Case No: CO/3307/2002
Neutral Citation Number 2003 EWHC 152 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINSTRATIVE COURT

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 11 February 2003
B e f o r e:

THE HONOURABLE MR. JUSTICE ELIAS

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	THE QUEEN 

on the application of 

WILLIAM SIM		Claimant	
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1. PAROLE BOARD
2. THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendants	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr. Edward Fitzgerald Q.C. & Mr. Kris Gledhill (instructed by Bhatt Murphy for the Claimant)
Miss Karen Steyn (instructed by the Treasury Solicitor for the Parole Board)
Mr. Nigel Giffin (instructed by The Treasury Solicitor) 
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Judgment
As Approved by the Court
Crown Copyright ©

Mr. Justice Elias: 

1.	The claimant was sentenced at Snaresbrook Crown Court on 17 February 2000 to what is termed an “extended sentence” of seven and a half years imprisonment.   This comprised a custodial term of 30 months and an extension period of 5 years pursuant to Section 58 of the Crime and Disorder Act 1998 (now Section 85 of the Powers of Criminal Courts (Sentences) Act 2000).   The claimant had been found guilty of two offences of indecent assault and one of indecency with a child under 14.   The victim was the 7-year-old daughter of a friend.   It was the claimant’s first conviction for a sexual offence, and he has at all times continued to protest his innocence.  He has in the past committed offences of violence.  The judge when sentencing him did not expressly state the reasons for imposing the extended sentence, although he did refer to the claimant’s  “bad record” which included offences of violence.

2.	The claimant was released from prison on 11 January 2001.  This was the half way point in the custodial term of his sentence, after taking account of time spent in custody prior to trial.   The terms of the licence required him to comply with the conditions imposed therein.   They included the duty to be of good behaviour and not jeopardise the objectives of supervision (namely to protect the public, prevent re-offending and to secure reintegration into the community); to reside at the Basildon Bail Hostel and not to live elsewhere without the prior approval of the supervising officer; not to return to the hostel premises under the influence of alcohol; and generally to act in accordance with any reasonable instructions of his supervising officer.   The licence was due to expire on 27 June 2006.   On 20 July 2001 the claimant was recalled by the Home Secretary and returned to prison.   On 1 August 2001 the Parole Board made a recommendation confirming that recall.   The claimant exercised his right to make representations with respect to his recall and that resulted in a reference of his case to the Parole Board.   Following an adjournment at the request of the claimant, that hearing eventually took place on 15 April 2002.   The Board gave its decision on 17 April 2002 and that was to refuse to direct the claimant’s release.

3.	The claimant now seeks judicial review to quash that decision.   He also seeks other related relief as I indicate below.

	The background to his recall

4.	On 17 July 2001 the claimant’s supervising officer requested that he be recalled.   Three factors were identified as the grounds for justifying this step.   First, that the claimant did not return to the Bail Hostel on 14 July 2001 but only returned the next morning.   Second, that on the 13 July 2001 the claimant had been arrested by the police with regard to an alleged indecent exposure to teenage girls; and third, that he had already received written warnings on 14 February and 26 June 2001 with regard to the fact that he had returned to the Hostel under the influence of alcohol.   The supervising officer submitted that these factors demonstrated a breach of the conditions of his licence, and in particular the obligations “to be of good behaviour, not to commit any offence and not take any action which would jeopardise the objectives of your supervision”.

5.	On 19 July 2001 the Assistant Chief Probation Officer asked that the recall be carried out speedily.   It appears that the police had indicated that he was at risk from other hostel residents and also that he was a “high risk sex offender and police have some intelligence about his activities but not enough to prosecute him.”   He was recalled on 20 July and the reasons given were essentially those relied upon by his supervising officer when making the request.

	The hearing before the Parole Board

6.	The Board had a dossier of material before it, including materials relating to his conduct in prison, his lack of offending behaviour, the allegations of returning to the hostel after consuming alcohol and allegations of aggressive behaviour at the hostel.   By the date of the hearing it had become clear that the claimant was no longer suspected of the indecent exposure which had been an important factor triggering his recall; and furthermore the Parole Board accepted in its conclusions that it did not hold it against him that he failed to return to the hostel on the night of 14 July.   He had given an explanation, which the Board found acceptable.   It was recognised that the absence from the hostel may well have been caused as a result of the allegation of indecent exposure, which had understandably distressed him.  Nonetheless the Board was satisfied that it was necessary in the interests of the public that he should continue to be confined.  They summarised their conclusions as follows: 

“There was not any evidence of any positive change of attitude towards your offences, there was a considerable body of evidence which the panel accepted that in an escalating pattern of seriousness, during your time at the hostel, you frequently returned to the hostel under the influence of alcohol in breach of condition (ix) of your licence, were aggressive towards other inmates and members of staff, showed no respect for the rules of the hostel and eventually were dismissed from your employment because of drunkenness.   In short, the panel was quite satisfied you took many actions which would have jeopardised the objectives of your supervision – namely to protect the public and serve your successful reintegration into the community.

Further having heard the evidence from you about your state of mind at the time, the panel was reinforced in its view that at the time you could not be managed on licence and you have failed to appreciate the need for any offending behaviour work since, hence the panel was satisfied you continue to pose that risk.

The panel considered that against a background where you have failed to undertake work to address your offending, have repeatedly breached your licence conditions and, in particular, have shown no insight into your drinking habits and the effect that these have on your behaviour, the risk of your re-offending, were you immediately released, is high.   The panel is accordingly of the unanimous view that your immediate release would present an unacceptable risk to the public of further offences being committed and your representations against recall are rejected.”

The relevant legislation.

7.	In cases where a defendant is sentenced for a violent or sexual offence, the courts have power to impose sentences which are  more onerous than would be passed if the court were simply focussing upon the sentence which is commensurate with the seriousness of the offence. They can impose sentences which reflect not only the seriousness of the offence but also the risk of future offending. In very serious offences discretionary life imprisonment can be imposed.   In other circumstances section 80 of the Powers of Criminal Courts (Sentencing) Act 2000 (“PCCA”) empowers the court to pass a longer than usual custodial sentence in certain circumstances which are defined in subsection 2 as follows: 

“……the custodial term shall be-
(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or

(b)where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.”
 
8.	An alternative option, as in this case, is for the court to pass what is termed an “extended sentence”.  The circumstances where this can be done, and the effect of such a sentence, are set out in section 85 of the PCCA (formerly section 58(1) of the Crime and Disorder Act 1998).  The relevant provisions are as follows: 

“(1) This section applies where the court-

(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30 September 1998; and
(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.

(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of-

(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence other wise than under this section (“the custodial term”); and
(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above
		
(3) Where the offence is a violent offence, the court shall not pass an extended sentence the custodial term of which is less than four years.

(4) The extension period shall not exceed-

	(a) ten years in the case of a sexual offence; and
(b) five years in the case of a violent offence.

(5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence.”

	Sexual and violent offences are defined in section 161 of the Act.

9.	Although both these sections are directed towards the commission of violent and sexual offences, it will be plain that there are significant differences between them. First, the longer than usual commensurate sentence requires that the prisoner should serve the whole of the stipulated sentence in custody (subject to the provisions which involve him being released on licence in the usual way).   By contrast, the extended sentence envisages that the prisoner should be released on a date which is fixed by reference not to the whole of the sentence stipulated, but only the custodial term element as defined in subsection (2)(a). The effect of the sentence is to increase the time during which the prisoner will remain on licence once released.

10.	Second, the longer than commensurate sentence can be imposed only where it is necessary to protect the public from serious harm.  By contrast, the extended sentence can be imposed where the licence period which would otherwise apply would not be adequate for the purpose of preventing the commission of further offences and securing the criminal’s rehabilitation.  The effect of that provision was considered by the Criminal Division of the Court of Appeal in R v Nelson [2002] 1 Cr.App.R.(S.)134.  Rose LJ observed (para 14) that there may be circumstances where the longer than commensurate sentence will not be necessary precisely because of the power to pass an extended sentence.   In other words, even although there is a risk that the offender will commit serious harm, it may be possible to manage the risk of protecting the public from serious harm satisfactorily by requiring the offender to undergo a period of extended licence rather than by imposing a longer than commensurate sentence.  The other situation where the extended sentence is appropriate is where the offender does not pose a risk of serious harm to the public at all but where there is nonetheless a strong likelihood of re-offending.  Rose LJ described this situation as follows: 

“We turn to consider extended sentences with commensurate custodial terms.  One purpose of an extended sentence is to reduce the likelihood of reoffending, and it is therefore particularly suitable where a commensurate custodial term is too short for this to be done in prison and where the normal licence period, if any, will not be long enough to permit attendance at a treatment programme in the community.   This will arise particularly in relation to less serious sexual offences, where the likelihood of reoffending appears high, but where a longer than commensurate sentence cannot be justified because the offender does not present a risk of serious harm to the public.   Creasey (1994) 15 Cr.App.R. (S.) 671 provides an example, although the option of an extended sentence was not, at that time, available to the Court.   The appellant there had a record of convictions for relatively minor indecent assaults, and he pleaded guilty to other comparatively minor offences.   The trial judge imposed a longer than commensurate sentence of five years.   The Court of Appeal substituted a sentence of 21 months as being commensurate because, although the offences were unpleasant and distressing, they did not require protection of the public from serious harm.   The trial judge had fallen into the trap of assessing the seriousness of the risk of reoffending rather than the seriousness of the anticipated harm.   In our judgment, such a case might now be regarded as one where an extended sentence could and should be imposed with a commensurate custodial sentence.”

11.	Where the court imposes an extended sentence, there is of course the risk that the prisoner will be recalled for failing to comply with the terms of that licence or for some other reason which renders it expedient in the public interest that he should be recalled.   The procedure for recall is set out in section 39 of the Criminal Justice Act 1991.  Broadly, the Secretary of State may revoke the licence and recall the prisoner either with a recommendation from the Parole Board, or without such a recommendation if it appears to him to be expedient in the public interest to recall that person before such a recommendation is practicable.  However, in the latter situation the Secretary of state must in every case refer the case to the Parole Board, and in the former he must do so if the prisoner wishes to make representations about his recall.

12.	 Section 44A regulates the position of a prisoner who is serving an extended sentence and is recalled to custody.  It provides that he will be entitled to require the Secretary of State to refer his case to the Parole Board at any time, save that the Secretary of State need not refer it before the end of a period of one year after the last consideration by the Board. The effect, therefore, is annual reviews.  Section 44A((4) sets out the test for determining whether or not the prisoner should be released.  It provides that the Board shall direct the prisoner’s release (and the Secretary of State is obliged to act upon that direction) 

“if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise).”

Accordingly, the Parole Board does not have to be positively satisfied that it is necessary for the protection of the public that he should be confined; rather they need only be satisfied that it is no longer so necessary.  It follows as a matter of language that if they are left uncertain as to whether it is still necessary or not, he will continue to be confined.

The grounds of appeal. 

13.	The appeal raises both points of domestic and European Convention law.  The `	grounds can be summarised as follows: 

(i) It is alleged that the recall and continued detention of the claimant engages Article 5 of the Convention, and that the way in which the legislation is framed means that there can never be compliance with Article 5(1) because the prisoner can be subject to a significant additional period of imprisonment without a separate finding of guilt by a court which satisfies Article 6.  This is the root and branch attack on the very essence of these provisions.   

(ii) It is contended that the Parole Board applied the wrong test when determining whether the claimant should be released or continue to be detained.  It is alleged that the Board simply asked whether there was a risk that further offences would be committed.  Mr.. Fitzgerald Q.C., counsel for the claimant, submitted that this was putting the test far too low.  It failed to identify either the type of risk or the degree of risk. As to the type of risk, it was contended that that there were two limitations on the powers of the Board. First, before concluding that the claimant should be detained in prison, the Board ought to have been satisfied that there was a risk that the prisoner would commit not just any further offences but specifically offences which were of a violent or sexual nature.  Since the extended sentence could be imposed only because of the risk of those offences being committed, it could not be right to recall and detain someone where the risk was of different offences being committed.   Second, Mr. Fitztgerald  contended that there had to be a risk of serious harm to the public in the sense of harm to life or some physical or psychological injury.  He further contended that the degree of risk had to be a high one.

(iii) It is alleged that Section 44A is inconsistent with the requirements of Article 5 of the Convention in that it purports to establish a presumption that a recalled prisoner will be detained unless the Parole Board is satisfied that it is no longer necessary to confine him, whereas in order to comply with Article 5 it ought to require the Board to release him on licence unless satisfied that it is necessary in the public interest to detain him. 

(iv)Finally, it is said that the Board in this case wrongly took into consideration hearsay evidence, and made certain factual findings on the basis of such evidence, when both fairness and compliance with Article 5.4 required that they should have called relevant witnesses to establish material facts in dispute.  This error, it is said, has had a significant practical effect on the decision. Mr. Fitzgerald submitted that had the Parole Board left out of account these disputed factual issues, they could not possibly have been satisfied that there was a risk of committing further offences.  In any event, the decision should be quashed because the court cannot be sure what they would have determined in those circumstances. 

14.	Before considering these arguments, I should make two preliminary observations.  First, grounds (i) and (iii) are premised on Article 5 being applicable to the decision to detain following the recall of someone during the extended licence period.  The other arguments are advanced as a matter of domestic law, although Mr.Fitzgerald submits that they are reinforced by considerations of Convention jurisprudence.  The applicability of Article 5 is disputed by both the Secretary of State and the Parole Board.  Accordingly, that is the first issue that needs to be determined.

15.	The second observation is this.   It is not strictly necessary to resolve some of the issues raised in order to determine the validity of the particular decision to detain in this case. Mr. Fitzgerald realistically accepts, for example, that whether the presumption infringes Convention law or not, in this case the Parole Board made it clear that they took the view that the public interest required the claimant to be detained.  They did not in fact rely upon the presumption to justify his continued detention.  Similarly, the Board in fact concluded that the risk of reoffending in this case was high.  Accordingly, even if they applied the wrong test, it did not affect the outcome in so far as this element of the claim is concerned.  

16.	I have considered whether it would be right for me to decide these issues at all.  I have concluded that I should.   In R (H) v Mental Health Review Tribunal [2002] Q.B.1 the Court of Appeal held it should determine an issue on the burden of proof in the context of individuals detained under the Mental Health Acts.  It was accepted that the burden had not been decisive of the decision to detain which had in fact been the subject of challenge at first instance, and Crane J had refused to consider the issue simply on the basis that it might be relevant in any future determination.  He considered that this would be involving the court in determining hypothetical or academic issues.  However, the Court of Appeal took a different view.   Lord Phillips M.R. noted that the issue was one of some general importance, that the claimant was shortly due to have another application for his release from mental detention considered, and that the Secretary of State was represented and wished for a determination to be made.  Similarly, in this case the claimant’s continuing detention will come up for further consideration in April; the issues are of general importance and will surface again at some later point for determination if not dealt with now; and the Secretary of State and the Parole Board are both represented and would like matters resolved sooner rather than later.  

17.	My attention was drawn to the decision of Moses J in R (Hirst) v Parole Board and The Home Secretary [2002] EWHC1592 (Admin) in which he was unwilling to decide whether the test of release for prisoners given discretionary life sentences was in accordance with Convention principles.  But in that case there had been no determination of any kind; the Parole Board had simply indicated what test it would adopt in determining that issue as and when it arose.  By contrast, here there is a specific ruling which is the subject of challenge coupled, as I have said, with the fact that the Parole Board will have to consider the matter again in a few months.  Accordingly, I do not feel constrained to impose a similar self-denying ordinance.

Does Article 5 apply to the recall and detention procedures?

18.	The Parole Board is a public body which has to comply with the European Convention on Human Rights by virtue of the Human Rights Act.  Article 5.1 of the Convention provides: 

“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 the procedure prescribed by law: 

(a)	the lawful detention of a person after conviction by a competent court.”

Article 5.4 provides: 

“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 determined speedily by a court and his release ordered if the detention is not lawful.” 

19.	The interrelationship of these provisions has been a subject of much Convention jurisprudence.  The starting point is that where a person is given a custodial sentence which is to reflect his wrongdoing, such that the intention is to punish him by a sentence which is commensurate with that wrongdoing, Article 5 is satisfied by the sentence of the court.  There is no need for any further proceeding in order to comply with Article 5.   As the European Court of Human Rights put it in De Wilde, Ooms and Versyp v Belgium (No.1) (1971) 1 EHRR 373, where a decision is taken by a court at the close of judicial proceedings “the supervision required by Article 5.4 is incorporated into the decision”, and no further supervision is thereafter required.

20.	In R (West) v The Parole Board [2002] ECWA 769(Admin) Turner J held that the effect of this principle was that a prisoner who was released on licence following the imposition of a sentence which was imposed as a commensurate sentence in the normal way, was not entitled to any additional safeguards under Article 5 when recalled.   The original sentence provided for administrative recall.  The case was taken to the Court of Appeal but not on this aspect.  Mr.. Fitzgerald submits that the decision is wrong, but that in any event the position of someone on an extended licence is quite different to someone on licence as a consequence of being subject to what might be termed the normal sentence of imprisonment.  (He accepts that his submissions would not apply in respect of that aspect of the licence of someone on an extended sentence which is referable to the custodial term itself.)

21.	What is undoubtedly the case, as decisions of the Court show, is that there are circumstances where Article 5 may be engaged in respect of persons recalled to prison during a licence period even where that detention is a consequence of, or arises out of, an earlier sentence of imprisonment imposed by a court.   The relevant cases include Van Droogenbroeck v Belgium (1982) 4 EHRR 443; Weeks v U.K (1987) 10EHRR 293; E v Norway (1990) 17 EHRR 30; Thynne, Wilson and Gunnell v U.K. (1990) 13 EHRR 666; Hussain v U.K. (1996) 22 EHRR1; and Stafford v U.K (2002) 35 EHRR 32. These cases were considered by the Court of Appeal in R (Giles) v Parole Board [2002] 3 All ER 1123 Civ 951; [2002] WLR. and it is not necessary that I should analyse them in detail here.  The principles to be derived from those decisions can in my view be summarised as follows:

(1)	Nobody should be subject to arbitrary or disproportionate punishment; this requires that the re-detention following an earlier release from custody should be not only in accordance with domestic law but should also, to use the language adopted in the Weeks case (para.42) “result from”, “follow and depend upon” or occur “by virtue of” the conviction.  In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty in issue.”

(2)	Where in the course of serving a sentence a prisoner embarks upon a period of detention (whether following release or not) which is not directly engaged by the original sentence, but raises new issues affecting the lawfulness of the detention, the continuing or fresh detention of the prisoner will have to be subject to continuing supervision as required by Article 5.4.

22.	The difficulty is to determine precisely when the period of detention will raise these new issues affecting its lawfulness. The European Court has held that when a person has completed the tariff or minimum period following a discretionary life sentence (Weeks; Thynne)), or is subject to detention at her Majesty’s pleasure (Hussain); or even a mandatory life sentence (Stafford) these principles are applicable.  They require that any period of detention served once the minimum or tariff period has been served should be designed to achieve the original objectives for which the sentence was imposed, and that there should be periodic reviews in accordance with Article 5.4 to ensure the continuing legality of the detention.

23.	Mr Giffin, counsel for the Secretary of State, fairly conceded that when the extended sentence was introduced, the view of the Department was that human rights considerations required- or at the very least might well require-the regular judicial supervision of any period during the extended licence period during which the prisoner was being detained.  This at any rate was the understanding of the Sentencing Advisory Panel as recorded in a paper which gave advice to the Court of Appeal on the use of extended sentences.   In paragraph 12 of its report it said this: 

“ An offender sentenced to an extended sentence may be recalled to custody at any time during the licence period and the extension period without the intervention of the court, if the terms of the licence are breached.   Once the offender is recalled, the case will be reviewed annually by the Parole Board.   Unless subsequently released again on the direction of     the Parole Board, the offender will then remain in custody until the end of the extension period.   The provision for annual review applies only to offenders serving an extended period of licence, and the Panel understands that it was introduced because of concern about the human rights implications of the threat of recall without frequent review of the need for continued detention.”
	
24.	Moreover, in a paper published jointly by the Prison Service and the Parole Board entitled “The Comprehensive Review of Parole and Life Sentences”, it is specifically stated in respect of extended sentences that: 

“In hearing representations against recall or conducting reviews after the expiry of the custodial term, the Parole Board is required to sit in a judicial capacity in order to satisfy the requirements of the ECHR.”

Accordingly, section 44A in terms confers the right to regular annual reviews by the Parole Board.  

25.	Notwithstanding this, both the Secretary of State and the Parole Board submit that in the case of a prisoner recalled during the extended licence period, Article 5 is satisfied by the original sentence of the court, and thereafter there is no need for any continuing supervision.  Drawing attention to this change of stance is not simply a jury point; in classifying sentences under Convention law, the European Court will have regard to how the matter is treated in domestic law: see for example the extensive jurisprudence on classifying proceedings as criminal or civil under Article 6.   

26.	In justifying their new position, both the Parole Board and the Secretary of State rely heavily upon the decision of the Court of Appeal in the Giles case, to which I have made reference.  That case concerned the imposition of a longer than commensurate sentence under what is now section 80 of the PCCA, the judge imposing a sentence of seven years.   The question was whether the claimant was entitled to regular supervision of his detention for the period after he had served the commensurate sentence and during which he was detained solely for preventive purposes.  I held that he was, essentially on the grounds that he was at that stage being detained in the public interest solely in order to protect the public from serious harm, and since the characteristics of the offender may change, and he might cease to be a danger in that period, Convention jurisprudence required that his continuing detention should be supervised in accordance with a procedure compliant with Article 5.4.    However, a unanimous Court of Appeal reversed my decision.  They held that for the whole period for which a person is detained under a longer than commensurate sentence, even that part which is imposed solely for preventive purposes, there is no need for supervision because the period is incorporated in the original decision of the court. 

27.	 It is necessary to analyse this decision since Mr.Giffin and Ms Steyn, counsel for the Parole Board, each submits that it is determinative of this aspect of the case.  Mr.. Fitzgerald submits that it is wrong and that the first instance judgment was correct -(a view which even if, as he insists, it is not designed to curry favour with me, may perhaps be not wholly uninfluenced by the fact that he was the unsuccessful counsel in the Court of Appeal)- and more relevantly, since the decision is binding on me, clearly distinguishable.
  
28.	The leading judgment was given by Kennedy LJ, with whose judgment May and Tuckey LJJ agreed.  He commented that the increased sentence was “no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the increase has a statutory basis…” (para.17).  He plainly meant by this that it was always open to a court to give a longer sentence than would otherwise be given in order to reflect the function of protecting the public from harm, and that there was no significance in the fact that the power was explicitly conferred by statute. He continued as follows: 

“It is certainly possible to argue that for the purposes of s. 2(2)(b) of the 1991 Act  [80(2)(b) of the PCCA] the ‘seriousness of the offence’ includes a consideration of other offences committed by the offender, but equally it is clear that the longer determinate term is imposed, at least in part, because in the opinion of the court it is necessary to protect the public from serious harm from the offender.   The decision to impose the longer term is plainly a judicial decision, every aspect of which is subject to appeal, and so, as it seems to me, in the words used by the European Court of Human Rights in De Wilde v Belgium (No 1) (1971) 1 EHRR 373 at 407 (para 76) ‘the supervision required by Article 5(4) is incorporated in the decision’. The sentence is not determinate.   It cannot exceed the statutory maximum for the index offence, and it does not hand over to the executive the decision as to when the offender should be released, which can be contrasted with the position in relation to many discretionary life sentences where the sentencing court concludes that the offender will remain a potential danger for an uncertain period of time (see R v Hodgson (1967) 52 Cr App R 113).   In the type of case with which we are concerned a period of time is fixed precisely because the sentencing judge considers that he or she is in a position to fix it even though it is clear than in many cases the risk which an offender will present to the public is capable of fluctuating with the passage of time.”

May LJ also gave a brief judgment and summarised his conclusions as follows:

“…The principal reasons which lead me to this conclusion are: (a) A sentence under s2(2)(b) of the Criminal Justice Act 1991 – now s 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 – is a single determinate sentence, the product of a judicial decision.   (b) Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender, (i) the length of the sentence is, and is intended to be, determined by the judge at the time of sentence; (ii) it is not intended to be reviewed, other than on appeal; and (iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoner’s release – see the European Court of Human Rights’ judgment in Thynne, Wilson and Gunnell v UK (1990) 13 EHRR 666 at 693 (para73), to which Kennedy LJ refers in his judgment…. (c) All the European authorities to which Kennedy LJ has referred which conclude that art 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) requires an appropriate procedure allowing a court to determine the continued lawfulness of detention, concern sentences which were indeterminate and where otherwise the decision whether to release the prisoner lay with the executive.   Neither applies to sentences under s 2(2)(b) of the 1991 Act.   (d) Section 2(2)(b) applies to violent or sexual offences where the court is of the opinion that it is necessary to protect the public from serious harm from the offender.   In some such combined circumstances, an indeterminate sentence may be an available alternative.   Even if that is not so, and although the sentence requires an element of judicial prediction, the choice of sentence is a judicial decision that a longer term necessary to protect the public should be determined at the time of the sentence.”

29.	Mr. Giffin and Ms Steyn say that the factors held to exclude an Article 5.4 supervision in that case are equally applicable here.  In this case too –and Mr Giffin placed considerable emphasis on this-the sentence is a determinate one, all aspects of which are appealable. Furthermore, it does not permit the executive to determine the time of release.  Mr. Giffin also put particular weight on the fact that it was, he submitted, the “usual exercise by the court of its ordinary sentencing function.”

30.	Mr. Fitzgerald submits that the factors which persuaded the Court of Appeal in Giles do not apply to the same extent here. When passing an extended sentence, the judge does not predetermine the period of actual custody; he merely predetermines the period of compulsory supervision in the community after the initial custodial term has been completed.  Thereafter his detention is indeed at the discretion of the executive, albeit under the supervision of the Parole Board.  The period of detention is not determined by the sentencing court at all, neither initially nor later.  The length of the period to be served in prison, as opposed to the period for which the prisoner is at risk of prison, is no more determined here than it is in the case of discretionary or mandatory life sentences, and yet they are subject to Article 5.4 controls once the tariff or minimum period has been exhausted.  The fact that there is a maximum period for which the licence can operate does not affect that fact.  

31.	I agree with these submissions of Mr. Fitzgerald.  They are, as I have indicated, supported by the fact that the domestic law does in fact confer upon the Parole Board the very supervision which Article 5.4 requires.  In contrast, it does not so provide for longer than commensurate sentences. Moreover, in my judgment Mr. Giffin is not right to assert that it is part of the ordinary sentencing powers of the judge to impose an extended licence period.  As Kennedy LJ’s judgment indicates, judges have always been able to increase a custodial sentence to reflect a preventive element, even absent the powers conferred by section 80.  By contrast, the judge has no general sentencing power to extend the licence period otherwise applicable; that has been a matter fixed by Parliament and it can only be extended by the judge in the case of an extended sentence because of express statutory authority.  Mr. Giffin also commented that it would be absurd if there is supervision of an extended sentence but not the more draconian longer than commensurate sentence.  If it is an absurdity, it is one reflected in the current legislation.  But I do not accept that it is; the difference is that in the latter case the judge has stipulated a period of custody at the time of sentence; he takes the view that it is necessary to meet the objectives of penalty, deterrence and prevention.  By contrast, the judge passing an extended sentence hopes and expects that the risk to the public can be managed by appropriate supervision.  He recognises that if that turns out to be wrong it may lead to further detention, but he has not stipulated for that extended period to be part of the custodial term.  Moreover, the factors which cause the recall may themselves change over time, and the sentencing judge has not sought to cater for that fact in his original sentence in the way that he has in a longer than commensurate sentence.  

32.	Accordingly, I conclude that the principles adopted by the European jurisprudence for ensuring the continued legality of those released on licence are applicable to prisoners who are recalled during the period when they are on extended licence.  There is a strong justification for this.   It is undesirable that a person should lose such a fundamental human right as his liberty, for a period which could be as long as 10 years, not because of what he has done but because of the risk of what he might do, without periodic supervision to ensure that the public interest really does require the continuation of such a draconian sanction.  It must be remembered that the material circumstances here, unlike where a longer than commensurate sentence is imposed, are that the sentencing judge has formed the view that the risks to the public can be supervised in the community; they are not such as to justify continued detention from the outset.   Even if that expectation proves to be unfounded and further detention is required, in my judgment Article 5 requires that this is a matter that should be kept under consideration.  That, of course, is no more than Parliament currently requires also.

Does the scheme infringe Article 5 principles? 

33.	Mr. Fitzgerald submits that the framework of the legislation means that the recall and detention of a prisoner for breach of the extended licence can never be a response designed to achieve the objectives of the original sentence in a proportionate way.   He relies upon two distinct but interrelated strands in this argument. First, he says that the objective of the original sentence is to provide for the management of risk by supervision in the community.  The original sentence does not order a custodial sentence for the period of extended licence at all.  That flows as a result of the supervision arrangements breaking down, or otherwise being ineffective to achieve the objective, but the detention does not itself achieve the objective of the original sentence.  He says that the position is different to that of someone subject to a mandatory or discretionary life sentence.  In those cases the recall is directly referable to the ongoing custodial sentence which is, as it were, the default position.  By contrast, in this case the recall involves an executive act requiring detention for a wholly different reason to that for which the sentence was imposed, and which is not related to any period of continuing detention.

34.	Mr. Fitzgerald also contends that where a prisoner can be recalled for the whole of the remainder of the extended licence period, without the court having any power to impose a lesser penalty to fit the offence, it cannot constitute a proportionate response so as to make the detention compliant with Article 5.1.  The prisoner may be detained for a significantly longer period than the custodial term of the original offence without a proper criminal trial as required by Article 6.

35.	I reject this fundamental attack on the legislative structure.  Mr. Fitzgerald had to distinguish the position of those given life sentences because the Court of Appeal has held in R (Noorkoiv) v Secretary of State for the Home Department [2002] ECWA 770; [2002] 1 WLR 3284 that where a prisoner is given an automatic life sentence, his detention during the licence period does not of itself infringe Article 5.1.  (In that case, however, the court did hold that it was an infringement of his rights under Article 5.4 to delay consideration of his right to release for more than a very short period beyond the end of the tariff period.)  As to the argument that Article 5.1 was infringed, Simon Brown LJ said this, after citing para.5.1 (a)(at paras 51 to 54):

“51.	As the European Court of Human Rights made it clear in Weeks v United Kingdom 10 EHRR 293, 308, para 42, ‘the detention’ must result from, ‘following and depend upon’ or occur ‘by virtue of’ the ‘conviction’.   In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue.

52.	The applicant in Week’s case had been sentenced in 1966 to life imprisonment.   Following release on licence in March 1976 he was recalled to prison in June 1977 by the Home Secretary, the recall being confirmed by the Parole Board in December 1977.   The court said, at p 312, para 49:

“Applying the principles stated in the Van Droogenbroeck judgment 44 EHRR 443, the formal legal connection between Mr. Weeks’s conviction in 1966 and his recall some ten years later is not on its own sufficient to justify the contested detention under article 5(1)(a).   The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or re-detain was based on grounds that were inconsistent with the objectives of the sentencing court.   ‘In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5’ [a citation from the Van Droogenbroeck judgment].”

53.	In the end, the court concluded that Mr Weeks detention had not been incompatible with Article 5(1) but that his rights under Article 5(4) had been breached.

54.	Discretionary life sentences are imposed for the very reason that the sentencing court cannot be satisfied that the prisoner will no longer be a danger when the tariff part of his sentence ends.   (Post – R v Offen [2001] 1 WLR 253, that is substantially true too in the case of an automatic life sentence).   That being the rationale, it seems to me impossible to suggest that at the tariff expiry date there ceases to be “a sufficient causal connection between the conviction and the deprivation of liberty”: Weeks’s case 10 EHRR 293, 308, para 42.   There is no question of the “decision not to release on that date” being inconsistent with the objectives of the sentencing court” so as to transform the detention into “a deprivation of liberty that was arbitrary”; Weeks’s case, at para 49.   True, para 49 contemplates that the required causal link might “eventually” be broken.   To my mind, however, that would be so only in very exceptional cases.   Mere delay in article 5(4) proceedings, even after the tariff expiry date, would not in my judgment break the causal link.”

36.	Lord Woolf held to similar effect: see paras 61 and 62.

61.    In so far as the European Convention for the Protection of Human Rights and Fundamental Freedoms has a role to play in this appeal, it is article 5(4) which is relevant and not article 5(1).   Article 5(1) is not relevant because the justification for the detention of a prisoner sentenced to life imprisonment (whether discretionary or automatic or mandatory) is that sentence and not the fixing of the tariff period.

62.   The fixing of the tariff period determines when a prisoner has a right to have the question of his release considered by the Parole Board, but the expiry of the tariff period does not, by itself, make the detention unlawful.  The detention is still lawful detention “after conviction by a competent court” and accordingly, detention which complies with article 5(1)(a).   It is, however, detention from which, under both domestic legislation and article 5(4), on the expiry of the tariff period, the state is required to release the prisoner unless he constitutes a danger to the public (having given the prisoner an opportunity to establish that this is the position)..”

37.	In my judgment there is no infringement of Article 5.1 when a prisoner on licence is detained whether following breach of the terms of the licence or because other information raises fresh fears that he may commit further offences.  There is not in those circumstances a severing of the causal link between the sentence for the original conviction and the subsequent detention.  On the contrary, the sentencing judge will have appreciated at the time of imposing the original extended sentence that there is a possibility that further imprisonment may arise if there can be no effective supervision of the prisoner in the community, or if that supervision is failing to achieve its objectives.  Such detention is linked to the original sentence; indeed, it is necessary to make the extended licence period effective.  If the very principle of recall were unlawful, there would be no sanction for breaches of the licence which demonstrated that the risk of further offending could not be controlled by supervision in the community, and the objective of the sentence would thereby be defeated.

38.	Similarly, I do not accept that the fact that the sentence may be for the duration of the extended sentence makes it disproportionate.  The sentence is subject to periodic supervision, as Article 5.4 requires, and this gives effect to the continuing need to ensure that the original objective is maintained.  

39.	It follows that I reject this aspect of the claim.  The legislative scheme is not inherently defective in failing to respect Article 5 rights, even where full use is made of the powers to impose the extended licence.  

The test to apply on recall

40.	It is alleged that the Parole Board failed to identify which type of offences it considered the claimant was at risk of committing so as to justify his return into detention. Indeed, it is accepted that they did not in terms do so.  They simply concluded that the claimant’s immediate release would “present an unacceptable risk to the public of further offences being committed”, thereby repeating the statutory language.   All counsel agreed that the power to detain in custody after recall during the extended licence period could only be exercised to achieve the purpose for which the extended sentence had been imposed by the sentencing judge.  Mr Giffin and Ms Steyn accepted that this followed as a matter of domestic law, and in my judgment they were plainly right to make that concession.  The power is clearly conferred to protect the public from the same risks which the sentencing judge identified.   In addition, this requirement plainly follows as a matter of Convention law if, as I have found, the deprivation of liberty resulting from the decision to detain does not meet the criteria of Article 5.1 solely, and without further control, by virtue of the original sentence.

41.	That raises the question what the purpose is, and in particular whether the sentencing judge is constrained to pass an extended sentence only where the risk of reoffending is limited to certain categories of offence.   The extended licence itself is of course only available to the sentencer where the index offence is a sexual or violent offence as defined in the legislation.  On the face of it, however, section 85(1)(b) does not require that the sentencer should have these particular categories of offence in mind when deciding whether there is a risk of the commission of further offences.  No particular type or character of crime is identified.  This suggests that the extended licence could be used even where there was no risk in the court’s opinion that there would be further sexual of violent offences but merely a risk of different kinds of offending altogether, such as burglary.  This was initially the approach adopted by both the Secretary of State and the Parole Board in their written skeleton arguments.  It followed from this that if the power was exercised because of the judge’s perception that there was a risk of further offences of any kind, whether including the index offences or not, then the Parole Board in turn would not have to be satisfied of reoffending in relation to any particular categories of offences.   However, both modified their stance in oral submissions and accepted, as Mr. Fitzgerald had submitted, that at the very least the judge had to be satisfied that there was a risk of further sexual or violent crimes as defined being committed before the power to impose the extended licence could be exercised.  

42.	In my view the concessions made by the Secretary of State and the Parole Board have been properly made.    I do not believe that Parliament could have intended that an extended sentence could be imposed to cater solely for the risk of further offences of burglary, for example, when the triggering offence has to be either a sexual or violent offence.  If such an extended sentence cannot be passed where the index offence itself is burglary, by what sensible principle should it be imposed where the index offence is something wholly different? If it were the intention to permit the imposition of extended supervision to cater for the risk of any type of offence, there would be no rationale in defining the circumstances in which the extended licence could be imposed by reference to specific offences.  And what would be the justification for permitting an extended licence period of ten years when the index offence was a sexual one but only five years when it was a violent one, if the concern of the sentencer could properly be offences which fell into neither category? 

43.	Indeed, Mr. Giffin accepted that the extended sentence could be imposed only where the judge concluded that there was a propensity to commit offences of the same nature as the trigger offence.   I think that this principle is probably too restrictive; there may be circumstances, albeit very exceptional, where  an accused is tried for a sex offence committed in circumstances which, in the light of the accused’s record, suggested a future risk from violent rather than further sexual offences.  The power could surely be exercised in such circumstances. I would have thought that it could be exercised whenever the nature and circumstances of the offence or offences for which the claimant has been convicted, when considered in the context of the full range of sentencing material before the judge, such as the antecedents and relevant reports, causes the judge to consider that there is a risk to the public of the further commission of offences of a sexual or violent nature as defined, or both.  I am equally sure that in practice judges are concerned only about the risk of such offences when imposing an extended sentence, and the possibility that they would impose it for reasons unconnected with the index offence is largely of theoretical interest only.

44.	Strictly, however, I do not have to determine that issue in this case.  I say that because it seems to me clear that the judge imposing the extended sentence in this case must have been concerned about the risk of future sexual (possibly as well as violent) offences. It is equally obvious that the Parole Board in this case was concerned about the risks of sexual offences being committed in the future.  This is demonstrated by the emphasis they put on the claimant’s failure to undertake work to address his behaviour and also the reference to the effect on his behaviour of his drinking.   It would be fully in accord with Article 5.1 to detain after recall for that reason since the detention would be achieving the objectives of the original sentence.  Indeed, whenever the Parole Board takes the view that the supervision arrangements in the community have fundamentally broken down, they are necessarily imposing detention for the reasons given by the sentencing judge.  They are in effect concluding that those risks which the judge considered justified the extended sentence, whatever they were, cannot be satisfactorily contained if the prisoner is allowed to remain within the community.  They do not have to have evidence of behaviour which of itself is directly linked to the risk of committing further offences, although obviously such evidence would justify recall and detention since it demonstrates that the supervision is not proving successful.    It will also suffice that the evidence shows that the conduct of the prisoner has been such that the licensing arrangements cannot be maintained.  I agree with Mr. Fitzgerald that not every misdemeanour by a prisoner on licence would justify his recall; the behaviour must be such as to show that the arrangements for supervision in the community cannot be sustained. That, however, is for the Parole Board to determine, and it is only if the evidence is not capable of sustaining their conclusion that the courts can interfere.

45.	No doubt there could be cases where the evidence merely indicated a fear of offences of dishonesty without these causing any legitimate concern about the ability to contain future sex or violent offences.  I would agree with Mr. Fitzgerald that it would not then be Article 5.1 compliant to impose re-detention.  The case of Stafford supports that conclusion, since the European Court of Human Rights there held that a prisoner subject to a mandatory life sentence could not be detained during his licence period for offences of fraud in circumstances where the objective of the original sentence (once at least the minimum period had been imposed) was to prevent serious harm to life and limb.  Since the evidence disclosed no such risk, Article 5.1 was held to be infringed.  But that is not this case. 

46.	Mr. Fitzgerald further submitted that in any event the Parole Board could only order continuing detention where the relevant offences demonstrated a risk of serious harm to the public. In his skeleton argument he relied upon the fact that this is what is required in order to detain during the licence period someone who is on a discretionary life sentence or HMP detainees.  Moreover, the statutory language in section 44A, which regulates the re-release of recalled prisoners subject to an extended sentence, is in almost identical terms to section 28 of the Crime (Sentences) Act 1997, which deals with the position of prisoners subject to a discretionary life sentence.  In oral argument he also focused on the fact that it is necessary to establish a risk of serious harm before anyone can be detained in the public interest when a longer than commensurate sentence is imposed. If that is the requirement for these more serious offences, how can it be justified to re-detain those on extended sentences by the application of less rigorous criteria? 

47.	The short answer to this is that Parliament has so provided.  Even if the position is anomalous – and I am not convinced that it is since the minimum period of detention will typically be longer in those cases- it is plain that the objective of the extended sentence is different to that of either the life sentence or the longer than commensurate sentence.  Moreover, when the concept of extended licence was first introduced it did indeed require that the judge should apprehend a risk of serious harm.  Section 44 of the Criminal Justice Act 1991 permitted the licence period to be extended to the end of the sentence, having regard to the need to protect the public from serious harm.                But that is no longer a requirement.  It was therefore no oversight that section 85 is framed in the terms it is.  As Mr. Fitzgerald accepted, there is no basis on which it can be argued that Convention jurisprudence requires that detention in these circumstances can only be where there is serious risk of harm to life or limb.  Moreover, the possibility of recall must have been envisaged by Parliament when it empowered the courts to pass a sentence of this nature.  The only question, therefore, under Convention law is whether the later detention is consistent with the objectives of the original sentence, those objectives being a matter of domestic law to determine.  In this case it plainly was.

48.	For similar reasons I see no basis for the argument that the Parole Board should be satisfied to a high degree of the likelihood of reoffending.  That is not what the section says.  The question is whether continuing confinement is necessary for the protection of the public.  It must be remembered that the sentencing judge has already identified the potential risk and the Board is frequently seeking to identify whether that risk can continue to be dealt with by supervision or whether those arrangements have broken down.  In such cases the Board need only be satisfied that they have broken down to the extent that the protection of the public interest warrants recall. In other cases there may be information which will cause the Board to take the view that there is an unacceptable risk of reoffending, notwithstanding that the licence conditions have been complied with.  The Board may properly conclude that the risk is unacceptable, notwithstanding that it is not high.  No doubt the risk must be real or substantial as opposed to being merely fanciful or imperceptible.  That is the test adopted in the case of prisoners serving a discretionary life sentence, albeit in relation to a different risk: see R v Parole Board ex p. Bradley [1991] 1 WLR 134.  I see no reason why that approach should not be equally applicable here.  I do not consider that any higher test is necessary.

The presumption of detention.

49.	The claimant contends that section 44A infringes Article 5.1 because it imposes a burden of proof upon the claimant to satisfy the Parole Board that it is no longer necessary to continue the detention whereas it ought to be for the Board to be satisfied that detention is necessary.  Ms Steyn submitted that it is inappropriate to refer to the concept of burden of proof in cases of this kind where the function of the Parole Board is inquisitorial rather than adversarial, and where it has to assess future risk.  She referred me to a number of  authorities to that effect, including certain observations of Lord Bingham in R v Lichniak [2002] 3 WLR 1834 at para.16 in which he said in the context of mandatory life prisoners: 

“I doubt whether there is in truth a burden of proof on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the Board to consider all the available material and form a judgment.”

50.	I accept that the concept of burden of proof is an inappropriate term, but nevertheless it does seem to me that it is perfectly apposite to describe the position in terms of their being a presumption that the prisoner will be detained unless the Parole Board is satisfied to the contrary.  Ms Steyn contended that there was not even such a presumption; it was simply a matter of the Board considering all the relevant material and giving it such weight as it considered appropriate.  I was referred to the judgment of Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271 at 302 in which he explained how adjudicators must adopt such an approach when considering the question of internal flight in asylum claims.  I confess that I do not wholly understand this argument.  I fully appreciate that it will only be in very exceptional cases indeed where the presumption is likely to determine the outcome of any detention case. In practice the Board will almost always have evidence which will enable it to reach a clear conclusion on the issue of future risk.  Moreover, even if it simply repeats the formula for detention contained in the statutory language it will be plain that it had ample evidence to justify the decision to detain, and will often say so, as in this case. However, there is in my view a distinction between on the one hand the Board being required to order his release if satisfied that it is no longer necessary to detain the prisoner, which is how the legislation is framed; and on the other the Board being required to release unless satisfied that it is necessary to detain the prisoner, which is how Mr. Fitzgerald says it ought to be framed in order to comply with Article 5.1.  The logic of Ms. Steyn’s argument, as she was constrained to accept, is that either formulation would have precisely the same effect.  I do not accept that.  In my view there is a clear distinction between the two formulations, notwithstanding that in practice it is likely to be of little significance which is adopted. As the provision stands the default position is that detention will continue unless the Board is satisfied that this is not necessary.  If after hearing all the evidence the Board remains genuinely unsure whether the prisoner needs to be detained or not, it must on the ordinary construction of section 44A continue his detention.  On the alternative formulation the prisoner in that situation would be at liberty (albeit on licence.)

51.	The question, therefore, is whether it is a breach of the Convention to frame the presumption or default position in favour of detention rather than liberty.  The claimant relies upon the decision of the Court of Appeal in R(H) v Mental Health Review Tribunal [2002]Q.B.1  in which the court held, in the context of continuing detention someone under the mental health legislation that it was contrary to Article 5.1 to put the onus on him to prove that he was not suffering from a relevant mental illness.  However, I accept the submissions of the Parole Board that this case is clearly distinguishable: it concerned Article 5.1(e) and further it was conceded in the light of the decision in Winterwerp v the Netherlands (1979) 2 EHRR 387 that the same test had to be adopted for combined detention as for the original detention.  This plainly put the burden on the State to establish the relevant illness.

52.	Both the Parole Board and the Secretary of State submit that different considerations apply when Article 5.1(a) is in issue.  They referred me to two decisions in particular which they submitted were decisive of the matter.  First, in Comerford v UK (Applic. No 29193/95, 9 April 1997) the European Commission of Human Rights considered a complaint from a prisoner detained at Her Majesty’s pleasure who contended that it was a breach of Article 5.1 for the domestic legislation to require the Parole Board to be satisfied that he did not continue to represent a risk to life or limb, whereas the presumption ought to have required it to be positively satisfied that he did.  The Commission rejected the claim and said this:

“Whilst a test which in terms requires the Parole Board to satisfy itself that the applicant no longer represents a danger to the life or limb of the public gives rise to a different presumption from a test which in terms requires the Parole Board to release the applicant unless it is established that he continues to represent a danger, namely in the form case that the applicant is to be considered to represent a risk unless the contrary is proved, the Commission does not consider that such a test may be said to be based on grounds inconsistent with the objectives of the sentencing court so as to constitute a violation of Article 5 para (1)(a) of the Convention.” 

Similarly in the Lichniak case the House of Lords rejected an identical argument in connection with a claimant serving a mandatory life sentence.  Lord Bingham said this at para.16:
 
“I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and from a judgment.    There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, the case of someone who once has taken life with the intent necessary for murder, to prefer the latter in case of doubt.  In any event, this is a defensible process: material going to show that a prisoner is not dangerous will be before the board, and if the board is thought to show an exaggerated degree of caution it can be challenged.   I would again accept that a convicted murderer would very much prefer not to be subject, on leaving prison, to a life licence carrying the threat of indefinite recall.   But a prisoner released, as Ms Lichniak has been, should be in no danger of recall in the absence of any resort to violence, and the 1997 Act provides (in section 32) that the propriety of any recall be the subject of independent assessment by the Parole Board.”

53. 	I do not accept that these decisions are decisive of extended sentence cases.  In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed, there would be no power at that stage to detain the prisoner in custody for that period.  The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails.  The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty, since the judge must have assumed that a longer than commensurate sentence was not appropriate.  In my judgment the real analogy with cases such as Lichniak would be if there were a process whereby the prisoner could challenge his having to remain on licence; a presumption that this state of affairs should continue unless he could demonstrate that the public interest would be properly protected by giving him total liberty and releasing him from licence would be wholly compatible with Article 5.  But here the presumption operates not to preserve what might be termed the “default position” reflecting the original sentence when the prisoner is claiming the right to be released even from the constraints of the licence.   Rather it is to impose a stricter penalty, which is only justified when the objective of the original sentence cannot be achieved. 

54.	In my judgment the provisions of Article 5.1 are not met if the language of section 44A is to be construed in the ordinary way.  The Parole Board needs to be satisfied that the risk to the public cannot be dealt with appropriately by leaving the prisoner in the community. This means that they should be satisfied that he needs to be confined in order properly to protect the public interest. I do not accept that it is consistent with the original sentence to deprive someone of his liberty, which is a more draconian penalty, unless it is shown that the initial objective has failed.  Otherwise he loses his liberty without having been shown to have done anything to justify that: the original offence or offences did not warrant it, nor has he been shown to have infringed the terms of his licence.  To put this point another way, the Parole Board has to be satisfied that it is no longer necessary to detain him. The premise is that it was necessary in the first place.  However, this seems to me to be a false premise.  At the point of his initial recall at least, it has not ever been shown to the satisfaction of a court that his current detention was necessary.   No doubt it has appeared necessary to the executive when recalling him, but the Board should not be required to start from the premise that this assessment was correct.  That is something about which the Parole Board itself should be satisfied.

55.	The question which then arises is whether it is possible to give section 44A a construction which is compatible with these Convention rights in accordance with section 3 of the Human Rights Act, or whether it is necessary to make a declaration of incompatibility under section 4.  Both the claimant and the Secretary of State submit that it is possible to adopt the section 3 route.  This can be done, it is submitted, by construing the word “necessary” in a sufficiently flexible way.  I agree that it is possible to achieve consistency with the Convention in this manner.  It involves interpreting the phrase “no longer necessary for the protection of the public interest ” in section 44A in such a way that the Board must reach that conclusion unless positively satisfied that continuing detention is necessary in the public interest.  It is not necessary to add to or amend the language of the section to achieve this result.

56.	As I have already indicated, at the behest of the parties I have decided this issue notwithstanding that on the facts of this case the detention was not determined as the result of the application of any presumption. 

Hearsay submission

57.	Finally, Mr. Fitzgerald submitted that the decision of the Parole Board in this case was flawed because they based their assessment on future risk by having regard to a number of material findings of fact which had been put in dispute by the claimant.   He accepted that in principle it was open to the Parole Board to take into account hearsay evidence, and that would be so even if, as he contended, the Parole Board was determining civil rights within the meaning of Article 6: see R(McCann) v Manchester Crown Court [2002] UKHL39;[2002]3WLR 1313 per Lord Steyn at para.36).  His contention was that where that evidence was factual and was not accepted by the prisoner, the Parole Board had either to test it by requiring the relevant witnesses to be called and permitting them to be subject to cross-examination, or else it ought to pay no regard to that particular evidence in reaching its conclusions.   He relied upon a decision of the House of Lords in In re H [1996] A.C. 563.   In that case the House of Lords held in the context of determining whether a child could be put into care because of the risk of sexual harm in the future, such a conclusion could not be based upon alleged abuse in the past unless the judge had first established on the balance of probabilities that such abuse had in fact occurred.

58.	Both Mr. Giffin and Ms Steyn accepted that there was a duty on the Parole Board to act fairly, and that there would be circumstances where that duty could require the determination of factual matters by cross-examination of relevant witnesses.   An example, in the context of prisoners, is the case of R v Hull Prison Visitors ex parte St. Germain [1979] 1WLR 1401 where the Divisional Court held that it was necessary for prisoners subject to disciplinary charges (not a recall case) resulting in loss of remission to be entitled to call and cross examine witnesses.  In that case, however, they were alleged to have been involved in a riot, and they disputed the acts attributed to them which constituted the very basis of the charges against them. Both the Secretary of State and the Parole Board denied that this case, or indeed any other authority, required that whenever the Parole Board were making a determination resting in part on the basis of facts which the claimant disputed, it was always necessary for witnesses of fact to be called and cross examined to test the factual assertions.   The fact that Mr Sim in this case was maintaining that the factual allegations were false was a factor which the Parole Board had to take into account when assessing the weight they could give to these matters, but ultimately they had to assess the question of risk, and they should do that by having regard to all the sources of evidence before them that might have a bearing on that issue.    If a particularly significant matter was hotly contested, then the Parole Board would be at risk of having acted unfairly if it were not to permit the prisoner properly to challenge that conclusion and to seek to demonstrate that the information was untrue.   They relied in this context on certain authorities including the McCann case to which I have made reference.  In that case the House of Lords held that when considering whether or not to make an anti-social behaviour order, the magistrates court was entitled to take into account hearsay and to give it such weight as it thought appropriate, bearing in mind that it was hearsay and was contested: see Lord Steyn at para 37; Lord Hutton at para.112-113.  Again, in R (Mckeown) v Wirral Borough Magistrates Court(CO 3972.2000) the Divisional Court held that it was not a breach of Article 5 for hearsay evidence to be  taken into consideration by the magistrates court.  That is a situation which is in some respects analogous to the role of the Parole Board.   In his judgment, Latham LJ said this at para 36: 

“where a decision is taken to deprive someone of his liberty, that should only be done after he has been given a fair opportunity to answer the basis upon which such an order is sought.  It seems to me that in testing whether or not such an opportunity has been given, it is essential to bear in mind the nature and purpose of the proceedings in question.”

	Later in his judgment he dealt with the question whether it was appropriate to take into account hearsay evidence and how the magistrates should approach that evidence: 

“40.   It seems to me, that the justice is simply required by the statute to come to an honest and rational opinion on the material put before him.   In doing so, he must bear in mind the consequences to the defendant, namely the fact that he is at risk of losing his liberty in the context of the presumption of innocence.   This was the view of this court in R v Liverpool Justices.   Article 5 does not, in my judgment require any different approach.   None of the cases which have been cited to us suggest that the provisions of Article 5 include a requirement that underlying facts relevant to detention are to be proved to the criminal standard proof.   This is not surprising, bearing in mind the delicate exercise on which the court is engaged in this type of jurisdiction, seeking to provide fairness to the defendant on the one hand, but securing the objectives of justice and the protection of the public during the period up to and including trial on the other.

41.   From the decisions in R v Liverpool Justices, Re Moles and R v Mansfield Justices [supra] it is clear that the material upon which a justice is entitled in domestic law to come to his opinion is not restricted to admissible evidence in the strict sense.   Lord Lane describes the common practice of the relevant material being presented by a police officer.   I see nothing in either Article 5 itself, or in the authorities to which we have referred, which suggest that, in itself, reliance on material other than evidence which would be admissible at a criminal trial would be a breach of the protection required by Article 5.   It is true that the European Court of Human Rights on occasions refers to the need for evidence; but that is used in contra-distinction to mere assertion.   It does not seem to me that any of the authorities to which we have been referred assist in determining the nature of that “evidence”.   Bearing in mind the differences in the rules for admissibility of evidence in the different jurisdictions of the Member States, it is perhaps not surprising that the court appears to have left resolution of that question to domestic law.

42. What undoubtedly is necessary, is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate.   This material is likely to range from mere assertions at the one end of the spectrum which is unlikely [or] may not have any probative effect, to documentary proof at the other end of the spectrum.   The procedural task of the justices is to ensure that the defendant has a full and fair opportunity to comment on, and answer that material.   If that material includes evidence from a witness, who gives oral testimony, clearly the defendant must be given the opportunity to cross-examine.   Likewise, if he wishes to give oral evidence he should be entitled to.   The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion.”

59.	In my judgment this summarises the approach which should generally suffice in relation to the Parole Board’s functions. I would only add the qualification, however, that there may be cases where fairness is not met simply by the Parole Board giving such weight to contested evidence as it thinks fit, whilst bearing in mind that it has not been tested.  Fairness may require a defendant to be able to challenge crucial evidence relied upon as a justification for recall by seeking to show by cross examination that it is false and ought not to be given any weight at all.  After all, lengthy periods of imprisonment are often potentially at stake.  The duty of the Parole Board is to dispose of the issue fairly, but as the Court of Appeal noted in the R (West) v Parole Board[2002]ECWA Civ1641, where the Court of Appeal held that recall decisions were not criminal proceedings within the meaning of Article 6, what constitutes such fair disposal will vary from case to case.

 60.	It follows that I reject Mr Fitzgerald’s submission that disputed facts must always be resolved by hearing primary evidence.  In my opinion the decision in In re H is remote from this jurisdiction and in any event turned significantly on the interplay of the statutory provisions in issue, as the leading judgment of Lord Nicholls makes clear.  The position of the Parole Board is closer to that of magistrates hearing bail applications but even that is not wholly analogous.  It is in my view important to bear in mind that the Board is considering a question of judgment which raises many considerations.   I accept that in many cases they will not be assessing the risk of reoffending directly –that will have been determined by the sentencing judge- but they will be exercising a judgment as to whether the conduct of the prisoner is such that those risks cannot be controlled within the community.    This is not simply a factual issue.

	Did fairness require oral evidence in this case?

61.	The question then is whether it was unfair in this case for the Board to fail to hear witnesses on particular factual issues.   In order to deal with this issue, it is pertinent briefly to recount the material that was before the Parole Board which caused it to reach its conclusions.   An important consideration weighing with the Parole Board was the fact that there were a number of occasions when the claimant had returned to the hospital under the influence of drink.    He accepted that there were occasions that he had had a drink but denied that he was inebriated.  However, he had been the subject of three separate warnings about this, and he had not sought to challenge them.   He had also, as he accepted, refused to take a breath test on certain occasions.   Second, he had refused to accept responsibility for the offence or to undertake any offending behaviour work.   It is not disputed that that is true, even although the reason he refused to undertake the remedial work was apparently because he feared that if he did it may jeopardise in some way his appeal against conviction.  The claimant did originally suggest that the Parole Board had erred in taking into account the fact that he was refusing to recognise and accept his guilt or to undertake work, but Mr. Fitzgerald recognised that this argument was hopeless in view of decisions such as R v Parole Board ex p. Oyston (2000) Prison Law Reports 45.   Third, there was evidence before the Parole Board from accounts given by individuals who were not however witnesses, that the claimant had been aggressive.   This he strongly denied; he accepted that on occasions he had been angry, and had also sought to calm a potentially violent occasion rather than being a party to it.   Finally, it was said, and the Parole Board appeared to have accepted, that he was dismissed from his employment because of his drunkenness.   That is also something which the claimant strongly denied; he submits that he left because other workers at the factory discovered the nature of his offences, and effectively caused him to be dismissed.

62.	In my judgment, it is quite unrealistic to suggest that in these circumstances the Parole Board had to call witnesses to deal with each and every incident which they took into consideration when reaching the conclusion that they did.   In particular, there is little that any witness could have said in connection with his drinking: it was not in doubt that he had been drinking, the question is only how much.   Inevitably that was a matter of impression from such matters as his behaviour, and his refusal to take breath tests.   Similarly, in connection with his refusal to undertake offending behaviour work, there is no question that he was refusing to participate.   The only issues where there was any real factual conflict that might have been assisted by oral evidence was in connection with the alleged acts of aggression, and  perhaps more specifically, the allegation that he was dismissed from his employment because he was drunk and as a consequence aggressive.

63.	There were a number of alleged incidents of aggression, and the Parole Board was plainly entitled to take the view that his denials in relation to his conduct in these matters were consistent with his denials on the other issues, such as his drinking and indeed his guilt of the offence.   In any event, it is plain that the aggression was only one of a number of factors in the overall assessment of whether or not he could be supervised effectively in the community, and it was not the only or even the key issue in the assessment.   I recognise that it can be difficult for sexual offenders if others at a hostel where they are living or at their place of work discover the nature of their offending; they may well be subject to taunts and provocative behaviour which may test their patience and their ability to control their temper.   I have no doubt that the Parole Board would have plenty of experience of problems of that kind, and that if they felt that they may be unjustly drawing inferences which were important in the context of their overall assessment, then they would need to have the evidence tested.   For example, if in his case the key issue had been whether or not they claimant had lost his job as a result of an episode of drinking, then there would have been a stronger argument that it was unfair simply to accept that on the basis of hearsay without hearing evidence on the point.  However, that incident only figured in the Board’s determination to a minor extent.  It was relied upon principally in support of the evidence of inebriation. 

64.	In short, it was for the Parole Board to determine which witnesses it considered necessary to ensure a fair hearing.   Ultimately of course, their decision is open to review by the courts who must determine whether or not they have acted procedurally fairly; R v Panel on Takeovers and Mergers ex p.  Guinness PLC [1990] 1 Q.B.146.  In this case I am fully satisfied that they did. 

Conclusions

65.	My conclusions are:

(1).   [The decision to continue to detain a prisoner who has been subject to recall during an extended licence period is a decision which attracts the safeguards of Article 5]; it is not a sufficient response to say the detention is justified by the original sentence.   [Accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with Article 5.4] (as indeed they currently are.)

(2).   [Section 44A(4) of the CJA 1991 must be construed so that the Parole Board is obliged to conclude that it is no longer necessary to detain the recalled prisoner unless the Board are positively satisfied that the interests of the public require that he should be confined.]

(3)   The Parole Board must be satisfied that the public interest requires that the prisoner be confined because of the risk that he will commit further offences, of either a sexual or violent nature, which the extended sentence was designed to deal with.   The Board does not, however, have to be satisfied that the risk is a high one, or that there is a substantial risk of physical or psychological harm.  Nor does the Board need to have evidence of behaviour which of itself is directly linked to the risk of committing further offences.   The sentencing judge has already identified such a risk, and accordingly it is enough if the evidence shows that the arrangements for supervision in the community cannot be sustained so as properly control that risk.

 (4) The Parole Board is entitled to consider hearsay evidence. Neither domestic jurisprudence, manifesting in the doctrine of fairness, nor Article 5 require that there should as a matter of course be cross-examination of witnesses to establish facts on which the Board relies.   Fairness will sometimes require this, however.  Moreover the Board must take account of the extent to which allegations are disputed, and bear in mind the extent to which they have been fully tested in cross-examination, when deciding what weight to give to these factors.

(5) In the circumstances of this case the Parole Board’s decision to continue the detention of the claimant was justifiable and involved no unfairness.

66.	Accordingly, although the claimant has been successful in some of the wider submissions of principle that have been advanced, his continuing detention by the Parole Board was not unlawful in the particular circumstances.  I will hear counsel on the question whether it is necessary or desirable to make any declarations with respect to the elements of the case on which the claimant has succeeded.

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Following the handing down of judgment the following declarations were made:

	(1)  The decision to continue to detain a prisoner who has been subject to recall during an extended licence period is a decision which attracts the safeguards of Article 5.  Accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with Article 5.4.

	(2)  Section 44A(4) of the Criminal Justice Act 1991 must be construed so that the Parole Board is obliged to conclude that it is no longer necessary to detain the recalled prisoner unless the Board are positively satisfied that the interests of the public require that he should be confined.

The second defendant was given leave to appeal; the claimant was given leave to cross-appeal.  No order for costs was made, save legal aid detailed assessment of the claimant's costs. 

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