Judgments - R (On The Application of Black) (Respondent) v Secretary of State for Justice (Appellate)

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44.  Mr Black brought the present proceedings for judicial review of the Secretary of State’s decision, inter alia, on the ground that it was incompatible with his article 5(4) Convention rights. Kenneth Parker QC, sitting as a deputy High Court judge, dismissed the application. The Court of Appeal allowed Mr Black’s appeal [2008] 3 WLR 845 in part, and granted a declaration that section 35 of the 1991 Act is incompatible with article 5(4), as it leaves the decision on release of determinate prisoners, who are serving 15 years imprisonment or more, to the Secretary of State.

45.  The House must therefore proceed on the basis that the Secretary of State’s decision not to order Mr Black’s release was within his powers under section 35. The only question is whether the section itself is incompatible with article 5(4). The section cannot, of course, be incompatible with article 5(4) unless the article applies to the situation which the section covers. So the question comes to be whether article 5(4) gives a long-term prisoner, with a determinate sentence of more than 15 years, the right to take legal proceedings, at the half-way stage of his sentence, to determine the lawfulness of his continued detention.

46.  According to the constant jurisprudence of the European Court conveniently summarised by Lord Hope of Craighead in R (Giles) v Parole Board [2004] 1 AC 1, 30, para 40, the answer to that question is No. In 1995 and 1996, judges determined that it would be appropriate, and therefore lawful by virtue of section 2 of the 1991 Act, for Mr Black to be sentenced to be detained for a total of 24 years. In these circumstances, failing any fresh development which might make his detention unlawful, Mr Black’s article 5(4) Convention right to have the lawfulness of his detention after conviction decided by a court was satisfied by the original sentencing procedures.

47.  Is the mere fact that he has reached the half-way stage in his sentences a fresh development which might make his detention unlawful? Plainly not: his detention would not be unlawful after the half-way point and before the two-thirds point, unless the Secretary of State had ordered his release under section 35 and he remained in custody. In fact, however, the Secretary of State has decided that he should not be released. So he remains detained in terms of the original lawful sentences and has no right to be set free. Other things being equal, he will not have a right to be set free until he has served two-thirds of his sentence and section 33(2) applies to him. At that point, if he were not released on licence, he would indeed have an article 5(4) Convention right to bring proceedings to have the lawfulness of his detention determined. In English law he would bring habeas corpus proceedings to secure his release.

48.  But that lies in the future. All that Mr Black had in 2006 was a domestic law right to take proceedings to ensure that the Secretary of State exercised his powers under section 35(1) lawfully. He duly exercised that right by raising these proceedings. The court found that the Secretary of State had acted lawfully; there is no appeal against that decision. But, even supposing the court had decided that the Secretary of State had exercised his power under section 35(1) unlawfully, Mr Black would still not have had a right to be released. His continued detention in terms of the sentences would have remained lawful - but the Secretary of State would have had to reconsider whether to release him on licence, in accordance with the Parole Board’s recommendation.

49.  Since the lawfulness of Mr Black’s detention was determined by the original sentencing courts, article 5(4) had no application at the half-way stage when the Secretary of State was considering whether to release him. There is accordingly no basis for declaring that section 35(1) of the 1991 Act is incompatible with article 5(4). The Secretary of State’s appeal must be allowed.

50.  The Secretary of State for Justice wins. But, like Lord Brown, I find it hard to understand why he should wish to cling tenaciously to this last vestige of his power to determine when prisoners should be released, since she accepts that there can be no legitimate political input into the decision. The obvious thing would be for the Parole Board to decide when this small group of prisoners, which includes Mr Black, should be released - in the same way as it decides when other long-term prisoners are to be released.


My Lords,

51.  For the reasons given by my noble and learned friends, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood, with which I entirely agree, I too would allow this appeal.


My Lords,

52.  My noble and learned friend Lord Brown of Eaton-under-Heywood has set out in his opinion the facts and issues in this appeal and the statutory provisions and articles of the European Convention which require consideration. I gratefully adopt these and do not propose to repeat them.

53.  The powers of the Secretary of State to determine when prisoners are to be released have been steadily narrowed over the last few years. The progressive series of decisions which brought this about in respect of indeterminate sentences has been discussed by Lord Brown in para 66 of his opinion, to which I would refer. The principle which has driven this series is that in order to satisfy the requirements of article 5 of the Convention decisions on the release of prisoners in such cases should be taken by a judicial rather than an administrative body. The issue in the appeal before the House is whether the same principle governs a decision on the release of a prisoner sentenced to a determinate term after he has completed half of the term of the sentence.

54.  The application of article 5 was summarised by Lord Hope of Craighead in R (Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC 1, 24-25 at paras 25-26:

“25. The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under article 5(1)(a), without the need for further reviews of detention under article 5(4) … Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation …

26. Article 5(4), on the other hand, is concerned with the need for the detention to be reviewed in order that it may be determined whether it is lawful in terms of domestic law and in terms of the Convention. Its purpose is to ensure that a system is in place for the lawfulness of the detention to be decided speedily by a court and for release of the detainee to be ordered if it is not lawful …”

55.  The Court of Appeal were influenced by the clear trend in the ECtHR cases, followed in the domestic judgments of the United Kingdom courts, to require all decisions depriving a person of his liberty to be taken by a court and not by an administrative body. Mr Owen QC for the respondent placed some emphasis on the remarks of Lord Bingham of Cornhill and Lord Brown in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 that the Secretary of State’s power to reject the recommendation of the Parole Board on the release of a prisoner on licence at the half way stage of his term is an indefensible anomaly. As Lord Bingham pointed out at para 33:

“assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, [is] 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.”

56.  Mr Pannick QC argued on behalf of the Secretary of State, however, that this anomaly is not material, because of the well-established Strasbourg principle that in the case of a determinate sentence fixed by a court at the close of judicial proceedings, the requirements of article 5(1) are satisfied and the supervision required by article 5(4) is incorporated in the decision itself: see the discussion by Lord Hope of Craighead in Giles at para 40. Lord Hope went on to say in that paragraph:

“ … where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. This is because there is a risk that the link between continued detention and the original justification for it will be lost as conditions change with the passage of time. If this happens there is a risk that decisions which are taken by the executive will be arbitrary. That risk is absent where the length of the period of detention is fixed as part of its original decision by the court.”

The issue in the present appeal is therefore whether a decision on the release of a long-term prisoner serving a determinate sentence is incorporated in the original sentencing decision or whether the link with that original sentencing decision has been broken, with the consequence that the question of his release must be considered by a judicial body.

57.  None of the decisions of the European Court of Human Rights relates to the situation with which the present appeal is concerned and one has to reason by analogy from a series of judgments on different sets of facts. It is clear that those in Van Droogenbroeck v Belgium (1982) 4 EHRR 443 and E v Norway (1990) 17 EHRR 30 - both discussed by Lord Brown at paras 68-69 -- lie on one side of the line. In each case the executive authority possessed a discretion over the time when the prisoner would be released, which was not fixed at the outset by any judicial decision. On the other side are Ganusauskas v Lithuania (Application No 47922/99) (unreported) 7 September 1999 and Brown v United Kingdom (Application No 968/04) (unreported) 26 October 2004,. Each of these cases concerned the recall of a prison released on licence for breach of the conditions of his licence. The ECtHR held each application inadmissible, on the ground that the lawfulness of the detention was incorporated at the outset in the applicant’s original trial and the appeal procedures against the conviction and sentence. In Brown the court said:

“The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re-offending. The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within the scope of article 5(1)(a) of the Convention.”

58.  I have referred to the anomaly constituted by the retention by the Secretary of State of the power to reject a recommendation for release made by the Parole Board. There appears to be no good reason for its retention and it may well be that the Secretary of State will now think it right to relinquish it. There is also strength in the argument that it is a fresh issue in the penal process, which is sufficient to break the link with the original sentence of imprisonment pronounced by the court. It does appear, however, from my consideration of the Strasbourg jurisprudence that the current of authority is against the respondent and in favour of the Secretary of State on this question. I do have some reservations, appreciating as I do the force of the considerations which prevailed with the Court of Appeal. On balance, however, I think that our courts should be slow to go beyond what the ECtHR has held and decide that the final decision on release cannot lawfully be left with the Secretary of State. For these reasons I would agree, though not without hesitation, that the appeal should be allowed and the respondent’s application for judicial review should be dismissed.


My Lords,

59.    Are determinate sentence prisoners, once their parole eligibility

date arrives, entitled by virtue of article 5(4) of the European Convention on Human Rights to a speedy judicial decision upon the lawfulness of any further period of detention? A trilogy of recent decisions of the Divisional Court and the Court of Appeal holds that they are:

(1)  The Court of Appeal in R (Johnson) v Secretary of State for the Home Department [2007] 1 WLR 1990, decided that an eight and a half months delay by the Parole Board in its consideration of Mr Johnson’s case after he became eligible for parole at the halfway point of his seven year sentence breached article 5(4)’s requirement that the lawfulness of his continuing detention be determined “speedily", so that, provided only he could demonstrate that an earlier consideration of his case would have resulted in his earlier release, he was entitled to compensation under article 5(5).

(2)  The Divisional Court in R (O'Connell) v Parole Board [2008] 1 WLR 979 held that article 5(4) applies whenever a question arises under the early release provisions relating to determinate sentences, the questions arising there being whether the Parole Board was an independent body and whether its procedures with regard to oral hearings satisfied the requirements of the article.

(3)  The Court of Appeal in the present case ([2008] EWCA 359; [2008] 3 WLR 845) declared section 35(1) of the Criminal Justice Act 1991 (“the 1991 Act”)—providing as it does for the Secretary of State to have the final say as to the release on licence of prisoners serving determinate sentences of 15 years or longer—to be incompatible with article 5(4)’s requirement that such decisions be taken by “a court".

60.    The Secretary of State submits that all these cases were wrongly

decided. It is his central contention that in all determinate sentence cases the requirements of article 5(4) are satisfied once and for all when the original sentence is imposed following conviction and that there can be no right to any further article 5(4) determination unless and until there arise “new issues affecting the lawfulness of the detention” (Weeks v United Kingdom (1987) 10 EHRR 293, 314, para 56; Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, 691, para 68). The respondent submits in reply that where the legislation governing release on licence makes a prisoner eligible for parole at a particular point in his nominal determinate sentence, it becomes unlawful to detain him further unless an independent body, satisfying the requirements of “a court", decides that there remains an unacceptable risk of his re-offending so as to justify his continued detention.

61.    In the case of all indeterminate sentence prisoners (lifers for

short) it is now well established that, once the tariff period of the sentence has been served, the prisoner is entitled to the judgment of a court (for this purpose the Parole Board) as to his suitability for parole, and to immediate release if the Board so decides. There is, submits the respondent, no material distinction between the position of lifers at the end of their tariff period and that of determinate sentence prisoners who have reached their parole eligibility dates. That critically is the issue for your Lordships’ determination upon this appeal.

Article 5

62.    Article 5 provides so far as material:

“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court.

. . .

  (4) Everyone who is deprived of his liberty by arrest or   detention shall be entitled to take proceedings by which the   lawfulness of his detention shall be decided speedily by a court   and his release ordered if the detention is not lawful.

  (5) Everyone who has been the victim of arrest or detention in   contravention of the provisions of this article shall have an   enforceable right to compensation.”

The facts

63.    The respondent has a long history of offending, both in this

country and in Denmark, Switzerland and Portugal. On 26 July 1995 he was sentenced at the Old Bailey to 20 years imprisonment for offences of false imprisonment, kidnapping, conspiracy to kidnap and robbery (with two years imprisonment concurrent for possessing a firearm with intent to commit an indictable offence). A few months later, on 8 January 1996, he was sentenced to a consecutive term of four years imprisonment for the offences of escaping from custody and assault with intent committed whilst he was being conveyed from the Old Bailey to HMP Belmarsh. Effectively, therefore, he is serving a determinate sentence of 24 years.

64.  Having regard to the time spent in custody before trial, the respondent’s parole eligibility date (the halfway point of his sentence) was 30 June 2006. Shortly before that, on 2 May 2006, the Parole Board recommended his release on licence. On 29 August 2006, however, the Secretary of State rejected that recommendation and refused to release him. The respondent accordingly remains in custody and, subject to these proceedings or some favourable future decision on release, will do so until he has served two thirds of his sentence, 30 June 2010 (four years after he became eligible for parole).

The legislation

65.  The legislation governing release on licence has changed several times down the years. Nowadays the great majority of determinate sentence prisoners are released on licence automatically at the halfway point of their sentences, the Parole Board having ceased to play any part in the process. Mostly the Board are concerned only with lifers and those serving extended sentences. There remain, however, a dwindling number of long-term prisoners, including the respondent, whose release on licence continues to be governed by section 35(1) of the 1991 Act:

“After a long-term prisoner [a prisoner serving a determinate term of four years or more] has served one-half of his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence.”

I say a dwindling number because subsequent legislation has very substantially reduced the number of those whose release is still subject to the Secretary of State’s discretion. In the first place, pursuant to section 50 of the 1991 Act and the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218), for the word “may” in section 35(1) of the 1991 Act was substituted the word “shall” with regard to all long-term prisoners save those serving terms of 15 years or more. In other words, with regard to those serving between 4 and 15 year terms the Board was given the final say. Secondly, pursuant to Chapter 6 of the Criminal Justice Act 2003, even those serving 15 years or more became entitled to automatic release at the halfway point unless (as in the respondent’s case) their offences pre-dated 4 April 2005. Thirdly, by virtue of the Criminal Justice and Immigration Act 2008, even those whose offences pre-dated 4 April 2005 became entitled to release at the halfway point unless their parole eligibility date fell before 9 June 2008 (as in the respondent’s case) or their sentence was for certain specified sexual or violent offences (as additionally was so in the respondent’s case). There are, we were told, some 440 prisoners serving determinate sentences of 15 years or more whose release still depends upon the Secretary of State agreeing to act on a favourable recommendation from the Parole Board—some 350 excluded from automatic release because their parole eligibility date preceded 9 June 2008 (when the 2008 Act came into force) and who therefore had already been the subject of adverse decisions either by the Parole Board or by the Secretary of State; some 90 excluded because of the sexual or violent nature of their offending.

The Strasbourg case-law

66.  All indeterminate sentences include a tariff period fixed to represent the length of time for which the prisoner is to be detained as punishment for his offending and (save in those very few cases which justify a whole-life penal tariff) a post-tariff period during which continued detention depends upon whether the prisoner can safely be released. The Strasbourg Court decided—in relation first to discretionary life prisoners (Thynne, Wilson and Gunnell 13 EHRR 666), then to those detained during Her Majesty’s pleasure (Hussain v United Kingdom (1996) 22 EHRR 1), and finally to mandatory life prisoners (Stafford v United Kingdom (2002) 35 EHRR 1121)—that both stages of these life sentences had to be decided judicially rather than by the executive. The fixing of the tariff is part of the sentencing exercise and so engages article 6 of the Convention, requiring determination by “an independent and impartial tribunal established by law” (that critically was the issue arising in R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837). Similarly the decision on release in the post-tariff period is also one to be taken by “a court” for the purposes of article 5(4). As the court said in Stafford (para 87):

“After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence of murder (sic). These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of article 5(4). It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of article 5(1) of the Convention.”

67.  Throughout its case law, however, the Strasbourg Court has consistently appeared to treat determinate sentences quite differently, time and again contrasting them with the indeterminate cases. This is illustrated by the earlier part of para 87 of the court’s judgment in Stafford (just cited):

“The Secretary of State’s role in fixing the tariff is a sentencing exercise, not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment.”

As had long ago been said in De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, 407, para 76:

“[W]hen the decision [depriving a person of his liberty] is made by a court at the close of judicial proceedings . . . the supervision required by article 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after ‘conviction by a competent court’ (article 5(1)(a) of the Convention).”

Thus it was that in Mansell v United Kingdom (Application No 32072/96) (unreported) 2 July 1997, the European Commission of Human Rights rejected as inadmissible a complaint by a prisoner, whose long-term determinate sentence had been imposed under section 2(2)(b) of the 1991 Act (providing for longer than commensurate custodial sentences to protect the public), that he was entitled to an oral hearing by the Parole Board of his application for release on licence. The Commission held that:

“the judicial control required by article 5(4) of the Convention was incorporated in the original conviction and sentence, and that article 5(4) of the Convention does not apply to the parole proceedings in which the applicant was denied an oral hearing.”

Similarly in Ganusauskas v Lithuania (Application No 47922/99) (unreported) 7 September 1999, the European Court of Human Rights rejected as inadmissible a complaint by a determinate sentence prisoner about an Appeal Court’s suspension of a grant of conditional release, the Court again saying that the necessary supervision of the lawfulness of detention was incorporated in the original conviction and sentence.

68.  All these decisions (and the Court’s later admissibility decision in Brown v United Kingdom (Application No 968/04) (unreported) 26 October 2004 to which I shall have to return) are strongly relied upon by Mr Pannick QC for the appellant Secretary of State. Mr Owen QC for the respondent, however, submits that no such invariable principle is to be found in the Strasbourg case law and he prays in aid in particular the Court’s decisions in Van Droogenbroeck v Belgium (1982) 4 EHRR 443 and E v Norway (1990) 17 EHRR 30. Mr Van Droogenbroeck was a recidivist, sentenced to two years imprisonment for theft and subjected to a further order that he be “placed at the government’s disposal” for 10 years pursuant to a “Social Protection” Act. The Court found a violation of article 5(4), stating at para 47 of its judgment (p 460):

“In practice, the court’s decision provides the Minister of Justice ‘with initial authority for detention for a period . . .whose actual duration’—'from nothing to 10 years’—is striking for its relatively indeterminate character and will vary, in principle, according to the treatment required by the offender and the demands for the protection of society. . . . This system is fundamentally different from that—on which the court does not have to express an opinion on this occasion—of the conditional release of prisoners sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case.”

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