R (on the application of Whiston) [2014] UKSC 39

Whiston was released early on home detention curfew before reaching the automatic release point of his 18-month robbery sentence. His licence was revoked and he was recalled without judicial review. The Supreme Court held that article 5(4) ECHR was not engaged during a determinate sentence.

Facts

The appellant, Stuart Whiston, was sentenced on 5 October 2010 to 18 months’ imprisonment for robbery. He was entitled to automatic release on licence on 5 July 2011, at the halfway point of his sentence (the ‘requisite custodial period’). On 21 February 2011, he was released early on licence under a home detention curfew (‘HDC’) pursuant to section 246 of the Criminal Justice Act 2003. On 7 April 2011, the Secretary of State revoked his licence under section 255 of the 2003 Act on the basis that his whereabouts could no longer be electronically monitored, and recalled him to prison. Unlike recall under section 254, recall under section 255 is not subject to review by the Parole Board or any other judicial body; the prisoner is entitled only to reasons and the opportunity to make representations to the Secretary of State.

Issues

The central issue was whether a person released on HDC and then recalled to prison under section 255 of the 2003 Act, without any right of judicial review of the recall, has rights engaged under article 5(4) of the European Convention on Human Rights. More broadly, the appeal raised the question of how far a person still serving a sentence imposed by a court can invoke article 5(4).

Arguments

Appellant

Mr Whiston contended that release on licence restored his liberty, such that his subsequent recall constituted a fresh deprivation of liberty. Because that recall was determined by the Secretary of State and not reviewable by any court, it infringed article 5(4). He relied particularly on the House of Lords decision in R (West) v Parole Board [2005] 1 WLR 350 and the obiter observations of Lord Brown in R (Black) v Secretary of State for Justice [2009] 1 AC 949.

Respondent

The Secretary of State argued that where a determinate sentence has been lawfully imposed by a competent court, recall to prison during the currency of that sentence, particularly during the requisite custodial period, does not engage article 5(4), because the requirements of that article are satisfied by the original sentence. The Secretary of State relied on the Strasbourg jurisprudence, in particular De Wilde, Ganusauskas and Brown.

Judgment

The Supreme Court unanimously dismissed the appeal.

Lord Neuberger (with whom Lord Kerr, Lord Carnwath and Lord Hughes agreed)

Lord Neuberger began with the Strasbourg jurisprudence. In De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373, the court held that where detention is ordered by a court at the close of judicial proceedings, the supervision required by article 5(4) is incorporated into that decision. This was reinforced by the admissibility decisions in Ganusauskas v Lithuania and Brown v United Kingdom, both of which rejected article 5(4) complaints arising from recall during a determinate sentence, on the basis that the review of the lawfulness of detention was incorporated in the original trial and sentence.

Turning to domestic authority, Lord Neuberger noted that in R (Giles) v Parole Board [2004] 1 AC 1, the House of Lords, and in particular Lord Hope, had confirmed the distinction between detention whose length is embodied in the sentence of the court (where article 5(4) is satisfied at the outset) and cases where release decisions have passed to the executive (which may require periodic judicial review).

Lord Neuberger considered the decision in West to be unsatisfactory as regards article 5(4): the relevant Strasbourg cases had been cited but not followed; Giles had not been considered; the applicability of article 5(4) was assumed rather than reasoned; and Lord Slynn’s reliance on Weeks v United Kingdom, an indeterminate sentence case, was misplaced. In Black, the position had become ‘yet murkier’, with different Law Lords taking inconsistent approaches.

Lord Neuberger concluded that (i) the decision in West was per incuriam so far as it held or assumed that article 5(4) was engaged, and (ii) Lord Brown’s obiter dictum in Black at paragraph 74 was wrong insofar as it suggested that UK law differed from the Strasbourg jurisprudence as summarised by Lord Hope in Giles. The common law was well able to afford appropriate protection to persons in Mr Whiston’s position without recourse to article 5(4).

Lady Hale

Lady Hale agreed that the appeal should be dismissed but sounded a note of caution. She drew a principled distinction between determinate prisoners recalled after the point of mandatory release on licence, and those recalled from discretionary early release (such as HDC) before that point. In her view, once a prisoner has passed the point of mandatory release, the basis for any recall is the risk of reoffending rather than the original sentence, and article 5(4) should apply. She considered West correctly decided on this basis and regarded the majority’s contrary observations as strictly obiter.

Implications

The decision confirms that, in accordance with the Strasbourg jurisprudence, article 5(4) is not engaged where a prisoner serving a determinate sentence is recalled to prison during the currency of that sentence following release on HDC under section 246 of the 2003 Act. The lawfulness of detention throughout the sentence period is treated as satisfied by the original sentence imposed by the sentencing court.

The judgment is significant for its explicit reappraisal of the House of Lords’ treatment of article 5(4) in West, which the Supreme Court held to have been per incuriam on that point, and its rejection of Lord Brown’s obiter suggestion in Black that domestic law extended further than Strasbourg jurisprudence required. However, the actual result in West, which rested primarily on common law fairness, is unaffected.

The judgment leaves open, in light of Lady Hale’s reservations, whether article 5(4) may nonetheless apply to recall after mandatory release on licence, as distinct from recall from discretionary early release. Lord Neuberger acknowledged that the Strasbourg court may wish to reconsider its jurisprudence in the future.

Practically, the decision matters to prisoners subject to HDC and to those advising them: challenges to section 255 recall must proceed via domestic common law remedies such as judicial review and principles of procedural fairness, rather than by invoking article 5(4). The judgment also illustrates the Supreme Court’s willingness, in appropriate circumstances, to identify earlier House of Lords authority as per incuriam in order to align domestic law with clear Strasbourg jurisprudence.

Verdict: The appeal was dismissed. Article 5(4) of the European Convention on Human Rights is not engaged where a prisoner serving a determinate sentence is recalled to prison under section 255 of the Criminal Justice Act 2003 during the requisite custodial period following release on home detention curfew.

Source: R (on the application of Whiston) [2014] UKSC 39