Black, Regina (on the Application of) v Secretary of State for Justice: HL 21 Jan 2009

The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his release, but that had been overriden by the respondent. had not yet reached the point in his sentence when he was entitled to be released on licence. He was arguing that article 5(4) applied once he became eligible for discretionary release, so that it was a violation of his rights for the Secretary of State to reject the Parole Board’s recommendation that he be released. So his too was not a case of recall after mandatory release.
Held: There had been considerable difficulty arising from the failure to distinguish between discretionary life sentences imposed as punishment and those imposed for public protection. Nevertheless, the system was compliant. There was in fact no need in human rights terms to have involved the Parole Board. (Lord Phillips dissenting).
Lord Rodger re-formulated the question for the court as: ‘whether article 5(4) gives a long term prisoner, with a determinate sentence of more than 15 years, the right to take legal proceedings, at the half way stage of his sentence, to determine the lawfulness of his continuing detention.’, concluding that Article 5(4) did not confer that right: ‘According to the constant jurisprudence of the European Court conveniently summarised by Lord Hope of Craighead in R (Giles) v Parole Board [2004] 1 AC 1 , 30, para 40, the answer to that question is No. In 1995 and 1996, judges determined that it would be appropriate, and therefore lawful by virtue of section 2 of the 1991 Act, for Mr Black to be sentenced to be detained for a total of 24 years. In these circumstances, failing any fresh development which might make his detention unlawful, Mr Black’s article 5(4) Convention right to have the lawfulness of his detention after conviction decided by a court was satisfied by the original sentencing procedures.
Is the mere fact that he has reached the half-way stage in his sentences a fresh development which might make his detention unlawful? Plainly not: his detention would not be unlawful after the half-way point and before the two-thirds point, unless the Secretary of State had ordered his release under section 35 and he remained in custody. In fact, however, the Secretary of State has decided that he should not be released. So he remains detained in terms of the original lawful sentences and has no right to be set free. Other things being equal, he will not have a right to be set free until he has served two-thirds of his sentence and section 33(2) applies to him. At that point, if he were not released on licence, he would indeed have an article 5(4) Convention right to bring proceedings to have the lawfulness of his detention determined. In English law he would bring habeas corpus proceedings to secure his release.’
Lord Brown analysed the Strasbourg and domestic cases, and concluded that there was no infringement of Article 5. He differentiated determinate and indeterminate sentences : ‘The essential contrast struck by the European court is between on the one hand ‘the administrative implementation of the sentence of the court’, for example decisions regarding ‘early or conditional release from a determinate term of imprisonment’ (para 87 of the court’s judgment in Stafford 35 EHRR 1121), and on the other hand ‘fixing the tariff’ and later determining the length of post-tariff detention in life sentence cases. The administrative implementation of determinate sentences does not engage article 5(4); the decision when to release a prisoner subject to an indeterminate sentence does.’
As to a prisoners recall from licence, Lord Brown said: ‘Inescapably it follows from West that contrary to the view expressed in the Strasbourg court’s admissibility decision in Brown, a prisoner’s recall for breach of his licence conditions does raise, ‘new issues affecting the lawfulness of the detention’ such as to engage article 5(4) . And that seems to me clearly correct: it would not be lawful to recall a prisoner unless he had breached his licence conditions and there could well be an issue as to this. I wonder, indeed, if the European court would have decided Brown as they did had it followed, rather than preceded, the House’s decision in West. Be that as it may, recall cases certainly so far as domestic law goes, are to be treated as akin both to lifer cases in the post-tariff period and to the Van Droogenbroeck-type of case where, upon the expiry of the sentence, a prisoner is subjected to an executive power of preventive detention. And all these cases, submits Mr Owen, weaken the Secretary of State’s contention that there exists a core principle of Convention law that article 5(4) cannot be engaged during the term of a determinate sentence . . ‘

Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2009] UKHL 1, [2009] UKHRR 382, [2009] 2 WLR 282, [2009] 1 AC 949, [2009] 4 All ER 1, 26 BHRC 664, [2009] Prison LR 395, [2009] HRLR 15
Bailii, Times, HL
European Convention on Human Rights, Criminal Justice Act 1991 35(1)
England and Wales
CitedIn re De Wilde, Ooms and Versyp v Belgium (No 1) ECHR 18-Nov-1970
The applicants had been detained under Belgian vagrancy laws. An earlier decision had found that their rights had been infringed because of the lack of effective means for them to challenge their detention. The Belgian government said that the . .
Appeal fromBlack, Regina (on the Application of) v Secretary of State for Justice CA 15-Apr-2008
The prisoner complained of the power given to the defendant to block the early release of prisoners sentenced between certain dates for serious offences, saying that such a decision was for the courts only.
Held: The provision was incompatible . .
CitedVan Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
CitedWeeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
CitedStafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
CitedGanusauskas v Lithuania ECHR 7-Sep-1999
The applicant had been released on licence after serving half a six year prison service under a law which permitted the release of a prisoner on licence after serving half his sentence. There was then a series of court hearings which resulted in the . .
CitedMansell v United Kingdom ECHR 2-Jul-1997
The judge imposed a longer than commensurate sentence in an indecent assault case to protect the public. The applicant complained that he should have been entitled to a review of the lawfulness of his detention as he was in the same position as a . .
CitedWynne v United Kingdom ECHR 18-Jul-1994
A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was . .
CitedHussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
CitedPractice Statement (Crime: Sentencing) LCJ 1992
1. Sections 32 to 40 of the Criminal Justice Act 1991 come into force on 1 October 1992. They make radical changes with regard to sentences.
2. Remission is abolished.
3. Parole will affect only those sentenced to four years’ . .
CitedBrown v United Kingdom ECHR 26-Oct-2004
The applicant had been sentenced to eight years imprisonment for supplying heroin and released on licence after serving two-thirds of this sentence. He was recalled for breach of the residence conditions of his bail. The Parole Board then considered . .
CitedGiles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedGebura v Poland ECHR 6-Mar-2007
The applicant had, by court proceedings, established that he had under Polish law a right to release on licence after serving three-quarters of a determinate sentence. He complained that he had been unlawfully detained for 48 hours before being . .
CitedClift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .

Cited by:
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 . .
CitedRobinson, Regina (on The Application of) v Secretary of State for Justice CA 19-May-2010
The appellant had been released on licence during his sentence but then recalled. He contended that the effect of the newly introduced section 50A was a retrospective increase in his sentencce. . .
CitedWhiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
CitedYoungsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

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Human Rights, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.280075