(back to preceding text)

19.  In support of this point, reference can be made to the decision of the ECtHR in Gebura v Poland (Application No 63131/00) (unreported) 6 March 2007. The applicant in that case had, by court proceedings, established that he had under Polish law a right to release on licence after serving three-quarters of a determinate sentence. He complained that he had been unlawfully detained for 48 hours before being released, in violation of article 5.1. This claim succeeded. The court had this to say about the right to conditional release:

“31. As regards the characteristics of conditional release under Polish law as it stood at the material time, the court notes that the applicant had had a right to apply for conditional release after having served the statutory minimum term of his prison sentence. It is true that the granting of conditional release is left to the court’s discretion. However, once conditional release had been granted, the applicant had the right to be released without delay, as provided for in the Ordinance of the Minister of Justice of 27 August 1998 and on completion of the necessary formalities.

32. The Government argued that, despite the Court of Appeal’s final decision of 12 April 2000, the applicant’s continued detention until his release on 14 April 2000 remained justified under article 5 § 1 (a) as constituting ‘the lawful detention of a person after conviction by a competent court'. The court does not accept that proposition. It is true that the Convention does not guarantee a right to have a penalty imposed by a court in criminal proceedings suspended for a probationary period (see X v Switzerland, no 7648/76, Commission decision of 6 December 1977, Decisions and Reports 11, p 190). However, in so far as the domestic law provided for such a right and once the conditional release had been granted, the applicant had a right to be released. Consequently, his continued detention following the final decision on his conditional release cannot be considered ‘lawful’ under article 5 § 1 (a). That finding is not affected by the possibility of a revocation of conditional release in cases where a person has failed to comply with the relevant conditions or committed a new offence, provided that there is a sufficient connection between his conviction and a recall to prison (see Stafford v United Kingdom [GC], no 46295/99, § 81, ECHR 2002-IV).”

20.  No complaint fell to be made in that case of a violation of article 5.4, nor did the court have to consider whether the applicant had had a justiciable claim to be released. It is hard to avoid the conclusion that he had, however, as he obtained a court order for release by application to the court. If so, I find it hard to see on what principled basis the ECtHR could have avoided finding that article 5.4 entitled him to access to the Polish court to seek release had this been denied him.

21.  Whether the respondent and persons in his position have a justiciable right to be released on licence provided that the relevant criteria are satisfied is a question that turns on our domestic law, and to that law I now come.

22.  The Secretary of State placed considerable reliance on the decision of your Lordship’s House in R (Giles) v Parole Board [2003] UKHL 42; [2004] 1 AC 1. The facts were similar to those in Mansell. The claimant had been given a longer sentence than commensurate with the seriousness of the offence pursuant to section 2(2)(b) of the Criminal Justice Act 1991 in order to protect the public from the risk of the serious harm that he posed. He was sentenced to consecutive sentences totalling seven years in all. The judge did not, as the judge had in Mansell, say what sentence he would have imposed simply by way of punishment and deterrence. Under section 35(1) of the 1991 Act the claimant was eligible for release on the recommendation of the Parole Board after serving half his sentence. He began proceedings for judicial review when he was approaching that half-way point. In accordance with the practice then prevailing the Parole Board would only consider his case on the basis of his dossier. He argued that he was entitled to an oral hearing at this review and invoked article 5.4 as requiring this. His argument was not that article 5.4 applied in the case of any consideration for release by the Parole Board. Rather he sought to draw a distinction between his sentence and a discretionary life sentence. The commensurate part of his sentence fell to be compared with the life sentence tariff. Once each was passed the only issue was whether the prisoner remained a danger and this issue required a periodic review that satisfied article 5.4. Implicit in this argument was the assumption that he had already served the commensurate part of his sentence. This was not necessarily so. Lord Bingham pointed out that there was no reason why the extended part of the sentence should not exceed the commensurate part. In such circumstances the claimant’s argument would entitle him to a parole hearing before the domestic regime.

23.  Lord Bingham commented, at para 10:

“That brings one back to consideration of the core rights which article 5(4), read with article 5(1), is framed to protect. Its primary target is deprivation of liberty which is arbitrary, or directed or controlled by the executive. In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence. Since the first offence involved what the sentencing judge described as ‘a savage attack’ and the appellant had threatened further violence against his first victim, the term imposed does not appear in any way excessive. The sentence left nothing to the executive, since the Parole Board, whose duty it is to consider release at the halfway stage of the sentence, is accepted to be a judicial body.”

As Lord Brown points out it might seem implicit in the last sentence that Lord Bingham considered that the parole decision at the half way stage was one that was required to satisfy article 5.4. But as Lord Brown also points out there are other passages in the speeches that suggest that once a determinate sentence has been passed, there is no scope for the application of article 5.4.

24.  Lord Hope of Craighead summarised his conclusions as follows, at para 51:

“It is plain from this summary that the basic rule which the European court laid down in De Wilde, Ooms and Versyp v Belgium (No 1) 1 EHRR 373 continues to apply. 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, the review 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.”

Had Lord Hope applied these observations to a case such as the present, where the prisoner’s release on parole depends on the decision of the executive in the form of the Secretary of State and depends essentially on whether the prisoner still poses a danger (as to which see further below) it may well be that he would have concluded that article 5.4 was applicable.

25.  I now come to two decisions of this House which have a more direct, and in my view determinative, relevance to the issue before your Lordships. In the conjoined appeals of West and Smith in R (West) v Parole Board [2005] UKHL1; [2005] 1WLR 350 the appellants had been sentenced to determinate sentences, released on licence, recalled and then considered by the Parole Board for re-release. They contended that the Parole Board had failed to satisfy the requirements of article 5.4 in that it had failed to afford them an oral hearing when considering their re-release. The House upheld this submission but ruled that the Parole Board’s procedures were capable of satisfying the requirements of article 5.4.

26.  Lord Bingham said this about the role of the Parole Board, at para 25:

“While…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.”

I observe that this passage would seem to apply equally to the role of the Parole Board when considering release for the first time and when considering whether a prisoner who has been recalled should be released a second time.

27.  Lord Slynn of Hadley said:

“54…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 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, 307, para 40), 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.”

This reasoning could equally be applied to the initial decision by the Parole Board whether to grant the prisoner conditional liberty. Lord Hope agreed with what Lord Bingham had said about the application of article 5.4 as did Lord Walker of Gestingthorpe and Lord Carswell.

28.  This decision is in direct conflict with the reasoning of the Strasbourg court in Brown. 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. The passage of Lord Bingham’s speech cited by Lord Brown in support of his conclusion does not, I suggest, accurately set out the basis on which the court determines the length of a sentence as I have earlier explained this.

29.  Finally I turn to the decision of this House in three conjoined appeals by Clift, Hindawi and Headley; R(Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484. As Lord Brown has explained, the position of Clift was exactly comparable to that of the respondent in the present case. The grant of parole to the others depended on the decision of the Secretary of State rather than the Parole Board because they were the subject of deportation orders. Mr Owen QC, who represented them as he does the respondent before your Lordships, did not advance the argument that article 5.4 applied in such a way as to entitle them to have their parole decisions taken by a body with the attributes of a court, namely the Parole Board. Instead it was argued that their treatment infringed article 14 on the basis that it wrongly discriminated against them in comparison to other long term prisoners. This argument failed in relation to Mr Clift on the narrow ground that, while there was discrimination, the ground for that discrimination was not one of those proscribed by article 14. The claims of the other two succeeded. In the case of all three there was a seminal issue as to whether article 5 applied to the release decision, so as to open the door to the application of article 14. That issue is directly relevant to the issue before your Lordships. The House decided it in favour of the appellants.

30.  This is what Lord Bingham had to say about the applicability of article 5:

“16. This argument is in my judgment a mixture of the true and the false. I would agree that the sentences passed on the respective appellants satisfied article 5(1)(a) and provided lawful authority for the detention of the appellants until such time as, under domestic law, their detention became unlawful. Giles [2004] 1 AC 1 established that a prisoner sentenced to a determinate term of years cannot seek to be released at any earlier time than that for which domestic law provides. During the currency of a lawful sentence, article 5(4) has no part to play. But the Secretary of State’s argument founders, in my opinion, on a failure to recognise both the importance, in our system, of the statutory rules providing for early release and the close relationship between those rules and the core value which article 5 exists to protect.

17. The Convention does not require member states to establish a scheme for early release of those sentenced to imprisonment. Prisoners may, consistently with the Convention, be required to serve every day of the sentence passed by the judge, or be detained until a predetermined period or proportion of the sentence has been served, if that is what domestic law provides. But this is not what the law of England and Wales provided, in respect of long-term determinate prisoners, at the times relevant to these appeals. That law provided for a time at which (subject to additional days of custody imposed for disciplinary breaches) a prisoner must, as a matter of right, be released, and an earlier time at which he might be released if it was judged safe to release him but at which he need not be released if it was not so judged.

18. A number of grounds (economy and the need to relieve overcrowding in prisons) have doubtless been relied on when introducing pre-release schemes from determinate sentences such as those under consideration here. But one such consideration is recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence; that in some cases those interests will be best served by releasing the prisoner at the earlier, discretionary, stage; and that in those cases prisoners should regain their freedom (even if subject to restrictions) because there is judged to be no continuing interest in depriving them of it. I accordingly find that the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of article 5…”

31.  Applying this reasoning to the case of Clift Lord Bingham said this, at para 33:

“When, in October 2002, the Secretary of Sate rejected the Parole Board’s recommendation that Mr Clift be released on parole, discretionary lifers and HMP detainees had already been brought within the definitive jurisdiction of the Parole Board, and Stafford v United Kingdom (2002) 35 EHRR 1121, requiring the same procedure for mandatory lifers, had already been decided. The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. Anomalies are commonplace. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise. I would accordingly resolve this issue in favour of Mr Clift and against the Secretary of State.”

32.  Paragraphs 16 to 18 merit careful analysis. The critical question is the point at which the detention of a prisoner becomes, or may have become, unlawful under domestic law. It is at that point that article 5(1)(a) may no longer provide justification for the prisoner’s detention and article 5(4) entitles the prisoner to a judicial challenge of the lawfulness of his continued detention. For most determinate prisoners it is the half way point. That is the point at which they are automatically entitled to release. Article 5(4) applies at that point. It is, of course, satisfied by the right to seek judicial review for the issue of whether the prisoner is entitled to release is cut and dried and can readily be ascertained by that process.

33.  What of those determinate prisoners whose release depends upon the decision of the Parole Board? I consider that our domestic law entitles them to release provided that the criteria for their release are satisfied. Article 5.4 entitles them to judicial determination of that question and timely consideration by the Parole Board will satisfy the requirements of article 5.4. Thus I consider that Johnson and O'Connell, to which Lord Brown refers were rightly decided.

34.  What then of the dwindling number of long term prisoners, such as Mr Clift and the respondent? I consider that they also have a right to release provided that the relevant criteria are satisfied and that article 5.4 applies to that right. This conclusion and that expressed in relation to Johnson and O'Connell assume, of course, that these criteria are justiciable.

35.  Thus far I have not discussed the question of whether the criteria that govern the decision of whether a prisoner should be released on licence are justiciable. It would be surprising were they not, for the decision would then necessarily be arbitrary and Strasbourg would not countenance that. In general there are no statutory criteria to which the Parole Board is required to have regard, albeit that section 247(3) of the Criminal Justice Act 2003 provides that the Parole Board must not direct the release of a prisoner serving an extended sentence unless “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined". This reflects the fact that, as Lord Bingham observed in Clift, it is now recognised that the task of the Parole Board is to asses risk by the application of publicly promulgated criteria and that the task has no political content. Those criteria include the following extract from Directions issued in May 2004 to the Parole Board by the Secretary of State pursuant to section 32(6) of the Criminal Justice Act 1991:

“In deciding whether or not to recommend release on license, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release.

2. Before recommending release on parole licence, the Parole Board shall consider:

(a) whether the safety of the public would be placed unacceptably at risk….”

36.  Accordingly I conclude that there are justiciable criteria that govern whether a prisoner should be granted release on licence once he is eligible to be considered for this. I would hold that that dwindling category of prisoners of which the respondent is one is entitled under section 35(1) of the 1991 Act to release on licence after serving one half of the sentence provided that the criteria are satisfied. It may be that article 5 does not require our domestic law to provide that the initial decision whether or not to release a prisoner on licence must be made by a court. Arguably it could provide for the Secretary of State to make the decision provided that this remained open to review by a court that satisfied the requirements of article 5.4. The Parole Board is the tribunal that is best placed to satisfy those requirements. Inasmuch as section 35(1) of the 1991 Act requires the Parole Board to make its decision first and then permits the Secretary of State to take a different decision it places the cart before the horse. This is contrary to the requirements of article 5.4. For this reason I would reject this appeal and endorse the declaration of incompatibility that has been made by the Court of Appeal.

LORD RODGER OF EARLSFERRY

My Lords,

37.  I have had the advantage of considering a draft of the speech to be delivered by my noble and learned friend, Lord Brown of Eaton-under-Heywood. I agree not only with his conclusion but with his reasoning. Since he deals fully with both the English and Strasbourg cases, it would be pointless for me to go over the same ground. But, as your Lordships are not unanimous, I shall explain shortly how I see the position in the light of those cases.

38.  Mr Black is serving five concurrent sentences of 20 years imprisonment and a concurrent sentence of two years, imposed on 26 July 1995. He is also serving a consecutive sentence of four years imprisonment imposed on 8 January 1996, making a total of 24 years. The sentences were imposed by independent judges after due consideration. The appellant’s appeal against the four-year sentence was dismissed.

39.  When these determinate sentences were passed, section 2 of the Criminal Justice Act 1991 (“the 1991 Act”) applied. Subsection (2) provides that the custodial sentence is to be for such term as, in the opinion of the court, is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it. The House must accordingly proceed on the basis that the custodial sentences imposed on the appellant were commensurate with the seriousness of the offences which he had committed.

40.  Those sentences, imposed by way of punishment, constitute prima facie lawful authority for Mr Black’s detention for a total period of 24 years. Providing there is nothing under the domestic law to make his continued detention in terms of the sentences unlawful, his detention is permitted by article 5(1)(a) of the European Convention.

41.  Two provisions of the 1991 Act are relevant. First, by section 35(1), once a long-term prisoner such as Mr Black has served half his sentence, “the Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence.” Secondly, in terms of section 33(2), as soon as he has served two-thirds of his sentence, it is the duty of the Secretary of State to release him on licence.

42.  Under the 1991 Act, the executive, in the shape of the Secretary of State, had, and has, nothing to do with fixing the length of the sentences which Mr Black is serving. That was all done by the courts. Their sentences authorise his detention until he has served two-thirds of the total period - at which point section 33(2) requires the Secretary of State to release him on licence. In the meantime section 35(1) gives the Secretary of State power to administer the courts’ determinate sentences by authorising Mr Black’s release on licence if the Parole Board recommends it and the Secretary of State thinks fit. That power must, of course, be exercised lawfully.

43.  It is common ground that, having served half his sentence, Mr Black became eligible for consideration for release on licence on 30 June 2006. So, when, on 2 May, the Parole Board recommended that he should be released at that stage, the Secretary of State had to consider that recommendation. On 29 August the Secretary of State rejected it and refused to release him.