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The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.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 circumstances. Neuberger L formulated a broader principle that where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4) because, for the duration of the sentence period, ‘the lawfulness of his detention’ has been ‘decided . . by a court’, namely the court which originally sentenced him to the term of imprisonment.
Lady Hale (dissenting) said: ‘In my view, the present law draws a principled distinction between those determinate prisoners who have reached the point in their sentence at which they are entitled to be released on licence and those who have not. If the former are recalled from their licence, and their representations to the Secretary of State fall on deaf ears, they are entitled to have their case referred to the Parole Board. The latter, whose release on licence was discretionary, are not.’ and ‘ our domestic law, which gives the Parole Board the power to decide upon the continued detention of a prisoner recalled after mandatory release on licence, but not after release on home detention curfew, draws a principled distinction. It is a distinction which is certainly consistent with the principles contained in article 5(1) and (4) of the European Convention. It is for that reason that, although agreeing with the ratio of the decision in this case, I would prefer it not to be taken further than the situation with which this case is concerned. ‘

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Carnwath, Lord Hughes
[2014] 4 All ER 251, [2014] UKSC 39, [2014] 3 WLR 436, [2015] 1 AC 176, UKSC 2012/0279
Bailii Summary, Bailii, SC, SC Summary
European Convention on Human Rights 5(4), Criminal Justice Act 2003 246
England and Wales
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: . .
Appeal fromWhiston, 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 . .
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 . .
CitedX v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
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 . .
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 . .
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. . .
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 . .
CitedBlack, 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 . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.533882