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 whether he should be released again and concluded that he should not. He sought to attack this decision by judicial review, but was refused permission. He complained that his recall to detention violated article 5.1 because there was no link between the renewed detention and the original sentence for supplying drugs. He also contended that he was entitled to a court-like review of the justification for his continued detention pursuant to article 5.4.
Held: The comapiant was inadmissible. The recall of a licensee to prison did not to involve the determination of a criminal charge against him: ‘[W]here an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures . . No new issues of lawfulness concerning the basis of the present applicant’s detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5(4) of the Convention.’
‘The court recalls that the applicant was sentenced to a determinate prison sentence of eight years after conviction by a competent criminal court and accordingly, his detention fell within sub-paragraph 1 (a) above. The applicant seeks to argue that after his release on licence he was lawfully at large and his situation was analogous to the situation applicable to the conditional liberty allowed to those on life licence (for example, Weeks v United Kingdom, judgment of 2 March 1987, Series A, no 114) and restricted patients on release from hospital (for example, X v United Kingdom, judgment of 5 November 1981, Series A, no 46) and therefore that his recall had to be properly linked to the basis of his original conviction and in conformity with the varying requirements of article 5.
The court considers however that there is a crucial distinction between the cases cited by the applicant and the circumstances of his own case. Discretionary and mandatory lifers, after the expiry of the punitive element of their sentence, are detained on the basis of risk – the justification for their continued detention is whether it is safe for the public for them to live in the community once more. Similarly the recall of restricted patients is based on factors arising from their mental health. The applicant however has been sentenced to a fixed prison term by a court as the punishment for his offence. The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re-offending. The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within the scope of article 5 ss 1(a) of the Convention.
Article 5 ss 1 does provide that at all times detention must be ‘in accordance with the law’. The court notes that the basis for the applicant’s recall was considered by the Parole Board, which found that he was in breach of the terms of his licence, and that its decision was in turn subject to judicial review. In the judicial review proceedings the applicant’s arguments concerning the lawfulness of his recall and the Parole Board’s procedure were rejected by the High Court and the Court of Appeal. On the whole bound to respect domestic courts’ interpretation of domestic law (see for example, Benham v United Kingdom, judgment of 10 June 1996, BAILII: [1996] ECHR 22 , Reports 1996-III, ss 41), the court detects no arbitrariness or other feature that would justify it departing from their assessment.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to article 35 ssss 3 and 4 of the Convention.
The applicant complains of lack of a court review of the justification of his continued detention after recall, invoking article 5 ss 4 of the Convention which 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 decided speedily by a court and his release ordered if the detention is not lawful’.
The court recalls that where an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures (see, mutatis mutandis, V v United Kingdom, no 24888/94, ECHR 1999-IX, ss 119, BAILII: [1999] ECHR 171 ; Stafford v the United Kingdom, (2002) 35 EHRR 32, ss 87). No new issues of lawfulness concerning the basis of the present applicant’s detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5 ss 4 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to article 35 ssss 3 and 4 of the Convention.’
Citations:
968/04, Unreported, 26 October 2004
Statutes:
European Convention on Human Rights 5.4
Jurisdiction:
Human Rights
Cited by:
Cited – Regina 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: . .
Cited – 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 . .
Cited – Whiston, 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 . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Prisons
Updated: 09 May 2022; Ref: scu.222100