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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Foster v The Secretary of State for Justice [2015] EWCA Civ 281 (26 March 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/281.html Cite as: [2015] EWCA Civ 281 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lady Justice Rafferty & Mr Justice Kenneth Parker
CO/12094/2012
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE JACKSON
and
LADY JUSTICE BLACK D.B.E.
____________________
ASHLEY FOSTER |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR JUSTICE |
Respondent |
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DTI Global A DTI Global Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nathalie Lieven Q.C. (instructed by Treasury Solicitor) for the Respondent
Hearing date : 23 February 2015
Judgment
____________________
Crown Copyright ©
Sir Brian Leveson P :
The Statutory Regime
"(1) Subject to sub-sections (2) to (4), the Secretary of State may –
a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period . . . .
(2) Sub-section (1)(a) does not apply in relation to a prisoner unless –
a) the length of the requisite custodial period is at least six weeks, and
b) he has served –
i) at least four weeks of that period, and
ii) at least one-half of that period."
"(1) . . . a curfew condition is a condition which –
a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified . . . and
b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
(2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
(3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244. "
(1) If it appears to the Secretary of State, as regards a person released on licence under section 246—
(a) that he has failed to comply with any condition included in his licence, or
(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence,
the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section.
(2) A person whose licence under section 246 is revoked under this section—
(a) may make representations in writing with respect to the revocation, and
(b) on his return to prison, must be informed of the reasons for the revocation and of his right to make representations.
(3) The Secretary of State, after considering any representations under subsection (2)(b) [sic] or any other matters, may cancel a revocation under this section.
LASPO 2012 amended s. 255(3) to make it clear that representations are made under s. 255(2)(a) and not s. 255(2)(b); there have since been further amendments as a consequence of the Offender Rehabilitation Act 2014.
"Your compliance with the conditions of the [HDC] will be monitored by SERCO as the supplying company. You must provide the supplier with access to the curfew address to install and check the monitoring equipment and electronic tag. Such visits will be made during the curfew hours but not between midnight and 6.00 a.m. However, the supplier may visit the curfew address between midnight and 6.00 a.m. in order to investigate a reported violation."
"[Prisoners who have been recalled under s. 255(1)(a)] are statutorily eligible to be considered for HDC but have demonstrated, by their behaviour on licence, doubts about their ability to comply with licence conditions. The Home Secretary has therefore decided that in order to maintain public confidence such prisoners must be presumed unsuitable for HDC unless there are exceptional circumstances." [Emphasis in the original]
I assume that this policy was adopted by the Secretary of State.
The Facts
"A PID tamper alert was first recorded at 5.20 pm on 23 August 2012, and the position remained the same by 7.15 pm (the beginning of the next curfew period). Serco telephoned the Claimant for an explanation. He said that he was at the curfew address and that the tag was around his ankle. Serco decided to visit the Claimant to check that the equipment was in working order. The Serco officer arrived at the curfew address at 43 minutes after midnight on 24 August 2012. This was within the curfew period and to be expected, given that investigation of a suspected tampering with the tag was exceptionally provided for between midnight and 6 am. The Serco officer explained to the Claimant the reason for the late visit and also the consequences if the Claimant did not allow the officer to check the equipment. The Claimant indicated that the officer should return the next morning. The officer rejected that indication, drawing attention in particular to the fact that investigation visits were made only during curfew hours (that was in the circumstances before 7.15am on 24 August 2012). As a result the officer was not able to check the Claimant's tag, and reported this event to the appropriate personnel in Serco. The investigating officer had given a written account of what he said had happened at the investigation visit."
The result was that, pursuant to the provisions of s. 255 of the 2003 Act, on 24 August, the Secretary of State revoked the appellant's licence on the grounds of breach of condition and recalled him to custody.
"12. Again, on 23 August 2012 I did not tamper with my tag at all. I went to bed and was sleeping on a sofa bed in my sister, Tsehai's room. I was woken by my sister, Tsehai, who shook me to wake me and informed me that the 'tag' man was there. I also heard Angel shout at me that the 'tag' man was there.
13. I went downstairs to speak to the Serco employee, who was waiting at the bottom of the stairs. I sat down on the stairs and told the Serco employee that I was tired, had just been woken and it is very late. The Serco employee agreed to return the following morning to check the equipment. He did not attempt to explain the consequences of not checking the equipment there and then. Our conversation was limited to him agreeing to return. I was not aggressive or confrontational.
14. On reflection and in light of his subsequent action in breaching me, I think that he simply did not care. I think he agreed and walked away knowing he was going to recall me but wanting to make his job easier and not bothering to explain the consequences or engage with me."
His account was broadly supported by two members of his family who also submitted statements.
The Divisional Court
This Appeal
"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."
"i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.
ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:
a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.
b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.
c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.
d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.
iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.
iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.
v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.
vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.
vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.
viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.
ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.
x) "Paper" decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.
xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.
xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness.
xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty."
"I have some difficulty with the notion, implied by Lord Brown in para 74 of Black, that a court in this country should hold that the reach of article 5(4) is, as it were, longer than the Strasbourg court has held. Assuming (as may well be right, and will no doubt have to be considered in a future case) that a United Kingdom court could, in principle, decide that article 5(4) applied in Mr Whiston's case in the face of clear Strasbourg jurisprudence that it would not, I am quite unconvinced that it would be appropriate to do so. Unless and until I am persuaded otherwise on the facts of a particular case, it seems to me that the common law should be perfectly well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention. The decision in West demonstrates that the common law affords protection in such circumstances, and Lord Brown's actual conclusion in Black underlines the very limited nature of any exception which he had in mind in his obiter observations." (Emphasis added)
"Release on home detention curfew is much more closely integrated with the original sentence than is release as of right once the custodial period has been completed. The curfew is a compulsory feature of the scheme and if it cannot be enforced, the licence must be withdrawn and the prisoner recalled, irrespective of the fact that the prisoner has honoured the conditions of the licence."
Release is "laden with a wide area of discretionary judgment": per Kenneth Parker J (at [29]).
Conclusion
Lord Justice Jackson :
Lady Justice Black :