other than a very small proportion of those cases which fall outside the categories of mandatory and discretionary life prisoners, extended sentence prisoners and HMP detainees, for whom it has been decided that continuing judicial supervision of the detention is required to satisfy their article 5(1) and 5(4) Convention rights. But I agree that the absence of an oral hearing in these two determinate sentence cases was a breach of the duty to act fairly at common law. For reasons that I shall explain, I think that this means that the proceedings were not conducted in the way a court would be expected to conduct them and that it must follow that there was a breach of the appellants' article 5(4) Convention rights.
64. It is, of course, more costly and time-consuming to deal with cases by means of oral hearings. Arrangements have to be made to ensure that they are conducted fairly. Notices must be given of the witnesses to be called and the substance of their evidence. They will almost always have to be held at the prison or other institution where the prisoner is held. A simple cost-benefit analysis, looking at the matter from the Board's point of view only, will no doubt show that its resources are better employed by dealing with these applications on paper. That, no doubt, is why the number of oral hearings that are being held in these cases is so tiny, despite Simon Brown LJ's observation in the Court of Appeal in West's case  1 WLR 705, 717A-B, para 40 that the Board should be altogether readier than presently they are to hold oral hearings if their determination is likely to turn upon the resolution of important issues of fact.
65. Commenting however on the fact that only four oral hearings were held out of the 1945 cases falling outside the categories mentioned above during the period from 1 April 2003 to 31 October 2004, Mr Pannick said that the Board's experience was that decisions in these cases almost never turn on disputed issues of fact. I would make two comments on this explanation.
66. First, the figures that we have been given appear to me to indicate that there is a long-standing institutional reluctance on the part of the Parole Board to deal with these cases orally. It would not be surprising if a consequence of that reluctance was an approach, albeit unconscious and unintended, which undervalued the importance of any issues of fact that the prisoner wished to dispute. If the system is such that oral hearings are hardly ever held, there is a risk that cases will be dealt with instead by making assumptions. Assumptions based on general knowledge and experience tend to favour the official version as against that which the prisoner wishes to put forward. Denying the prisoner of the opportunity to put forward his own case may lead to a lack of focus on him as an individual. This can result in unfairness to him, however much care panel members may take to avoid this.
67. The second is that the test which Simon Brown LJ had in mind when he made his observation was whether the decision was "likely" to turn upon the resolution of an important factual issue. The question is not whether the case ultimately turns on a disputed issue of fact when the decision is taken. It is whether, when the papers are first looked at, it is likely to do so. This is a more exacting test than that which the Board appears to have been adopting.
68. I agree therefore that the common law test of procedural fairness requires that the Board re-examine its approach. A screening system needs to be put in place which identifies those cases where the prisoner seeks to challenge the truth or accuracy of the allegations that led to his recall, or seeks to provide an explanation for them which was not taken into account or was disputed when his recall was recommended by his supervising probation officer. Consideration then needs to be given to the question whether it is necessary to resolve these issues before a final decision is made as to whether or not the prisoner is suitable for release. If it is, an oral hearing should be the norm rather than the exception.
The Convention rights
69. The fact that the issues which the appellants have raised can be dealt with under the common law does not answer the question whether the decisions that were taken were in breach of their Convention rights. Section 8(1) of the Human Rights Act 1998 provides that, in relation to any act of a public authority which the court finds is unlawful under section 6(1) of that Act, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. The appellants are no longer in custody. But this does not absolve the court of its responsibility, should it find that there was a breach of any of their Convention rights, of considering what order, if any, it should make in recognition of the fact that their rights were breached.
70. The articles of the Convention which the appellants say were breached by the Board's failure to hold an oral hearing in their cases are articles 5(1) and 5(4), together with article 6 in its criminal or alternatively its civil aspects. In my opinion it is necessary for a decision to be taken as to whether the appellants' rights were breached under each of these articles. As the Convention has its own self-contained structure, the question whether the requirements of the common law have been breached or satisfied raises issues which must be dealt with separately from issues about breaches of the Convention rights. As for article 6, it is invoked on the alternative ground that there was here a determination of civil rights and obligations. So it is necessary to decide whether their rights under that aspect of the article were engaged as well as their rights under the criminal aspect.
71. There is one other factor that indicates the need for a decision on the civil aspect of article 6(1). The right to a fair hearing under this article carries with it some ancillary rights that are not usually regarded as part of the general right to procedural fairness in common law. The right to a hearing within a reasonable time and the right to legal assistance of one's own choosing, for example, are expressly guaranteed by article 6. A consideration of the appellants' arguments is incomplete if the question whether they are entitled to invoke these ancillary rights is left undecided.
72. I agree with what Lord Bingham has said about the application of article 5(1) and (4) to these cases. But I should like to say a bit more to explain why I too consider that, if its review is to satisfy the requirements of article 5(4), the Parole Board must conduct the proceedings in a manner that meets the requirement of procedural fairness at common law and why I would hold that, as the proceedings were not procedurally fair in these cases, the appellants' article 5(4) Convention rights were violated.
73. At first sight the proposition that the review by the Parole Board will satisfy the requirements of article 5(4) only if it is conducted in a manner that meets the requirements of procedural fairness at common law risks confusing two things that, out of respect for the structure of the law, ought to be kept separate. The common law is antecedent law: Clayton and Tomlinson, The Law of Human Rights (2000), para 1.33. The introduction of the Convention rights into our law by the Human Rights Act 1998 is a creature of statute. The Act protects Convention rights in a way that differs from the way that common law rights are protected.
74. It is unlawful for a public authority to act in a way which is incompatible with a Convention right: Human Rights Act 1998, section 6(1). And a member of the Scottish Executive has no power to act in a way that is incompatible with any of the Convention rights: Scotland Act 1998, section 57(2). The protection which the Human Rights Act 1998 provides in the case of a person's Convention rights is designed to provide a minimum standard of human rights protection. But it does not restrict any other right or freedom which the law confers: section 11(1)(a). This is where the common law steps in. The requirement of procedural fairness is part of the common law. It is a requirement that applies to bodies in this jurisdiction which have the characteristics of a court within the meaning of article 5(4) because domestic law says so. Common law procedural fairness as such is not a Convention requirement. But the Convention can and does inform the common law, and the common law informs the Convention.
75. It is not enough to satisfy the requirement of article 5(4) that the lawfulness of the detention must be decided by a court to point simply to the Board's independence and to its impartiality. It is, of course, possible to say that the Parole Board is an appropriate body to conduct the review because it is impartial and independent of the executive. But article 5(4) requires that the proceedings themselves must be conducted in the way a court would be expected to conduct them. From this it follows that, to satisfy article 5(4), the Board's procedure for conducting reviews must embody the procedural fairness that the common law requires of a court. Procedural fairness is a requirement of the common law. It is not in itself a Convention requirement. But it is built into the Convention requirement because article 5(4) requires that the continuing detention must be judicially supervised and because our own domestic law requires that bodies acting judicially, as a court would act, must conduct their proceedings in a way that is procedurally fair. As Lord Bingham has explained, the common law duty of procedural fairness required that the appellants be offered an oral hearing into their representations against revocation of their licences. As this was not done, the review of their detention was not conducted as a court would be expected to conduct it, so there was, in my opinion, a violation of their article 5(4) Convention rights.
Article 6 - civil rights and obligations
76. For all the reasons that Lord Bingham has given, I agree that the appellants' rights under article 6(1) in its criminal aspect were not engaged by the decisions that the Board took in these cases. I wish however to examine more fully the question whether their rights were engaged under article 6 in its civil aspect.
77. The appellants submit that the decisions which followed upon their representations against their recall to prison involved a determination of their civil rights and obligations within the meaning of article 6(1) of the Convention. In Aerts v Belgium (1998) 29 EHRR 50 the applicant had been detained, following his arrest for assault, in the psychiatric wing of a prison prior to his transfer to a social protection centre. He complained of an infringement of his right of access to a court for determination of the lawfulness of his detention because he had been refused legal aid for an appeal from the decision of the court of first instance on points of law to the Court of Cassation. At p 88, para 59 the European Court said that the question which was at issue was the lawfulness of the deprivation of liberty and that the right to liberty "which was thus at stake" was a civil right.
78. Mr Fitzgerald QC submitted that it was clear, and established by this decision, that the right to liberty was a civil right within the meaning of article 6(1). He said that the appellants' civil right to liberty was engaged because they were in a state of actual liberty before they were recalled, and because they would have been entitled to sue for false imprisonment if they had not been released after they had completed the relevant proportion of their sentences: R v Governor of Brockhill Prison, Ex p Evans (No 2)  2 AC 19.
79. In my opinion it does not follow from the fact that the right to liberty can be described generally as a civil right that the appellants' civil rights within the meaning of article 6(1) were engaged in this case. The question whether this Convention right is engaged, if at all, has to be decided in the light of the proceedings that are in issue and the nature of the dispute. As I said in R (McCann and Others) v Crown Court at Manchester  1 AC 787, 818, para 59, it is possible that the proceedings that are in issue will fit neither of the two descriptions of rights in article 6(1) - criminal or civil. Various examples of cases falling outside the reach of article 6 are given in Clayton and Tomlinson, The Law of Human Rights (2000), para 11.172. Furthermore, as the decision of the European Court in Pabla Ky v Finland, application no 47221/99, 22 June 2004, reminds us, the question whether Convention rights are infringed is a practical one, not one to be decided in the abstract. In para 29 of that decision the court emphasised that the question is always whether, in a given case, the requirements of the Convention are met. The context is all-important.
80. This approach is further demonstrated by Brown v United Kingdom, application no 968/04, 26 October 2004. In that case the applicant complained that his recall to prison was a breach of his rights under articles 5 and 6 of the Convention. The court said:
In Kerr v United Kingdom, application no 44071/98, 7 December 1999, the applicant complained among other things that he was denied a fair hearing of the revocation and continuance of his licence under article 6(1). The part of that article that was treated by the court as relevant to his case was the criminal part only. No mention was made of the civil part. In Ganusauskas v Lithuania, application no 47922/99, 7 September 1999, the applicant alleged that the proceedings whereby he was recalled to prison violated article 6. The court observed that that provision was not applicable in his case "for the proceedings did not involve the determination of 'any criminal charge against him' within the meaning of article 6 of the Convention." Here too no mention was made of the civil part of that article.
81. The conclusion which I would draw from the observations which the court made in Brown's case, and from the fact that in neither Kerr nor in Ganusauskas was a breach of the article 6 civil right even contemplated, is that the article 6 civil right is not infringed by proceedings of the kind that are in issue in this case, so long as the individual has access to the domestic courts to assert his right to liberty. The proceedings of the Parole Board did not deprive the appellants of that right of access. What the Board was doing was giving effect, in the performance of functions given to it by statute, to the sentences which had previously been imposed by the judge when the appellants were convicted. The sentencing procedure which he conducted satisfied the requirements of article 5(1)(a). When the appellants were recalled to custody the requirements of article 5(4) would have been satisfied by the review of their recall by the Parole Board which, due to its independence from the executive and its impartiality, has the characteristics of a court for the purposes of that article if an oral hearing had been offered to them. None of the elements that were inherent in the sentence from the beginning were being enlarged or altered. I think that it is clear that the appellants were not entitled to invoke the additional protection of the article 6(1) civil right in relation to the proceedings before the Board in these circumstances.
Headings and Side notes: the Parole Board Rules 2004
82. One of the issues that arose in R v Montila  1 WLR 3141 was whether the headings to each group of sections and the side notes, or marginal notes, to each section were a legitimate aid to the construction of the sections to which they relate: see para 31 of the Appellate Committee's report in that case. The conclusion which the Committee reached was that the headings and side notes, which are unamendable, are as much part of the contextual scene of the statute as the Explanatory Notes, which do not form part of the Bill and are not endorsed by Parliament, and ought to be open to consideration as part of the enactment when it reaches the statute book: para 34.
83. The observation in para 34 in Montila's case that these materials are unamendable was an important qualification. It is highlighted by an error in the Parole Board Rules 2004 which was identified in the course of the hearing of the appeal. I wish to add these words of explanation as to what that error was and how it appears to have arisen, in the hope that the pitfall into which the draftsman of these Rules fell may be avoided in future cases.
84. The 2004 Rules deal with cases before the Board which fall into the categories identified by Rule 2(1), which provides:
Part IV, which is headed "Proceedings with a hearing" applies to the cases identified by Rule 14(1), which provides:
85. Mr Pannick said that the 2004 Rules were not intended to confer a right to an oral hearing on determinate sentence prisoners. The Parole Board Rules 1992 had given the right to an oral hearing to discretionary life prisoners, following the decision of the European Court in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666. This right was extended to HMP detainees by the Parole Board Rules 1997, following the decision of the European Court in Hussain v United Kingdom (1996) 22 EHRR 1. The 2004 Rules were intended to extend the right to mandatory life prisoners and to prisoners sentenced to extended sentences: R (Anderson) v Secretary of State for the Home Department  1 AC 837; R (Sim) v Parole Board  QB 1288. It had not been suggested that it was necessary for short-term and long-term prisoners to be given that right, and it was not the intention to do this when the 2004 Rules were brought into effect on 1 August 2004.
86. The side note to section 32 of the 1997 Act is "Recall of life prisoners while on licence". The words "any life prisoner" appeared in each of the subsections of that section when it was originally enacted. It dealt exclusively with life prisoners as defined in section 34(1) of that Act. A new subsection (5) was substituted by the Criminal Justice Act 2003. It requires the Secretary of State to give effect to a direction by the Parole Board under that section for the immediate release on licence of the life prisoner whose case has been referred to the board under section 32(4). The section still deals with life prisoners only, so the side note remains an accurate description of its contents. The reference in Rule 14(1) to section 32(4) is in keeping with Mr Pannick's explanation of the purpose of the 2004 Rules.
87. The side note to section 39 of the 1991 Act is: "Recall of long-term and life prisoners while on licence". This was an accurate description of the contents of the 1991 Act when it was enacted. However, as a result of a complex series of repeals and associated savings by the 1997 Act and the Crime and Disorder Act 1998, section 39 no longer deals with life prisoners. It deals with short-term or long-term prisoners who have been released on licence under Part II of the 1991 Act, as amended. The effect of these amendments has been to change the subject matter of section 39 of the 1991 Act from that which was identified by the side note. The reference to section 39(4) in Rule 14(1) has the effect of extending the benefit of oral hearings to prisoners who are serving determinate sentences. This is contrary to what Mr Pannick said was the intended effect of the 2004 Rules.
88. The explanation for this error is not hard to find. Section 39 of the 1991 Act appears in its amended form in Halsbury's Statutes and in the version of it which is available online. But the side note to the section is unchanged. This is because of the rule that side notes are not capable of being amended by Parliament. The editors of Halsbury's Statutes have been careful to point in a footnote that, in view of the amendments, the side note is no longer accurate. But the misleading impression that its preservation creates remains. It is enhanced by the fact that in 2001 side notes were moved from the side of each section in the Bill when it was introduced and in the Queen's Printers' copy of the enactment. They now appear, with greater emphasis as to their importance, as headings in bold type on the same line as the clause or section number. That is how they also appear in all the unofficial versions of the statutes that are now available.
89. The 2004 Rules may need to be amended to correct the error that has arisen, bearing in mind the effect of your Lordships' decision in this case that the common law right to procedural fairness does not require that determinate sentence prisoners be given the same absolute right to an oral hearing which has been given to prisoners in the other categories. But I suggest that similar misunderstandings could be avoided in the future if a section whose substance has been so changed as to make the side note an unreliable guide to its contents were to be repealed and replaced by an entirely new section - which would, of course, be provided, after consultation with Parliamentary Counsel, with its own appropriate side note. Consolidation would, no doubt, be the ideal. But, just as modern methods of updating make this less necessary, so there is a greater need to adapt Parliamentary practice and procedures to what these modern methods require if the updated legislation is to be presented in that way with sufficient clarity.LORD WALKER OF GESTINGTHORPE
90. I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I am in full agreement with it, and for the reasons given by Lord Bingham I would allow both appeals and make the orders which he proposes.