Hirst v Secretary of State for the Home Department & Anor

In February 1980, following an attack with an axe on his landlady, John Hirst (the appellant) was convicted of manslaughter. He represented a very serious long-term public danger, and he was sentenced to life imprisonment.

In April 2004 a Discretionary Lifer Panel recommended the appellant’s release on life licence. This took place in May. On 2nd August, on the further recommendation of the Parole Board, and in accordance with the statutory regime provided by section 32 of the Crime (Sentences) Act 1997 (the 1997 Act), his licence was revoked. He was recalled to prison at HMP Hull on 3^rd August.

On his recall, the appellant was supplied with the appropriate “recall dossier”. He indicated that he wished to make representations to the Board at an oral hearing against his recall at an oral hearing of the Board. On 26th August he was given the reasons for his recall, and on 3rd September the Lifer Review and Recall Section at the Home Office referred the matter to the Board. An oral hearing was fixed for 9th November. On 16th November, notwithstanding that the Board found that the combination of events which had taken place during the appellant’s period on licence gave rise to “serious concerns” about the risk he represented, and that his recall was “fully justified”, his release under section 32(5) of the 1997 Act was ordered.

The appellant challenged a number of different aspects of his recall to custody. On 21st June 2005 Crane J upheld two of his complaints, first, that contrary to article 5 (2) of the European Convention on Human Rights (ECHR) there was impermissible delay in the process by which the appellant was informed of the reasons for his recall, and second, that there was further such delay, contrary to article 5 (4) of the ECHR, in the provision of the appropriate recall dossier. He concluded that the delay in providing the appellant with the reasons for his recall was sufficiently satisfied by a declaration to that effect. However, the delay in providing the appellant with the dossier required an award of £1,500 compensation.

Crane J dismissed the claim that there was an impermissible delay in the Parole Board’s processes between 3rd September, when the case was referred to it, and 9th November, when the oral hearing took place. Finally, he rejected the appellant’s primary challenge, that the entire statutory scheme for recall was incompatible with article 5 of the ECHR. The appellant’s contention is that this conclusion was wrong in law. This gives rise to the stark issue in this appeal.

Section 32 of the 1997 Act deals with the recall to prison of life sentence prisoners who have been released on licence. It provides:

“(1)

If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this Chapter, the Secretary of State may revoke his licence and recall him to prison.

(2)

The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

(3)

A life prisoner recalled to prison under subsection (1) or (2) above –

(a)

may make representations in writing with respect to his recall; and

(b)

on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4)

The Secretary of State shall refer to the Parole Board –

(a)

the case of a life prisoner recalled under subsection (1) above who makes representations under subsection (3) above; and

(b)

the case of a life prisoner recalled under subsection (2) above.

(5)

Where on a reference under subsection (4) above the Parole Board directs the immediate release on licence under this section of the life prisoner, the Secretary of State shall give effect to the direction.

(6)

On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”

(Subsection 5 was substituted by the Criminal Justice Act 2003, but this aspect of the statutory scheme has no relevance to the present appeal)

Article 5 of the European Convention of Human Rights provides:

“(1)

Everyone has the right to liberty and security of the 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;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition;

(2)

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3)

Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(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. ”

The forensic attack on section 32 proceeds on the basis that it empowers the Secretary of State to effect the immediate return of a life sentence prisoner to prison, by revoking his licence, either on his own initiative (s 32(2)) or on the basis of a recommendation to that effect by the Parole Board (s32(1)). Even when made on such a recommendation, as the Parole Board is not at that stage acting in a judicial capacity, the decision is made by the executive. In the result, the scheme provides for a return to custody upon an arbitrary decision by the executive, without the normal safeguards built in to the criminal justice process. In the written grounds of appeal, this process was described as “systematic executive incarceration”, and it was therefore incompatible with article 5 of the ECHR.

Ms Krause went on to submit that once her client was released on licence, the link between his conviction for manslaughter and any possible recall was broken. If he was to be recalled, he was entitled to the safeguard of a system whereby some kind of initial or preliminary judicial determination should take place to decide whether the recall should or should not take effect pending the final determination. In short, therefore, a process similar to bail pending trial was required, akin to that available in appropriate cases to citizens arrested or charged with criminal offences. No provision is made for such a safeguard in section 32 or elsewhere.

In the light of this challenge to the statutory scheme we sought further information about the arrangements which lead to a recommendation for licence revocation and recall. We were told that for the purposes of considering its recommendation, the Board is presented with the pre-release parole dossier, together with a report from the Probation Service (now part of the National Offender Management Service) which explains the reasons for believing that the prisoner is in breach of his licence conditions. The assumption, of course, is that those responsible for the report will act in good faith, and there is, as far as we are aware, nothing to suggest that they do not do so. On recall, the remaining safeguards in section 32 then operate.

The starting point in the analysis is obvious, but perhaps bears repetition. Section 32 addresses the recall to prison of an offender sentenced to discretionary life imprisonment. It is not even remotely related to the process by which an unconvicted citizen may be arrested and detained. In Weeks v United Kingdom (1987) 10 EHRR 293, the European Court of Human Rights rejected the submission that the link between Weeks’ conviction and his article 5 entitlements was broken when he was released. The court explained:

“…it was inherent in Mr Weeks’ life sentence that whether he was inside or outside prison, his liberty was at the discretion of the executive for the rest of his life (subject to the controls subsequently introduced by the 1967 Act, notably the Parole Board)”

The release of an individual made subject to a discretionary life sentence on the basis of dangerousness involves an element of risk. Before directing his release the Parole Board must be satisfied that the risk can safely be managed in the community. His release, if appropriate, should be made subject to conditions which will provide for the safety of the public. This requires careful management and control of the offender, to ensure that any form of risk to others is either anticipated, or minimised. That said however, it is now plainly understood that a post tariff life sentence prisoner released on licence does not automatically, or by definition, fall outside the protective ambit of, or that he is outlawed from, the entitlements in article 5.

In Weeks the court recorded:

“…the Convention presupposes not only conformity with domestic law but also, as confirmed by article 18 conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of article 5 (1). Furthermore, the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time; in addition the “detention” must result from, “follow and depend upon” or occur “by virtue of” the “conviction”. In short there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue”.

In Stafford v United Kingdom (2002) 35 EHRR 32, the European Court returned to Weeks, recalling that the “discretionary life sentence imposed on the applicant was an indeterminate sentence expressly based on considerations of his dangerousness to society, factors which were susceptible by their very nature to change with the passage of time. On that basis, his recall, in the light of concerns about his unstable, disturbed and aggressive behaviour, could not be regarded as arbitrary or unreasonable in terms of the objectives of the sentence imposed on him, and there was sufficient connection for the purposes of article 5(1)(a) between his conviction in 1966 and recall to prison in 1977”.

It is submitted on behalf of the Secretary of State that the language used in Stafford to describe the effect of the decision in Weeks, could aptly be applied to the present appeal. The fresh deprivation of liberty which Weeks underwent following the revocation of his licence was found not to constitute a breach of article 5. Notwithstanding his release therefore, the fact of his original conviction remained relevant and the necessary causal connection between the conviction and his recall to custody was sufficiently established.

Stafford provides a further illustration of the principle, but producing a contrary result. Stafford was convicted of murder in 1967 and sentenced to life imprisonment. He was released on licence in 1979, but when he left the United Kingdom in breach of a licence condition, it was revoked. On his return in 1989 he was detained, and fined for being in possession of a false passport. However, as his licence had already been revoked, he was detained in custody. He was released, on the recommendation of the Parole Board, in March 1991. In July 1994 he was convicted of conspiracy to forge travellers’ cheques and passports and sentenced to six years’ imprisonment. His licence was revoked. He would have been released from prison on the expiry of the sentence imposed for conspiracy in 1996/7, and his release on licence was recommended by the Parole Board. The recommendation was rejected. Stafford was detained in custody, not on the basis of a perceived risk that he would commit further violent offences, but because non violent, imprisonable offences might be committed by him.

Stafford’s complaint that his continued detention after the expiry of his sentence for conspiracy was arbitrary was upheld. It was unrelated to the grounds which had led to the imposition of the life sentence. Stafford’s release in 1979, showed that the punitive element of the sentence for murder was exhausted. The subsequent conviction for an offence of dishonesty could not justify his continued detention under the original mandatory life sentence. Nor

“……in contrast to the recall of the applicant in Weeks was the continued detention of the present applicant justified by the Secretary of State on grounds of mental instability and dangerousness to the public from the risk of further violence. The Secretary of State expressly relied on the risk of non violent offending by the applicant. The Court finds no sufficient causal connection, as required by the notion of lawfulness in article 5(1)(a) of the Convention, between the possible commission of other non violent offences and the original sentence for murder in 1967…There was no power under domestic law to impose indefinite detention of him to prevent future non-violent offending…The Court cannot accept that a decision-making power by the executive to detain the applicant on the basis of perceived fears of future non-violent criminal conduct unrelated to his original murder conviction accords with the spirit of the Convention, with its emphasis on the rule of law and protection from arbitrariness”.

The remaining matters of complaint in Stafford are not relevant to the present appeal.

The decision in Weeks, and the reasoning in both Weeks and Stafford, and indeed the more recent decision of the European Court in Waite v United Kingdom App No. 5323 6/99 (10th Dec O2) demonstrate that, provided the circumstances under which the original sentence was imposed are sufficiently reflected in those which pertain at the time when the recall order is made, the recall of a prisoner subject to a discretionary life sentence does not contravene article 5(1)(a). The recall and consequent detention follow a “conviction by a competent court”. If they are justified, then they do not have to be justified again on the basis of any of the other provisions in article 5.

In our judgment this appellant’s recall was justified in law by the link between the discretionary sentence of life imprisonment imposed following his conviction for manslaughter and his behaviour during the short period while he was living in the community on licence. This gave rise to realistic concerns for public safety. These considerations underpin the statutory scheme in section 32, which, no doubt with the decisions of the European Court in mind, was designed to protect the public from the risk of harm consistently with the entitlements provided for the appellant by article 5. Far from creating hesitation with the legitimacy of such processes, the jurisprudence of the European Court endorses them.

The creation of an additional process in the scheme as advocated by Ms Krause – in effect, an immediate hearing to investigate the material on which the recall order was based, and to examine whether any further and fuller investigation into it should take place with the defendant in custody, or on bail and generally at large subject to further conditions - in the context of a perceived risk of danger to public safety is unrealistic. In the public interest, and in the defendant’s interest, the process to achieve a final determination into the validity of the preliminary view formed either by the Secretary of State or the Parole Board should be completed as quickly as possible. In this context the preliminary view that recall is appropriate has already been formed. Without it, the recall order should not be made. It is difficult to conceive of a process consistent with public safety which could enable a recall order to take effect while the defendant remains at large. That would not be a recall at all. It would be an inquiry into the question of whether there should be a recall. And, almost by definition, to allow such a defendant his liberty subject to conditions would in effect amount to a decision to release him subject to the very terms of licence which he appeared to have disregarded. As Ms Krause readily accepted, nothing in the decisions of the European Court suggests that such a preliminary hearing is necessary, or indeed was ever in contemplation. Provided the necessary “causal connection” exists, the essential requirement is that the remaining parts of the process take place as rapidly as possible, consistent with doing justice to all the relevant elements of the individual case.

As her final submission Ms Krause sought to derive support from the decision of this court in R (Noorkoiv) v Secretary of State for the Home Department (2002) 1 WLR 3284, and subsequent decisions, to the same effect. However, Noorkoiv was concerned with a different problem to the one which arises in the present appeal. It addressed the arrangements which led to the continued detention of a prisoner subject to an automatic life sentence after the expiry of the penal or tariff element of his sentence. The system for his release should have been designed to provide for the necessary assessment to be made before rather than after the expiry of the tariff period, or very rapidly indeed afterwards. This process engaged not article 5(1)(a), but article 5(4). To the extent that Noorkoiv emphasised that continued detention in custody must be justified, it has a continuing resonance in cases like this. It does not, however, support Ms Krause’s essential submission that there should be some form of preliminary inquiry into the recall order immediately the recall takes place nor that, in its absence, the statutory scheme is incompatible with the appellant’s entitlement under article 5. The same difficulty undermined the submission which sought to link the requirement for a “prompt” hearing under article 5(3), in relation to arrest or detention when article 5(1)(c) was engaged, and the further requirement for a “speedy” hearing under article 5(4) which applies in any circumstances where an individual is deprived of his liberty.

It is, of course, necessary to emphasise that argument directed to the alleged “incompatibility” of section 32 with article 5 is quite distinct from any argument whether, in the particular circumstances of an individual case, there was or may have been a contravention of any other of the appellant’s Convention rights. However, the fact that breaches may occur, or that the statutory scheme may not always operate as it should, does not render the scheme as a whole incompatible with article 5. Indeed two such breaches which had taken place in this appellant’s case were identified, and he was provided with appropriate remedies.

In our judgement, in agreement with Crane J, the statutory scheme in section 32 of the 1997 Act is compatible with article 5 of the ECHR. Accordingly this appeal is dismissed.