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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McAlinden, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1557 (Admin) (04 May 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1557.html Cite as: [2010] EWHC 1557 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		4 May 2010

1. HIS HONOUR JUDGE MILWYN JARMAN QC: In this case the claimant was sentenced to a term of imprisonment of one year, three months and 20 days for an offence of assault occasioning actual bodily harm. On 14 August 2006 he was released from Her Majesty's Prison Belmarsh on Home Detention Curfew, also known as electronic tagging, under the provisions of section 246 of the Criminal Justice Act 2003. That licence was due to last until 17 November 2006. That is the date at which the claimant would have served the requisite custodial period as defined in section 244(3) of the 2003 Act.
2. On 3 September 2006, however, the claimant's licence was revoked by the Secretary of State pursuant to section 255 of the 2003 Act, after the company responsible for the electronic tagging had reported that the strap attached to the tag, known as a personal identification device, on the claimant's leg had been tampered with, and accordingly the claimant was recalled to prison.
3. On 27 October 2006, in accordance with his right to do so under section 255(2) of the 2003 Act, he made written representations against this recall and requested that that should be considered by the Parole Board.
4. On 6 November 2006 a report was obtained from a firm of independent forensic scientists and consultant engineers on the issue of what had caused the failure of the personal identification device. A copy of that report was sent to the claimant's solicitors on 7 November 2006. It summarised that the strap had failed because it had been deliberately pulled and that the integrity of the device was not compromised by any component defect or weakness. That is something which the claimant denied.
5. He was released automatically in December 2006. Permission was granted for him to apply for judicial review by Collins J on 20 April 2007 after such release. The judge did so on the basis that the claim raised important issues of principle. There have been a number of adjournments while cases have been decided by the House of Lords, but the claimant submits that the cases have not determined the issues raised by this claimant.
6. Those issues are these. Firstly, whether the failure to provide for the Parole Board to review the revocation of the claimant's licence was incompatible with his rights under Article 5(4) of the European Convention on Human Rights. He submits that his rights were violated because there was no review of his recall to prison by a court. Secondly, whether a declaration of incompatibility should be made if any violation of Article 5(4) is found.
7. I should set out not only Article 5(4) of the Convention, but Article 5(1). That reads:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court..."

8. Article 5(4) 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."

9. On behalf of the claimant, Mr Southey QC accepts that, in the case of R(Benson) v Secretary of State [2007] EWHC Admin 2055, Collins J concluded that Article 5(4) does not apply where a prisoner is recalled to prison for an alleged breach of Home Detention Curfew. Subsequently, Cranston J in Mason v Ministry of Justice [2009] 1 WLR 509 determined that Article 5(4) does not apply when the Prison Service decides whether to release a prisoner on Home Detention Curfew. He did not directly consider the position where a prisoner is recalled following release.
10. Since those two judgments were delivered, the House of Lords concluded in R(Black) v Secretary of State [2009] 1 AC 949 that Article 5(4) does not apply when a decision is taken as to whether a determinate prisoner should be released early. The House of Lords concluded that different considerations apply when a determinate prisoner is recalled.
11. Mr Southey, in advancing the claimant's case before me, realistically accepted that were it not for the determination of the matters in the case of Black, he would be in great difficulty in advancing the submissions which he does. It is therefore necessary to examine the statutory provisions which apply and also the cases in which these matters have been considered in some detail.
12. The following sections of the 2003 Act are relevant:

"246 Power to release prisoners on licence before required to do so

(1) Subject to subsections (2) to (4), the Secretary of State may—

(a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period, and

(b) release on licence under this section an intermittent custody prisoner when 135 or less of the required custodial days remain to be served.

(2) Subsection (1)(a) does not apply in relation to a prisoner unless—

(a) the length of the requisite custodial period is at least 6 weeks,

(b) he has served—

(i) at least 4 weeks of his sentence, and

(ii) at least one-half of the requisite custodial period.

...

254 Recall of prisoners while on licence

(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2) A person recalled to prison under subsection (1)—

(a) may make representations in writing with respect to his recall, and

(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

(3) The Secretary of State must refer to the Board the case of a person recalled under subsection (1).

(4) Where on a reference under subsection (3) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.

...

255 Recall of prisoners released early under section 246

(1) If it appears to the Secretary of State, as regards a person released on licence under section 246—

(a) that he has failed to comply with any condition included in his licence, or

(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence,

the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section.

(2) A person whose licence under section 246 is revoked under this section—

(a) may make representations in writing with respect to the revocation, and

(b) on his return to prison, must be informed of the reasons for the revocation and of his right to make representations.

(3) The Secretary of State, after considering any representations under subsection (2)(b) or any other matters, may cancel a revocation under this section.

(4) Where the revocation of a person's licence is cancelled under subsection (3), the person is to be treated for the purposes of section 246 as if he had not been recalled to prison under this section.

(5) On the revocation of a person's licence under section 246, he is liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large."

There had been some amendment to these provisions since the facts which give rise to this claim occurred, but there is no material difference to the matters which I have to determine.

13. It may be helpful if I set out in outline the policy of the Secretary of State in dealing with the procedures set out in these sections. I do so based upon a witness statement dated 23 April 2010 filed in these proceedings and made by Stephen Bailey, who is the Head of Release and HDC Policy within the Sentencing Policy and Penalties Unit at the Ministry of Justice. What Mr Bailey says in his statement is that where there is a breach of probation supervision elements of a prisoner's licence, then these would, in the normal course of events, be reported to the Public Protection Casework Section (otherwise known as PPCS), who would consider whether to revoke the licence and recall the offender to custody under section 254 of the 2003 Act. The consequences of that would be, subject to release direction from the Parole Board or the Secretary of State, the offender would be liable to be detained until the sentence expiry date. The case would be referred to the Parole Board following recall and also at annual reviews. The Board may direct the prisoner's re-release earlier if it assesses it safe to do so. It may also make no recommendation as to the release, and the case may be considered further by PPCS if, for example, there is a significant change of circumstances. The PPCS may then make a decision on behalf of the Secretary of State to release executively.
14. Where the offender fails to comply with the Home Detention Curfew conditions, this would be reported normally again to PPCS, who would then consider whether to revoke the licence and recall to custody under section 255 of the 2003 Act. The consequence of this type of recall is that an offender is only liable to be detained until the half-way point of his or her sentence and then to be released automatically and on licence if serving 12 months or more. If there is a dispute about the reasons for recall, then representations may be made to the Secretary of State, who will investigate the circumstances and obtain all relevant evidence relating to the recall. If it is established that there has been no breach, for example if electronic tagging equipment were found to be faulty, or that there was a justifiable and valid reason for the breach, then the Secretary of State in normal circumstances would be expected to allow the appeal and re-release the prisoner to complete the Home Detention Curfew period.
15. Where a prisoner's conduct on Home Detention Curfew licence is such that it appears that recall for breaches of both the conditions of that license and the so-called normal licence conditions would be warranted, the choice of which set of provisions should be used is given careful consideration because the recall provisions to which recourse may be had would result in different procedures, as I have set out. In practice, in such cases the views of the offender's Offender Manager within the Probation Service are usually sought as to the seriousness of the breach and its implications for the assessment of the risk that the offender is deemed to pose in the community. Where the breach is regarded as showing an increased level of risk, the offender is recalled for breach of one of the normal licence conditions using section 254.
16. In respect of the procedure under section 255, where the offender does make representations about recall, those will be referred with all relevant documentation to the HDC appeals team within the Ministry of Justice. That provides a route of appeal which is independent from officials in the PPCS responsible for the recall decision. The role of the appeals team is to consider the representations and to conduct an investigation to establish the facts of whether there has been a breach of the curfew conditions or not.
17. Where the breach (or alleged breach) involves the alleged tampering or damage to electronic monitoring equipment, the appeals team will usually retrieve the equipment and get it tested by an independent forensic examination, as indeed occurred in this case. The report from the examiner is shared with the offender in order to allow further representations to be made; again, as occurred in this case.
18. Having set out some of the background of the procedure and policy, I now turn to a number of authorities to which my attention has been drawn by the two parties in this claim. First of all, I was referred to R(Giles) v Parole Board [2004] 1 AC 1. That involved an issue as to the impact of Article 5(4) on a sentence imposed under section 2(2)(b) of the Criminal Justice Act 1991. The appellant in that case pleaded guilty to two offences against the person and was sentenced to consecutive terms of four and three years' imprisonment. In passing that sentence, the judge expressed the view that it was necessary to pass a custodial sentence which was longer than the sentence which would be commensurate with the seriousness of the offences in order to protect the public. The judge was exercising the power conferred by section 2(2)(b) of the 1991 Act.
19. The question of application of Article 5(4) eventually reached the House of Lords. Lord Bingham at paragraph 4 said this:

"The appellant does not challenge the imposition upon him of punitive sentences of imprisonment. Nor does he challenge in principle the extension of a sentence beyond the term necessary to punish an offender where such extension is properly directed towards protection of the public against serious harm caused by a violent or sexual offender. His contention, based on article 5(4), is in essence this: that once a defendant sentenced under section 2(2)(b) or 80(2)(b) has served the part of his sentence imposed purely for purposes of punishment (that is, the term "commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it") and is about to begin serving the balance of the sentence imposed for purposes of public protection ... he should enjoy the substantive and procedural rights held to be necessary where discretionary life sentence prisoners have served the punitive (or tariff) term imposed by the trial judge or, on appeal, by the Court of Appeal."

20. At paragraph 11 his Lordship continued:

"I conclude that the sentence passed on the appellant fell squarely within article 5(1) of the Convention and did not attract the operation of article 5(4). On the review of his case by the Parole Board he was entitled to the same rights as any other long-term prisoner serving a determinate sentence, but no other or greater rights. In considering his release at the half-way stage the Board was bound to apply the same criteria to him as to any other long-term prisoner serving a determinate sentence. The suggested analogy between prisoners sentenced under section 2(2)(b) or 80(2)(b) and discretionary life sentence prisoners is in my opinion false."

21. Then Lord Hope at paragraph 51 said this:

"It is plain from this summary that the basic rule which the European Court laid down in De Wilde, Ooms and Versyp v Belgium continues to apply. Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary."

22. Next I was referred to a Court of Appeal decision in R(Sim) v Parole Board [2003] EWHC 152 Admin; [2003] EWCA Civ 1845. That related to the question of a prisoner's release on licence where he had been sentenced to an extended sentence. The Secretary of State in that case recalled the claimant to prison during the licence period, and the question was whether that recall engaged Convention rights.
23. The Court of Appeal held that an extended sentence imposed under section 58 of the Crime and Disorder Act 1998 was a novel feature which differed in its characteristics from either an indeterminate or a determinate sentence. Furthermore, since a decision by the Executive under section 39 of the Criminal Justice Act 1991 to revoke an offender's licence and recall him to prison during the currency of the extension period, but after the term of imprisonment imposed by the court had expired, involved detention which had not been ordered by a court, that further imprisonment was not "detention ... after conviction by a competent court" for the purposes of Article 5(1)(a) of the Convention. Accordingly, when an offender was recalled to prison during the extension period, Article 5(4) required his detention to be supervised by a judicial body. It is important to observe that the Court of Appeal in that case distinguished a previous Court of Appeal authority, R(Smith) v Parole Board (No 2) [2004] 1 WLR 421, which has subsequently been overturned on appeal to the House of Lords.
24. Keene LJ at paragraph 35 said this:

"35. That factor has led the Strasbourg Court in cases like Weeks; Hussain v United Kingdom [1996] 22 EHRR 1; and Stafford to conclude that new issues may arise during such a period which mean that the continuing or fresh detention of the offender must be subject to continuing supervision as required by Article 5(4). Such judicial supervision will not be required when the original sentencing court has itself imposed a sentence of imprisonment for the whole period in question, even if that term of imprisonment includes a protective element, as in Giles. But if that is not the sentence imposed by that court, the Strasbourg jurisprudence will in my judgment require continuing judicial supervision.

36. In short, when an offender is detained during the extension period of a section 85 sentence, such detention must be subject to review by a judicial body. No court has ordered his detention during that period: prima facie the sentencing court took the view that he could be dealt with in the community during that period. This is the critical factor which distinguishes this situation from that considered in Giles and in Smith, in both of which the court was concerned with detention falling within the term of imprisonment imposed by a competent court. In cases of extended sentences under section 85, it is the executive which decides upon an offender's recall during the extension period, and because that detention has not been ordered by a court it must be supervised by a judicial body. Otherwise there is a danger of an arbitrary decision being made by the executive. As it happens, it is so supervised, because section 44A of the 1991 Act so provides through the mechanism of the Parole Board. Parliament was right to take the view that such judicial supervision of detention during that period was necessary. I conclude that Elias J was right in the conclusion which he reached on this issue."

In essence, the claimant submits that a similar situation pertains in the present circumstances.

25. Then I was referred to an important authority, R(West) v the Parole Board; R(Smith) v the Parole Board (No 2), which were conjoined appeals heard by the House of Lords and reported in [2005] 1 WLR 350. Again, that was a case which involved the recall to prison of determinate sentence prisoners released on licence. In one case, the claimant had been released on licence after serving half of a three-year sentence and was recalled on the basis of alleged breach of conditions. It was his contention that he was entitled to have an oral hearing of the Parole Board on the issue of recall.
26. The claimant in the second case had been released on licence after serving two thirds of a six and a half year sentence of imprisonment; again being recalled on the basis of alleged breach of conditions. He too sought judicial review of the Parole Board's decision on the ground that it had been taken without holding an oral hearing, contrary to Articles 5 and 6 of the Convention. The Court of Appeal dismissed his application. The House of Lords allowed the appeal.
27. Lord Bingham referred to Article 5(1), and after setting that out, at paragraph 36 says this:

"36. It seems to me plain that in cases such as the appellants' the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court. This view may have founded the European court's recent admissibility decision in Brown v United Kingdom (Application No 968/04) (unreported) 26 October 2004, p 6. The same result was reached in Ganusauskas v Lithuania (Application No 47922/99) (unreported) 7 September 1999, where no break was found in the causal link between the original conviction and the redetention. But the revocation decision must comply with article 5(4), to which I now turn."

28. Lord Slynn, at paragraphs 54 and 55, said this:

"54. In the absence of a specific challenge to the conviction, when the prisoner begins his sentence, there is clearly lawful detention by a competent court. Furthermore that sentence is subject to all the provisions of release on licence and revocation provided for by statute and the rules applicable to determinate sentence prisoners. My initial view was that there are not two formal orders for detention; it is a combined sentence and, in the subsequent decisions as to licence and revocation and recall, the Parole Board is giving effect to the initial sentencing of the trial judge. If that is right, recall from conditional release was itself empowered by the initial sentence of the court.

55. I have, however, been persuaded by Mr Fitzgerald that this is too restrictive an approach and that recall, even of someone who has only a conditional right to his freedom under licence "more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen" (Weeks v United Kingdom 10 EHRR 293, 307, para 40), is a new deprivation of liberty by detention. The prisoner is therefore entitled to take proceedings by which the lawfulness of that detention can be decided speedily by a court under article 5(4). Review by the Parole Board of the recall decision, however, if conducted in accordance with the fairness which the common law requires, is in my view a compliance with article 5(4) and therefore there is no breach of this article."

29. The case of Ganusauskas was a case which was decided by the European Court of Human Rights on 7 September 1999. It concerned a Lithuanian national who had been sentenced to a term of imprisonment for obtaining property by deception, but was released on conditional release because of model behaviour in prison. Subsequently, however, the prosecutor requested the court to suspend the execution of the order for conditional release, and the applicant in that case was arrested on the same evening.
30. The European Court noted that Article 5(4) only applied to proceedings in which the lawfulness of the detention is challenged. The necessary supervision of the lawfulness of detention after conviction by a competent court was in the present case, determined the court, incorporated at the outset in the applicant's original trial and in the appeal procedures against the conviction and sentence.
31. It was against that background that Collins J came to give his judgment in the case of Benson. There the claimant was recalled on 24 July, it being alleged that he was in breach of conditions imposed by his licence. The result of that is that he was unable to be released again on the PID system and must serve the balance of his sentence, which would take him to the time when he would be released. There, as in this case, the claimant asserted that he was entitled, in accordance with Article 5(4) of the Convention, to have an independent assessment of whether he should have been recalled, and the system that operates did not provide him with that independent consideration.
32. It is common ground before me that that case is on all fours with this one. Collins J went into the authorities, including the authority of Smith and West, and then at paragraphs 18 and 19 said this:

"18. It will be apparent, I think, from the various authorities that there has been a degree of difficulty in knowing precisely where the line is to be drawn as to the application of Article 5(4). But it is plain that there is consistent Strasbourg jurisprudence which establishes that, when a determinate sentence is imposed by a court, its lawfulness does not have to be reconsidered even though there has been a release and a recall during the period of that sentence.

19. There is a distinction between that situation and the situation where the prisoner remains in prison as a result of a decision essentially at the instance of the executive that it is not appropriate that he be released because he continues to be a danger. That part of his sentence, although formally imposed by the court, just as a life sentence is formally imposed by the court, does not have the same status as a determinate sentence and a decision to recall after release is not covered by the provisions of Article 5(1) and accordingly 5(4) will apply. By extension, perhaps, the same has been applied by the courts in this country to a situation following an automatic release on licence (automatic in the sense that it has to happen) but hitherto it has not been extended to the situation that exists in this case. In my judgment, having regard to the various authorities, it would be wrong for me to decide that Article 5(4) does apply in the situation that exists here. Accordingly, as it seems to me, the provisions of section 255(2) are not incompatible with the Convention. There is no right to have a consideration of the lawfulness of the detention since it is covered by the determinate sentence passed by the court. One can perhaps justify that by saying that it is simply the means whereby the sentence of the court is to be served. It may be in a closed prison. It may be in an open prison. It may equally be by means of a licence and tagging which itself involves a degree of restriction on liberty. Indeed, one has to note that there is a decision in relation to control orders whereby alleged terrorists have orders made, which involve tagging and curfew, and those can amount to deprivation of liberty within the meaning of Article 5 if the conditions are severe enough to justify it. That is, at present, a decision of the Court of Appeal, a decision which is being reconsidered by their Lordship's house but, as far as I am aware, no decision has yet been handed down. But that makes plain that this sort of licence involving tagging and curfew orders is capable of being regarded as a deprivation of liberty. It certainly is less than freedom, so far as the individual is concerned. In those circumstances, as it seems to me, it can properly be regarded as a manner in which the sentence is being served in the same way as, as I have said, open prison or closed prison. That may well be a way of justifying the distinction to be drawn between it and the situation where there has to be a release on licence and the licence cannot and does not contain such severe measures as are appropriate in release under section 246."

33. Finally, before I come to the decision of Black, I refer to the case of Mason v Secretary of State for Justice [2008] EWHC 1787 QB, where Cranston J considered the issue of the rights of a prisoner who was released on licence. Accordingly, that was not a recall case; it was a case in which the claimant complained of a delay of nearly four months before the Secretary of State exercised a discretion to release the claimant on licence.
34. At paragraph 28 Cranston J said this:

"28. In a bold submission Mr Southey said that I should depart from Benson [2007] EWHC 2055 (Admin). It will be recalled that in that decision Collins J concluded that Article 5(4) did not apply where a prisoner was recalled to prison for an alleged breach of Home Detention Curfew. I would be entitled to depart from Benson if satisfied that it was clearly wrong: R v HM Coroner for Greater Manchester ex p Tal [1985] QB 67, at 81B. In Mr Southey's submission the judgment of Collins J was plainly wrong. It was inconsistent with the judgment in Johnson since it essentially said that Article 5(4) only applied where a prisoner was serving a sentence of life imprisonment or had been recalled following automatic release. None of those situations was under consideration in Johnson. Even ignoring its consideration of Johnson, it was said that there were other flaws in Benson. For example there was a material error in its suggestion that release on Home Detention Curfew was excluded from Article 5(4) because it was a form of discretionary release. Moreover, Collins J's own comment that Article 5(4) applied where a prisoner remained in prison as a result of a decision essentially at the instance of the executive suggested Article 5(4) applied. Benson also needed to be considered in light of subsequent decisions, notably O'Connell and Black."

35. At paragraph 31, after referring to the Strasbourg jurisprudence and the case of De Wilde, Ooms and Versyp v Belgium (No 1) 1 EHRR 373, Cranston J said this:

"31. With determinate sentences, however, as far as the Strasbourg jurisprudence is concerned Article 5(4) has no application during the sentence, it being satisfied by the sentencing process, even though there is an expectation at some point of release on license and possible recall during the license period ...

32. ... In all there is no basis in the Strasbourg jurisprudence to support the claimant's case. In any event there is clear authority binding on me that while keeping pace with the Strasbourg jurisprudence I must not go beyond it: R (Al-Skeini) v Defence Secretary [2007] UKHL 26; [2008] 1 AC 153, [105] - [106]."

36. In paragraph 34 Cranston J refers to the Johnson case and the Black case, which had then been decided in the Court of Appeal. The claimant in the Black case of course succeeded in the Court of Appeal, but not in the House of Lords.
37. At paragraph 39, Cranston J's conclusions were as follows:

"39. The discretion to release and recall under Home Detention Curfew is reviewable on general public law principles, for example, that it has been exercised in an unreasonable manner in a public law sense or inconsistently with the policy. In my judgment, Article 5(4) of the European Convention of Human Rights does not require more. In particular the discretion to release and recall does not need to be exercised on the recommendation of a judicial body such as the Parole Board. There is no warrant for this in the authorities. The core right guaranteed by Article 5(4) is judicial supervision of the lawfulness of detention of persons deprived of their liberty. Home Detention Curfew operates during the part of a sentence when custody is compulsory, before the point at which a prisoner under the statutory provisions will be released or become eligible for release on the recommendation of the Parole Board. The review of the lawfulness of detention demanded by Article 5(4), at least up to that point, has already been conducted by the sentencing court. Abuse of power has been addressed at that point in the process."

38. So it was that the House of Lords in Black came to consider whether Article 5(4) applies to a decision whether a prisoner should be released early on licence. Lord Phillips dissented from the majority, but the other members of the House of Lords each gave views, and it is necessary, having regard to the detailed submissions which have been made before me by both parties, to make some detailed reference to the speeches in that case.
39. At paragraph 37 in the speech of Lord Rodger, he said this:

"37. My Lords, I have had the advantage of considering a draft of the speech to be delivered by my noble and learned friend, Lord Brown of Eaton-under-Heywood. I agree not only with his conclusion but with his reasoning. Since he deals fully with both the English and Strasbourg cases, it would be pointless for me to go over the same ground. But, as your Lordships are not unanimous, I shall explain shortly how I see the position in the light of those cases."

40. At paragraph 45, Lord Rodger said that the question came to be whether Article 5(4) gave 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 continued detention. Lord Rodger continued at paragraph 47 as follows:

"47. 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.

...

49. Since the lawfulness of Mr Black's detention was determined by the original sentencing courts, article 5(4) had no application at the half-way stage when the Secretary of State was considering whether to release him. There is accordingly no basis for declaring that section 35(1) of the 1991 Act is incompatible with article 5(4). The Secretary of State's appeal must be allowed."

41. Baroness Hale, for the reasons given by Lord Rodger and Lord Brown, with which she stated herself to be in entire agreement, also allowed the appeal.
42. Lord Carswell referred to the European decisions, including that of Ganusauskas, and at paragraph 58 went on as follows:

"58. I have referred to the anomaly constituted by the retention by the Secretary of State of the power to reject a recommendation for release made by the Parole Board. There appears to be no good reason for its retention and it may well be that the Secretary of State will now think it right to relinquish it. There is also strength in the argument that it is a fresh issue in the penal process, which is sufficient to break the link with the original sentence of imprisonment pronounced by the court. It does appear, however, from my consideration of the Strasbourg jurisprudence that the current of authority is against the respondent and in favour of the Secretary of State on this question. I do have some reservations, appreciating as I do the force of the considerations which prevailed with the Court of Appeal. On balance, however, I think that our courts should be slow to go beyond what the ECtHR has held and decide that the final decision on release cannot lawfully be left with the Secretary of State. For these reasons I would agree, though not without hesitation, that the appeal should be allowed and the respondent's application for judicial review should be dismissed."

43. I now turn to the speech of Lord Brown, which has been extensively referred to by both parties, and accordingly it is necessary for me to set out a number of passages from that speech:

"73. The central complaint made by West and Smith was that the Parole Board had failed to allow them an oral hearing when deciding whether or not to recommend them for re-release after their recall (any such recommendation by the Board being binding on the Secretary of State). In seeking to resist their appeals the Board naturally placed considerable reliance upon Strasbourg's rejection of Brown's case. The House nevertheless allowed the appeals, having regard both to the common law duty of procedural fairness and to article 5(4). Lord Bingham referred to Brown (and Ganusauskas) in that part of his opinion which rejected the appellant's case under article 5(1) but not in his discussion of the article 5(4) argument. Rather in that connection he made no mention of Brown but referred instead to the Strasbourg decisions in Van Droogenbroeck; Weeks; Thynne, Wilson and Gunnell; and E v Norway before concluding (at para 37):

"Convention jurisprudence establishes that the judicial review of the lawfulness of detention must be wide enough to bear on those conditions which, under the Convention, are essential for the lawful detention of a person in the situation of the particular detainee."

Plainly, however, that decision was reached in the very specific context of the recall to prison of prisoners released on licence for breach of their licence conditions. (In each case the appellant had in fact been released automatically after serving the requisite proportion of his sentence and thus, as Lord Bingham pointed out at para 30, had "a statutory right to be free". Although, however, Lord Bingham described this as "noteworthy", I do not myself understand the opinions as a whole to suggest that article 5(4) would call for any different conclusion in the case of those recalled after discretionary, rather than automatic, release on licence.)

74. 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 ECtHR 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. That said, however, there are passages in Lord Bingham's speech in West clearly unhelpful to Mr Owen's argument, emphasising as they do the essentially punitive purpose of a determinate sentence — see in particular para 22 ("the predominant purpose of the sentence will be punitive and the sentence which the court imposes will represent the period which the court considers that the defendant should spend in custody as punishment for the crime or crimes of which he has been convicted") and para 40 ("the primary purpose of [a determinate] sentence is punitive").

...

81. Cogently though these judgments are reasoned, and broadly sympathetic though I am to the conclusions they arrive at, I have finally come to regard them as mistaken. In the end they seem to me to involve widening the reach of article 5(4) beyond its proper limits, certainly beyond its hitherto recognised scope. Article 5(4) cannot be held to apply merely because it would be useful if it did because "it has a function to perform", "a clear purpose to be served" (O'Connell [2008] 1 WLR 979, para 14). There is suggested to be a risk of arbitrariness in the operation of the parole system if the Secretary of State can overrule the Parole Board on the question of risk. But the Secretary of State's decision is, of course, judicially reviewable and, if found arbitrary or irrational, it will be struck down. There was, indeed, an irrationality challenge in this very case but it failed before the judge and permission to appeal was refused in respect of it. There is nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision, notwithstanding that it involves rejecting another body's recommendation. In one sense it may be said to be putting the cart before the horse. And, as we said in Clift, it is indefensibly anomalous. But it is not contrary to article 5(4).

...

83. ... The essential contrast struck by the ECtHR 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 set out at para 67 above), 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.

...

85. Certainly nothing in the Strasbourg jurisprudence affords any support for Mr Owen's contention that the two categories should be assimilated and, even were I to conclude that the ECtHR might now be prepared, notwithstanding its earlier dicta and admissibility decisions on the point, to extend the reach of article 5(4) to encompass also determinate sentence prisoners once they become eligible for parole, I would feel bound, consistently with the approach dictated by R(Ullah) v Special Adjudicator [2004] 2 AC 323, 350, para 20 (and the many subsequent endorsements of that approach), to leave any such development to the ECtHR itself."

44. The claimant, therefore, submits that Lord Brown in the Black case makes it clear that the reasoning of the House of Lords in Smith and West was not based on the distinction drawn by Collins J in Benson. Mr Southey submits that it was held in Smith v West that Article 5(4) applies to certain recall cases, but the difficulty arising from that decision was as to the scope of that application. Mr Southey submits that that has now been clarified by Lord Brown in the Black case, who made it clear that there is no basis for distinction between automatic and discretionary release prisoners when considering the question of recall. The decision in Smith and West was, submits Mr Southey, distinguished in Black, and accordingly formed part of the ratio for deciding the latter case. He accepts that there is no reference in the conclusions of Lord Brown to the Smith v West decision. That, submits Mr Southey, is because Lord Brown had already dealt with it, and Lord Rodger and Baroness Hale agreed with that reasoning.
45. If Mr Southey is wrong, and that was not part of the reasoning, nevertheless he submits that Lord Brown's speech is highly persuasive. The reference in paragraph 74 to an issue as to whether a breach of a licence arises applies, submits Mr Southey, with even greater vigour to a decision under section 255 of the 2003 Act: for example, as in this case, as to whether an electronic tag has been interfered with deliberately by the offender. That, submits Mr Southey, becomes a new issue affecting the lawfulness of the decision, and that is so whether or not a prisoner has served sufficient of his sentence to give rise to automatic release.
46. Mr Southey accepts that, in the Black case, Lord Brown did not expressly consider the question of Home Detention Curfew. But the reasoning applies to that situation. The clearest indication of that, submits Mr Southey, is the common ground that the defendant in this case could have proceeded under either section 254 or 255 of the 2003 Act. It cannot be the case, submits Mr Southey, that a consequence of that decision is whether or not Article 5(4) is engaged. Mr Southey, making the submission, made it clear he was not for the purpose of this submission basing it upon a deliberate choice on the part of the defendant to avoid one procedure or another. If there were such a deliberate choice to avoid section 255, then it would clearly be amenable to judicial review.
47. Mr Southey also realistically accepted that, as a result of the decision of the Court of Appeal in R v Greater Manchester Coroner ex parte Tal and another [1985] 1 QB at page 67, he cannot submit that the case of Benson was simply wrongly decided. His submission rather is that, because of the clear reasoning of Lord Brown in the Black case, I should regard Benson as clearly wrong. If Article 5(4) does apply, then that must mean, submits Mr Southey, that section 255 and the procedure thereunder is non-compliant with those rights, and therefore a declaration should be granted.
48. On the other hand, counsel for the defendant, Ms Lieven QC, whilst accepting that there are passages in paragraph 73 and 74 of the speech of Lord Brown which appeared to be contrary to the defence case, submits that that was not part of the reasoning in the case, which concerned release and not recall. The submission was that Lord Rodger focused on the right to be set free under the automatic provisions, and that is why he agreed with Lord Brown. No other member of that court expressly dealt with those observations or supported them. There were references to the Ganusauskas case by their Lordships, but no indication that that was a wrong decision.
49. Ms Lieven further submits that at paragraph 81 of Lord Brown's speech it is clear that he did not intend to go beyond what he described as the hitherto recognised scope of Article 5(4). If that was what was intended by Lord Brown, then that should have been made clear. The ratio of the case is set out, submits the defendant, in paragraph 83. Whilst accepting that in the procedure under section 255 of the 2003 Act there may be factual issues, for example as to whether an electronic tag has been tampered with, such an issue is not fundamental to the application of the regime.
50. It is clear that there are two different consequences as to whether section 254 or 255 is used, and it is clear that, because of the consequences under section 254, which I have set out above, then the Parole Board must be involved and the requirements of that section must be met.
51. Having regard to the two contending submissions, I am not persuaded that it is clear from the speech of Lord Brown in the Black case that the decision of Collins J in Benson is clearly wrong. In my judgment, the claimant had no right to be free at the stage he was released. That was a matter of administrative discretion. His recall did not affect his right to be free at the end of the requisite period. There were issues of fact, but those issues, in my judgment, did not affect the lawfulness of the claimant's detention. That lawfulness had already been determined by the original sentencing court. The procedure under section 255 incorporates an appeal process in the manner I have described, and any decision would be amenable to judicial review on usual review grounds.
52. It does appear, as accepted on behalf of the defendant, that Lord Brown went some way further in paragraph 73 and 74 of his speech, but I am not persuaded that that was part of the reasoning of their Lordships' House in that case. In my judgment, it is clear from paragraph 81 that Lord Brown did not regard himself as going beyond what was the hitherto recognised scope. It seems to me that had he intended to do so, that would have been more than simply clarifying the application of the principle set out in Smith and West. Had Lord Brown wished to extend the hitherto recognised scope, then that might reasonably be expected to have been clearly stated in his conclusions, and so too would any clarification of the application of principle in Smith and West. It is not clear, in my judgment, that those particular observations were fully shared by the other members of the majority in the House.
53. I accept Mr Southey's submission that the speech of Lord Brown and the reasoning he adopts is highly persuasive, but in the end it is not sufficient, in my judgment, to justify a conclusion that the decision in Benson was clearly wrong, and I do not do so conclude. Accordingly, I am not persuaded that it is appropriate to grant a declaration of incompatibility of section 255 of the 2003 Act with Article 5(4) of the Convention.
54. MR SOUTHEY: My Lord, the first application I should make in those circumstances is for permission to appeal. Your Lordship, as I have understood the judgment, understandably placed significant weight on the judgment of Collins J in Benson, and the recognition on behalf of the claimant that ex parte Tal meant that your Lordship, to use a short-hand, did not have a clean sheet of paper when determining this case. Your Lordship also recognised that there was some force in the claimant's reliance upon the remarks of Lord Brown in Black. Clearly the Court of Appeal will not have the problem that your Lordship had, or the difficulty that your Lordship had, which was to determine the extent to which it was permissible to go behind Benson. The Court of Appeal will have, to use the short-hand I just used, a clean sheet of paper and will, in my submission, be able to look at what weight, if any, should be given to the remarks of Lord Brown which, as your Lordship has indicated, clearly supported the claimant's case, and were in the majority and were, at least on one reading, endorsed by other members of the Court of Appeal.
55. This is also an issue of some importance to both parties. Your Lordship has seen the statistics about the number of prisoners potentially affected by it. That is why this case was permitted to proceed after it had in one sense become academic from the claimant's point of view. In those circumstances, in my submission, recognising as I do that it is relatively unusual for a lower court to grant permission to appeal, this is one of the those occasions where, in my submission, it is entirely appropriate because there is a tension essentially between the first instance decision of Collins J and a subsequent decision, which he plainly did not have the advantage of, of the House of Lords, and that is an important issue affecting a number of cases, and as a result permission, in my submission, is appropriate.
56. HIS HONOUR JUDGE MILWYN JARMAN QC: The Court of Appeal has in other prisoners' rights cases indicated that if there has been a change of circumstances by the time the case reaches that court, they are reluctant to lay down a matter of principle on academic circumstances.
57. MR SOUTHEY: It depends upon the situation. Where it has done that, for example, has been -- which I suspect your Lordship may be referring to because it is a case that both your Lordship and I had a role in -- was situations where, for example, there has been a complaint about the failure to hold an oral hearing as a matter of fairness on the particular facts. Of course in this case the situation is not fact sensitive, which is why Collins J permitted it to proceed after release. The simple facts are ones that will appear in a wide range of cases because the only facts that are relevant to the claimant's argument are, firstly, the fact that he was released on Home Detention Curfew, and secondly the fact that he was recalled under section 255. It is not like those oral hearings cases where although principle may be important, ultimately the facts are highly relevant, and no two prisoners' cases will be identical. They may be closely similar, but they will not be identical.
58. The Court of Appeal has, for example -- I mean, the House of Lords from memory having been involved in that case, for example in Hindawi, which your Lordship may well be aware of which is in the bundle as Clift, although I know it as Hindawi because that is my client. Certainly in one of those cases from memory the prisoner had been -- Headley I think it was -- the prisoner had been released by the time the House of Lords looked at the case, but because it was an issue as to the application of Article 5(4) to a particular statutory scheme and did not depend on the facts of the case, there was absolutely no suggestion that the case should not be considered, and indeed the House of Lords did consider it and found an incompatibility. The analogy with Headley is far more apposite, in my submission, than the -- I cannot remember whether it was Wilkinson or another of the oral hearing cases that your Lordship is making reference to, but I know the case that your Lordship is making reference to. So, in my submission, one of the reasons for why it is appropriate is of course, if your Lordship does not -- what would have to happen for the Court of Appeal to look at it would be there would have to be a prisoner who brings a case for judicial review within his Home Detention Curfew period, concedes essentially that he has to lose in the High Court, and then appeals in time to the Court of Appeal, all of which has to be held within a maximum of 135 days and conceivably significantly less, at additional public expense because it will obviously be far more expensive. So, my Lord, the analogy that your Lordship has drawn, in my submission, is not appropriate. But, my Lord, your Lordship heard my learned friend's submissions this morning, which --
59. MS LIEVEN: My Lord, it may be of note for your Lordship to note that we do not oppose permission to appeal here, and indeed the point my learned friend has made, in my submission, is an important one. It is virtually inconceivable that a case on this issue will get to the Court of Appeal in time for it to be a live issue.
60. HIS HONOUR JUDGE MILWYN JARMAN QC: When you say you do not object, are you able or willing to indicate the degree of any support that you would give it? Is this something, in other words, that the Secretary of State would welcome clarification on?
61. MS LIEVEN: Can I take instructions on that?
62. HIS HONOUR JUDGE MILWYN JARMAN QC: Yes. (Pause)
63. MS LIEVEN: I do not think I have instructions to go so far as to say we would positively welcome assistance from the Court of Appeal, but what I do have instructions to say is that this is a situation where plainly there are authorities pulling in different directions, and plainly, because I accepted as much in my submissions, Lord Brown's comments do not support my case. So there is a question over what various members of the House of Lords meant in Black, but I do not have instructions to go so far as to say that the Secretary of State positively wants the matter to go to the Court of Appeal. I hope that is of some assistance.
64. HIS HONOUR JUDGE MILWYN JARMAN QC: Thank you very much. On that basis I will give you permission, Mr Southey.
65. MR SOUTHEY: Thank you, my Lord. The other issue I would seek an order on is costs, and what the claimant would obviously seek is the assessment of his publicly funded costs for the purposes of the Legal Services Commission.
66. HIS HONOUR JUDGE MILWYN JARMAN QC: Yes.
67. MS LIEVEN: Two issues, my Lord: first of all on costs, we clearly do not dispute Legal Services assessment. I do ask for an order against the claimant, but not to be enforced without leave of the court. I am afraid we could not remember the precise words of the normal order in those circumstances. I think there is something about it having to come back to the court.
68. MR SOUTHEY: I can assist because the wording has changed.
69. HIS HONOUR JUDGE MILWYN JARMAN QC: It changed some time ago, I think.
70. MS LIEVEN: I freely accept I am a little out of date on this one.
71. MR SOUTHEY: It is: "The claimant pay the respondent's reasonable costs in accordance with section 11 of the Access to Justice Act" is now the language, because section 11 was the provision that transferred responsibility for enforcement from this court directly to the costs judge.
72. HIS HONOUR JUDGE MILWYN JARMAN QC: Is that in principle opposed, Mr Southey?
73. MR SOUTHEY: I think it would be very difficult for me to oppose it.
74. MS LIEVEN: My Lord, there is one other matter. In your Lordship's judgment, when your Lordship came to introduce the case of Black, I am sure it was a slip, but I noted your Lordship saying: "The House of Lords came to consider a situation where the prisoner had been released on licence", and it may be worth your Lordship just checking the transcript because of course on the facts of Black that is wrong. Nothing followed from that in your Lordship's reasoning, but it would be helpful to have the transcript looked at.
75. HIS HONOUR JUDGE MILWYN JARMAN QC: Thank you very much.
76. MS LIEVEN: I am very grateful, my Lord.
77. HIS HONOUR JUDGE MILWYN JARMAN QC: Thank you both very much for your helpful and interesting submissions.