Neutral Citation Number: [2017] EWHC 729 (Admin)
Case No: CO/5075/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 07/04/2017
Before :
MR JUSTICE TURNER
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Between :
The Queen (on the application of Shimei Youngsam) / Claimant- and -
The Parole Board / Defendant
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Nick Armstrong (instructed by Bhatt Murphy Solicitors) for the Claimant
Tim Buley (instructed by The Government Legal Department) for the Defendant
Hearing dates: 7th March 2017
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Approved Judgment
Judgment Approved by the court for handing down. / Youngsam v Parole BoardMr Justice Turner :
Judgment Approved by the court for handing down. / Youngsam v Parole BoardINTRODUCTION
1. This case is about the rights, both under the European Convention and the common law, of offenders on parole who have been recalled to prison following alleged breaches of their licences. It also involves a consideration of the scope of the doctrine of precedent and, in particular, the determination of what part of the decision of a court can properly be considered to be the ratio decidendi.
BACKGROUND
2. On 18 January 2002, the claimant was convicted of a gang-related attempted murder by shooting. His instructions had been to lure the intended victim to her death at the hands of a gunman. The plan went awry when the gunman missed his target and accidentally shot himself. The claimant was sentenced to 18 years imprisonment for his part in this botched execution attempt. On 28 March 2013, he was released on parole licence but was subsequently recalled on the ground that, in breach of the terms of his licence, he had been found to be in possession of a controlled drug, namely, cannabis.
3. Following his re-release, the claimant was recalled again as a result of an incident on 27 May 2015 which occurred in Brent during the course of which he was shot in the leg. It had been a condition of his licence not to enter Brent which had been the scene of his earlier crime. He now complains that following his recall there were untoward delays before the matter of his further release was considered by the Parole Board at an oral hearing.
4. He contends that these delays were attributable to defaults on the part of the Parole Board in consequence of which his rights under Article 5 of the ECHR and under the common law have been breached. On this issue he proceeds with permission by consent following the grant of permission made by the single judge in the linked case of Nelson (CO/1156/2016). He argues further that the substantive decision of the Parole Board, which was not to re-release him, is flawed and is thus susceptible to judicial review. On this issue the matter proceeds by way of a rolled up hearing. I propose to deal with each of these matters in turn.
ARTICLE 5
5. In so far as is material, Article 5 ECHR provides:
“Article 5 – Right to liberty and security
1. 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…
4. 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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”
6. The question, therefore, arises as to whether or not the claimant was, during the period of alleged procedural delay, the subject of “lawful detention…after conviction by a competent court”. If so, then Article 5(4) does not apply and this head of claim fails in limine. If not, the Court can go on to consider the substantive merits of the allegation of breach.
7. Unhappily, there is a surfeit of authority on the point.
The Statutory Framework
8. It has long been a feature of our criminal justice system that, usually, when someone is sentenced to a period of imprisonment the reality is that he emerges from custody significantly earlier than if the length of his sentence were to be taken at face value. Under such arrangements, the status under the ECHR of offenders who have been released from custody within the determinate period of imprisonment set by the court has proved to be controversial. Are they, after release, still subject to lawful detention after conviction by a competent court in which case they are not entitled to the protection of Article 5(4) or, alternatively, has the fact of earlier release taken them outside the scope of this exception to the application of Article 5(4)?
9. The issue is made more complicated by the fact that the statutory circumstances under which prisoners may be released before the expiry of their determinate sentences are, and have been historically, many and various. Furthermore, there are categories of sentence in which the date of release is, in whole or in part, indeterminate from the outset.
10. This has given rise to the practical difficulty that nearly every new relevant change in the regime governing the release of prisoners has attracted a fresh dispute as to the applicability of Article 5(4) thereto. It may be observed, in passing, that few judges have been heard to complain that changes to the statutory provisions relating to sentencing have, over recent years, been too infrequent.
11. It is therefore necessary to look in a little greater detail at the statutory provisions which presently underlie the release of prisoners before the expiry of the period handed down by the sentencing judge in so far as they apply to the instant case.
12. Section 244 Criminal Justice Act 2003 provides that “as soon as a fixed-term prisoner…has served the requisite custodial period…it is the duty of the Secretary of State to release him on licence…”
13. Section 254 empowers the Secretary of State to revoke a prisoner’s licence. However, the prisoner must be informed of his right to make representations about his recall and, if he chooses to do so, the matter must be referred to the Parole Board. In the claimant’s case, this procedure was duly followed but he complains that there were undue delays before his representations were considered by the Board at an oral hearing.
Case Law
14. The scope of the application of Article 5(4) to circumstances in which a prisoner has been recalled to custody were recently considered by the Supreme Court in R(Whiston) v Secretary of State for Justice [2015] AC 176. In that case, the claimant had been released even before half of his term of imprisonment had been served pursuant to the home detention curfew scheme. However, he had subsequently been recalled on the ground that his whereabouts could no longer be monitored at the place specified in the curfew condition of his licence. In contrast to the position in the instant case, the statutory framework provided the claimant with no power to seek a review of his recall. Accordingly, he raised a challenge under Article 5(4).
15. The Court unanimously concluded that Article 5(4) did not apply to the particular circumstances of that case. Furthermore, Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Hughes agreed, went on to formulate a broader principle to the effect 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.
16. Thus broadly stated, the principle would clearly apply to the circumstances of the instant case and result in the swift despatch of the claimant’s Article 5(4) claim. However, the claimant contends that the ratio of the decision in Whiston was limited to the narrow point that recall under the detention curfew scheme did not engage Article 5(4) and that, in so far as it went beyond this, the broader statement of principle was merely obiter and thus not binding on this court.
17. The claimant is emboldened in developing this submission by the observations of Baroness Hale at paragraphs 58 and 59 of her (partly) dissenting judgment in Whiston:
“58 In this case, Mr Whiston was still serving the period of imprisonment which resulted from the sentence imposed on him by the court: it is called “the requisite custodial period”. He was not yet entitled to release. Discretionary release subject [to] a home detention curfew enforced by electronic monitoring may or may not be regarded as a continued deprivation of liberty, depending on the length of the curfew, but it is very close to it. The prisoner may be recalled for the purely practical reason that it is not possible to monitor him at his address, which is nothing to do with whether he still constitutes a risk. It is the original sentence which means that he is still a prisoner.
59 Hence it seems to me that our domestic law, which gives the Parole Board the power to decide on 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 5.4 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. I comfort myself that the views to the contrary expressed in Lord Neuberger PSC's judgment are, strictly speaking, obiter dicta.”
18. The claimant further reinforces this point with reference to the fact that Lord Neuberger makes express reference to Baroness Hale’s judgment within his own judgment without contradicting her suggestion that his statement of broader principle was obiter.
19. The defendant counters this argument with the assertion that Baroness Hale’s observation as to the obiter status of the broad principle endorsed by the majority is wrong and is not binding on this Court because it is, in itself, obiter.
What is the ratio of Whiston?
20. Much academic learning has been devoted to the topic of distilling from any given judgment that part of it which forms the ratio of the decision. Perhaps predictably, the issue has been much less frequently analysed in decisions of the courts themselves. A detailed review of the territory is to be found in Chapter 2 of Precedent in English Law Cross and Harris 4th Edition. The overall picture is of a broad spectrum of views.
21. At one end of that spectrum is to be found the approach of Lord Halsbury in Quinn v Leatham [1901] AC 459 at 506:
“A case is only authority for what it actually decides.”
Taken literally, such an analysis would limit the scope of the ratio of any given case to the material facts upon which it was decided thus excluding from consideration as part of the ratio any broader principles forming part of the reasoning of the court.
22. In contrast is the view of Devlin J (as he then was) as expressed in Behrens v Bartram Mill Circus [1957] 2 QB 1 and summarised thus in Cross and Harris at page 58:
“…the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent.”
23. Taking a middle course in R(Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] Q.B. 955 Buxton LJ observed at para 17:
“Cases as such do not bind; their rationes decidendi do. While there has been much academic discussion of the proper way of determining the ratio of a case, we find the clearest and most persuasive guidance, at least in a case such as the present where one is dealing with a single judgment, to be that of Professor Cross in Cross & Harris, Precedent in English Law, 4th ed (1991), p 72: "The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him.””
24. In the circumstances of this case, I am satisfied that the approach of Buxton LJ in Kadhim is the appropriate one allowing as it does a degree of latitude as to how the scope of the ratio is demarcated but requiring the application of the rule of law thus defined to be a necessary step towards the conclusion reached in deciding the case.
25. In order to decide the appeal before the Supreme Court, it was not necessary for Lord Neuberger in Whiston to go further than to find that recall within the home detention curfew scheme fell outside the scope of Article 5(4). He did not have to go so far as to broaden the basis of his analysis so as to cover the legally distinct status of prisoners released as of statutory right. Indeed, he neither expressly nor impliedly treated such a broadening as being a necessary step in reaching his conclusion. I would thus respectfully agree with the observation of Baroness Hale that, to the extent by which his analysis went beyond the scope of the statutory framework with which the appeal was directly concerned, the remarks of Lord Neuberger were, as she put it, “strictly speaking” obiter dicta.