The prisoner had been sentenced to an extended term of five years imprisonment for indecent assault. He had been released, and then recalled for alleged breaches of his licence. The respondent appealed findings that such a recall was subject to article 5, and that his release would be mandatory under s44A(b) if his continued detention was no longer necessary, and the board positively persuaded of that need.
Held: Given the case law since the first instance decision, it was clear that the prisoner had article 5.4 rights on recall. The judge’s interpretation of s44A was correct.
Keene LJ: ‘the concept of a burden of proof is inappropriate when one is involved in risk evaluation’.
Judges:
Ward, Keene LJJ, Munby J
Citations:
Times 02-Jan-2004, Gazette 05-Feb-2004, [2003] EWCA Civ 1845
Statutes:
European Convention on Human Rights 5, Criminal Justice Act 1991 39 44A(4)
Jurisdiction:
England and Wales
Citing:
Appeal from – Regina (Sim) v Secretary of State for the Home Department Admn 11-Feb-2003
The defendant had been convicted of a serious offence involving violece or sex, and been made subject to a extended sentence. He had been released on licence but recalled, and now challenged the system under which it had been decided that he should . .
Cited – Regina (Smith) v Parole Board (No 2) CA 31-Jul-2003
The applicant having been released on licence had his licence revoked. The decision had been made at a hearing which considered evidence on paper only, which he said was unfair.
Held: The case law had maintained a proper distinction between . .
Cited – Giles, 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. . .
Cited by:
Cited – Regina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Cited – McClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Lists of cited by and citing cases may be incomplete.
Prisons, Human Rights
Updated: 26 May 2022; Ref: scu.190132