Benson, Regina (on the Application of) v Secretary of State for Justice: Admn 20 Aug 2007

The claimant complained that the revocation of his home detention licence under section 255 was an infringement of his human rights.
Held: There had been no deprivation of liberty.
Collins J said: ‘In my judgment, having regard to the various authorities, it would be wrong for me to decide that Article 5(4) does apply in the situation that exists here. Accordingly, as it seems to me, the provisions of section 255(2) are not incompatible with the Convention. There is no right to have a consideration of the lawfulness of the detention since it is covered by the determinate sentence passed by the court. One can perhaps justify that by saying that it is simply the means whereby the sentence of the court is to be served. It may be in a closed prison. It may be in an open prison. It may equally be by means of a licence and tagging which itself involves a degree of restriction on liberty. Indeed, one has to note that there is a decision in relation to control orders whereby alleged terrorists have orders made, which involve tagging and curfew, and those can amount to deprivation of liberty within the meaning of Article 5 if the conditions are severe enough to justify it . . But that makes plain that this sort of licence involving tagging and curfew orders is capable of being regarded as a deprivation of liberty. It certainly is less than freedom, so far as the individual is concerned. In those circumstances, as it seems to me, it can properly be regarded as a manner in which the sentence is being served in the same way as, as I have said, open prison or closed prison. That may well be a way of justifying the distinction to be drawn between it and the situation where there has to be a release on licence and the licence cannot and does not contain such severe measures as are appropriate in release under section 246.’

Judges:

Collins J

Citations:

[2007] EWHC 2055 (Admin)

Links:

Bailii

Statutes:

Criminal Justice Act 2003 246 255, European Convention on Human Rights 5(4)

Jurisdiction:

England and Wales

Cited by:

AppliedMcAlinden, Regina (on The Application of) v Secretary of State for The Home Department Admn 4-May-2010
A section 255 home detention licence revocation does not involve a deprivation of liberty so as to engage Article 5(4). . .
CitedWhiston, Regina (on The Application of) v Secretary of State for Justice CA 25-Oct-2012
The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 03 April 2022; Ref: scu.259646