Whiston, 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The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other opportunity to make representations, was infringement of his human rights.
Held: The appeal failed. ‘The critical question is whether in the particular circumstances of this case the recall from home detention curfew constitutes a fresh deprivation of liberty or whether that renewed detention remains justified by the original sentence of imprisonment.’ and ‘The release on home detention curfew was not properly to be viewed as the restoration of liberty sufficient to engage Article 5 if and when the prisoner was recalled to prison. It was a modified way of performing the original sentence imposed by the judge; the recall simply restores the primary way in which it was assumed that the sentence would be served.’

Pilll, Elias, Patten LJJ
[2012] EWCA Civ 1374, [2014] 1 QB 306, [2013] 2 WLR 1080
European Convention on Human Rights 5(4), Criminal Justice Act 2003 246 255
England and Wales
CitedBenson, 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 . .
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. . .
CitedMcAlinden, 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). . .
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 . .
CitedE v Norway ECHR 29-Aug-1990
The applicant suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as . .
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 . .
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 . .
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: . .
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 . .

Cited by:
Appeal fromWhiston, 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.

Criminal Sentencing, Human Rights, Prisons

Updated: 10 November 2021; Ref: scu.465364