Mason v Ministry of Justice

Concentrating on the core of a right is essential to an understanding of its application in new contexts. The core of the right contained in Article 5(4) of the European Convention on Human Rights is judicial supervision of the lawfulness of detention of persons deprived of their liberty. The purpose is to curb abuses of power and to make accountable those by whom persons are detained. As a preliminary issue in this action my task is to decide how Article 5(4) applies in the context of Home Detention Curfew. Home Detention Curfew is a scheme under which prisoners may be released up to 135 days prior to their automatic release date, but subject to a home curfew, normally for twelve hours a day, monitored by an electronic tag. If the claimant is correct Article 5(4) required a judicial body like the Parole Board to consider whether he qualified for Home Detention Curfew or if he should be recalled, for example, for breach of the curfew.

The claimant in this case was a prisoner serving a determinate sentence of imprisonment of thirty months imposed in September 2003. In these proceedings he seeks damages for breach of Article 5(4) as a result of what he claims was unreasonable and unlawful delay by the defendant in 2004 in determining his eligibility for Home Detention Curfew. As this is the determination of a preliminary issue the claimant’s case is to be assumed: the process of assessing him for Home Detention Curfew did not begin until after he was eligible, and then there was delay in making the decision. Consequently on his account he suffered a loss of liberty since the ultimate decision to grant Home Detention Curfew demonstrated that he would have been released earlier had there not been delay.

The Home Detention Curfew scheme was introduced in 1999. Its operation has varied over the last decade. At the relevant time for these proceedings it was available for short-term prisoners, those serving a sentence of imprisonment for a term of less than four years, when the sentence was three months or more: Criminal Justice Act 1991 (“the Act”), ss.33(5), 34A(1), 34A(3). Certain prisoners were specifically excluded by statute from consideration, such as those serving imprisonment for certain sexual offences, those released on Home Detention Curfew who had been recalled and those where the period they would benefit from was less than 14 days: s.34A(2). Otherwise the Secretary of State had a discretion to release a person on Home Detention Curfew license: s.34A (3). To be eligible a prisoner must have served the requisite period of his sentence, which was defined in s.34A(4) to mean:

The Home Detention Curfew scheme operated against a backdrop at the relevant time of other statutory provisions. With short-term prisoners – those serving less than four years – the Secretary of State was under a duty, once they had served one-half of their sentence, to release them unconditionally if their sentence was less than twelve months, and to release them on license if their sentence was more than twelve months: s.33(1). So the half way point was the outer boundary for Home Detention Curfew. Moreover, all prisoners released on Home Detention Curfew were released on license. For those serving less than twelve months and released on Home Detention Curfew their license period terminated at the half way point: s.37(2). For those serving twelve months or more the license remained in force until the date which was calculated by reference to the difference between the three-quarter point of their sentence and the duration of the curfew condition: s. 37(1B).

Long term prisoners – those serving a term of four years or more – were not eligible for Home Detention Curfew. Section 33(2) of the 1991 Act provided: “As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on license.” However, section 35(1) gave the Secretary of State a discretion to release on license a long term prisoner who had served one half of the sentence, if recommended by the Parole Board. By reason of the Parole Board (Transfer of Functions) Order 1998, SI 1998 No 3218, the Secretary of State was bound by a Parole Board recommendation where a prisoner was serving less than fifteen years imprisonment. The 1991 Act contained no guidance on the criteria to be applied when deciding whether to release a prisoner under section 35(1), although guidance was contained in directions issued to the Parole Board by the Secretary of State under section 32(6) of the 1991 Act.

To return to Home Detention Curfew, prisoners could not be released unless the license included curfew conditions which required them to remain between specified times at a specified place – which might be an approved probation hostel – and for securing the electronic monitoring of their whereabouts during those times: s.37A(1) of the 1991 Act. The electronic monitoring, or tagging, was undertaken by a private contractor. Curfew periods could not be less than nine hours a day: s.37A(2). In fact the normal period was twelve hours. The curfew conditions remained in force until the point where persons would have served one half of the sentence: s.37A(3). Section 38A contained the power of the Secretary of State to revoke the license and recall persons to prison if it appeared that there was a breach of curfew conditions, their whereabouts could no longer be electronically monitored or it was necessary for public protection. Under section 38A(2) persons whose license has been revoked in this manner

Apart from the statutory exclusions referred to, there was nothing in the Criminal Justice Act 1991 indicating how this discretion to release on Home Detention Curfew was to be exercised. However, the Secretary of State issued a detailed policy as to the operation of Home Detention Curfew in the form of Prison Service Order governing Home Detention Curfew, PSO 6700. By way of introduction that policy said that for most eligible prisoners Home Detention Curfew would be a normal part of their progression through their sentence. The precise numbers released on Home Detention Curfew was not in evidence but it appeared to be well over 10,000 per annum at the relevant time. In the policy its purpose was said to be “to manage more effectively the transition of offenders from custody back into the community” (para 1.4). Eligible prisoners were risk assessed for Home Detention Curfew and the evidence suggested that considerable numbers were refused on the basis of risk.

The policy of who qualified for release on Home Detention Curfew has varied with time. Risk has not been the only consideration. The Secretary of State has taken into account the need to maintain confidence in the criminal justice system. For example in July 2003 various changes were made to the scheme, so that prisoners serving sentences for certain violent and sexual offences were presumed unsuitable save in exceptional circumstances, even if their risk of re-offending was low: Prison Service Instruction 31/2003, amending PSO 6700. The change was announced by written ministerial statement on 10 April 2003:

“[I]t is extremely important to maintain public confidence in the HDC scheme. So, at the same time as increasing the maximum curfew period, I will set a presumption that prisoners convicted of certain serious offences will not be suitable for release unless exceptional circumstances exist.”

At the relevant time the policy on Home Detention Curfew provided that unless prisoners had requested not to be considered, they had normally to be released on Home Detention Curfew unless there were substantive reasons for retaining them in custody until their conditional or automatic release date (PSO 6700, para 5.13.3). The policy continued that the reasons for not releasing on Home Detention Curfew had to fall under one of five headings:

Under the policy reasons had to be notified to a prisoner when Home Detention Curfew was refused (PSO 6700, para 7.2). The reasons had to be based on those identified above. (The paragraph reference in the order seems to be inaccurate in this regard). When a request was made before consideration of the case the prisoner had to be given the opportunity to make oral or written representations (para 7.3). Where Home Detention Curfew was refused, a prisoner had to be informed of the right of appeal, the right to see disclosable reports and other documentation on which the decision was based, and the right to make oral or written representations to the governor dealing with the appeal (para 7.12). Prisoners might complain about decisions related to Home Detention Curfew through the Request and Complaints procedures of a prison and a complaint had to be dealt with as a matter of priority (para 7.10). In the first instance complaints were dealt with by the establishment holding the prisoner and wherever possible by a governor of a higher grade than the governor involved in the original decision (para 7.11). Prisons were directed to permit prisoners to make oral or written representations in support of their appeal. The procedure on appeal was laid down as follows:

“In considering the appeal the governor must look at the case afresh and address all points raised by the prisoner in any representations. If necessary the governor may seek further information to assist in the consideration of the appeal, and this may include interviewing the prisoner even where there has been no request for oral representations. The governor must give reasons in writing for upholding on appeal the original decision to refuse Home Detention Curfew. Where the decision to uphold the appeal is based on the same reasons as the original refusal, the governor should seek to expand on those reasons and clarify why they apply” (para 7.13).

If prisoners remained dissatisfied after appealing at establishment level then they were informed that the next stage was to appeal to the area manager at Prison Service Headquarters (para 7.14). Complaints about proposed curfew conditions attached to a Home Detention Curfew license were to be raised in the same way (para 7.16).

Article 5(4) of the European Convention of Human Rights reads as follows:

“Everyone 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.”

During what was a relatively short hearing a considerable volume of authorities was canvassed. Submissions on both sides turned heavily on what was said to be a proper analysis of this case-law. Given the way the arguments were advanced it seems unavoidable that the first instance judge should consider the authorities cited, however tedious the exercise, in an attempt to distil principle and evaluate the submissions.

The first authority from the European Court of Human Rights is De Wilde, Ooms and Versyp v Belgium (No.1) (1971) 1 EHRR 373. There the three applicants had been detained as vagrants by what were thought to be non-reviewable, administrative decisions of the magistrates. The Court held that there was a violation of Article 5(4) because there was no judicial remedy open to them against the orders of detention. Persons deprived of their liberty by an administrative decision were entitled to have the lawfulness of the detention supervised by a court. In the course of the judgment, the Court contrasted decisions depriving persons of their liberty taken by administrative bodies on the one hand and judicial bodies on the other.

“Where a decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Article 5(4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case, the supervision required by Article 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after ‘conviction by a competent court’ (Article 5(1)(a) of the Convention)” (para.76).

In the course of its decision in Wynne v United Kingdom (1995) 19 EHRR 333, the Court applied the De Wilde dictum to mandatory life sentences: Article 5 was satisfied by the trial process and Article 5(4) did not apply on expiry of the tariff. In that case a mandatory life prisoner, whose tariff had expired, had been released but then recalled to prison when convicted of an intervening offence of manslaughter (paras 33-36. See also Thynne, Gunnell and Wilson v United Kingdom (1991) 13 EHRR 666, paras 68, 76.) However, in Stafford v United Kingdom (2002) 35 EHRR 1121 the Court departed from Wynne and held that, upon expiry of a mandatory lifer’s tariff, Article 5(4) did apply. There the applicant had received a mandatory life sentence for murder, was released on license, had the life license revoked when he committed fraud offences and then, despite a recommendation by the Parole Board that he be released again on life license, was detained by the Secretary of State beyond the period when normally he would have been released on the fraud sentence. The Secretary of State argued that the requirements of Article 5(4) were met by the original trial and any appeal, and that no new issues of lawfulness concerning the applicant’s detention arose requiring recourse to a court or similar body. Moreover, it was said that the Secretary of State’s determination of the tariff was an administrative procedure governing the implementation of the sentence and not part of the imposition of the sentence itself. The European Court of Human Rights rejected this: the tariff comprised the punishment element of the mandatory life sentence. The Secretary of State’s role in fixing the tariff was a sentencing exercise. After its expiry, continued detention depended on elements of dangerousness and risk associated with the objectives of the original sentence of murder, but those elements might change with time and new issues of lawfulness arise, requiring determination of a body satisfying the requirements of Article 5(4). Of particular importance for present purposes was the contrast the Court drew between on the one hand setting the tariff, the punishment element of a mandatory life sentence and a sentencing exercise, and on the other hand administrative implementation of a sentence such as early or conditional release from a determinate term.

“The Court has found above that the tariff comprises the punishment element of the mandatory life sentence. The Secretary of State’s role in fixing the tariff is a sentencing exercise, not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment” (para.87)).

That approach just quoted has been applied directly to decisions involving the early release of prisoners subject to determinate sentences: Article 5(4) does not apply. In the Court’s admissibility decision, Ganusauskas v Lithuania (application 47922/99) (7 September 1999), a Lithuanian court had ordered the applicant’s release a few months after he completed half his sentence. The Lithuanian Criminal Code and Prison Code permitted the court, upon request of the prison administration, to release a person sentenced to up to ten years imprisonment on license after completion of half his sentence. Subsequently the applicant had been detained for not paying the compensation associated with the original sentence. In rejecting his complaint that he was denied effective judicial review of his subsequent detention in breach of Article 5(4), the Strasbourg Court said:

“The Court notes that Article 5 § 4 only applies to proceedings in which the lawfulness of detention is challenged. The necessary supervision of the lawfulness of detention “after conviction by a competent court”, as in the present case, is incorporated at the outset in the applicant’s original trial and the appeal procedures against the conviction and sentence (see, the De Wilde, Oomj and Versyp v Belgium, Judgment of 18 June 1971, Series A no.12, p.40, §76).

The same approach was adopted in another admissibility decision, Brownv United Kingdom (Application 968/04; decision 26 October 2004), where the applicant challenged his recall to prison during the currency of a determinate sentence. Pursuant to the Criminal Justice Act 1991 he had been released on license at the two-thirds point of his sentence. The license expiry date was set at the three-quarter point. Having breached his license conditions he was recalled and was still being detained beyond the three-quarter point. He sought to contend that Article 5 applied to the recall decision. In relation to Article 5(1) the Court said:

“The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re-offending. The fact that the applicant before the end of the sentence may expect to be released on license does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within the scope of Article 5(1) of the Convention.” (para.1)

Regarding the applicant’s argument based on Article 5(4), the Court said:

“The Court recalls that where an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal [citing, inter alia, Stafford v United Kingdom, para.87]. No new issues concerning the basis of the present applicant’s detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of Article 5(4) of the Convention.” (para. 2)

The most appropriate starting point is three House of Lords authorities where Article 5(4) has been addressed in the context of sentencing. R(Giles) v Parole Board [2003] UKHL 42; [2004] 1 AC 1 involved the longer than commensurate sentence, which a court could impose for offences of a violent or sexual nature when it was of the opinion that it was necessary to protect the public. The longer than commensurate sentence could not exceed the permitted maximum: Criminal Justice Act 1991, s.2(2)(b); re-enacted by Powers of Criminal Courts (Sentencing) Act 2000, s.80(2)(b). The claimant had been sentenced under these provisions to consecutive terms of three and four years’ imprisonment. Under section 35(1) of the 1991 Act he was eligible for release at the halfway point of his sentence on recommendation of the Parole Board. Under section 33(2), referred to above, he was entitled to release on license at the two-thirds point of his sentence in any event. The claimant invoked Article 5(4), arguing that he was entitled to an oral hearing before the Parole Board upon the expiry of what was the punitive part of his sentence, the half way point, and at regular intervals after that so that he could be released if it was no longer necessary to detain him for public protection. The House of Lords had no difficulty in rejecting the argument: the result would be inconsistent with the domestic sentencing and release regime and with the jurisprudence of the European Court of Human Rights.

Lord Bingham of Cornhill adopted what he characterised as the pithy summary of the Strasbourg jurisprudence by May LJ in the Court of Appeal, that it required a court to determine the continued lawfulness of sentences which were indeterminate and where otherwise the decision to release lay with the executive (at para.9). Were the differences between the sentences considered in that jurisprudence and the sentence here such as to justify a different approach? Working from principle, Lord Bingham decided that the sentence on the appellant fell squarely within Article 5(1) and did not attract the operation of Article 5(4).

“10.

That brings one back to consideration of the core rights which article 5(4), read with article 5(1), is framed to protect. Its primary target is deprivation of liberty which is arbitrary, or directed or controlled by the executive. In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence. Since the first offence involved what the sentencing judge described as ‘a savage attack’ and the appellant had threatened further violence against his first victim, the term imposed does not appear in any way excessive. The sentence left nothing to the executive, since the Parole Board, whose duty it is to consider release at the halfway stage of the sentence, is accepted to be a judicial body.

For Lord Hope of Craighead the general rule was that detention in accordance with a determinate sentence imposed by a court was justified under article 5(1), without the need for further reviews of detention under article 5(4) (para 25). After reviewing several Strasbourg cases, Lord Hope drew a contrast between sentences where the length of detention was decided by a court at the close of judicial proceedings, the supervision required by Article 5(4) being incorporated in the decision, and

“where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requir[ing] a process which enables the basis for it to be reviewed judicially at reasonable intervals. This is because there is a risk that the link between continued detention and the original justification for it will be lost as conditions change with the passage of time. If this happens there is a risk that decisions which are taken by the executive will be arbitrary. That risk is absent where the length of the period of detention is fixed as part of its original decision by the court” (para.40).

That passage is echoed in Lord Hope’s concluding paragraph, where he held that the case before the law lords fell within the general rule (see paras.59-2). Lord Hutton, too, held that the appellant was detained pursuant to the single sentence of the court with no break in the link between the initial judgment of the court and his continued detention. That was distinguishable from several Strasbourg cases, where responsibility was given to a government minister to decide when the prisoner should be released (para.72). Lords Steyn and Scott agreed with the other three speeches.

R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 considered the cases of two claimants, both serving determinate sentences, both released from prison on license but both recalled by the Secretary of State, acting on the recommendation of the Parole Board, for breach of license conditions. Both claimants sought judicial review for failure of the Parole Board to provide an oral hearing when deciding not to recommend their re-release. In relation to the Article 5 aspect Lord Bingham of Cornhill thought it plain that in such cases the sentence of the trial court satisfied Article 5(1), not only in relation to the initial term but also in relation to recalls and revocations, since conditional release subject to the possibility of recall formed an integral component of the composite sentence of the court. He cited the Strasbourg cases mentioned above, Brown and Ganusauskas (para.36). However, the revocation decision had to comply with Article 5(4). It did, since the Parole Board effectively took the decision – the Secretary of State had to give effect to it – and it was empowered to examine whether circumstances have arisen to justify further detention of a determinate sentence prisoner released on license and, if so, whether the protection of the public called for further detention (para.37). Lords Hope, Walker of Gestingthorpe and Carswell agreed. Lord Slynn of Hadley dissented on this point: recall of someone on license was a new deprivation of liberty, although review of the recall decision by the Parole Board could satisfy Article 5(4).

The last of the trio of House of Lords decisions is R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 2 WLR 24. That involved persons becoming eligible for release on parole. The issue was whether the right of the Secretary of State to reject the Parole Board recommendation for certain prisoners, but not others, was discriminatory under Article 14 of the Convention. The prior question to consideration of the Article 14 point was whether Article 5 was engaged. Without extensive discussion the House of Lords held it was: Lord Bingham of Cornhill said that the sentences imposed in cases like Clift provided lawful authority for the detention of persons until such time as, under domestic law, their detention became unlawful. Giles was authority for that. Moreover, the Convention did not require member states to establish schemes of early release. However when, as in England and Wales there was a right under statute to seek early release, that fell within the ambit of Article 5.

There are two cases from the Court of Appeal. R (Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427; [2007] 1 WLR 1990 concerned delays in obtaining a Parole Board hearing after a long term prisoner had become eligible for release on parole at the half way stage in his seven year sentence. The Secretary of State was obliged to follow the recommendation of the Parole Board: section 35 (1) of the 1991 Act. Waller LJ, having considered the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 2 WLR 24, analysed the determinate sentence in Johnson as being in reality a composite package, the element comprising that before the prisoner was eligible for release on parole, and the element thereafter when he was eligible for release if so recommended by the Board (para 25). Waller LJ found that Article 5(4) applied since delay in the hearing of an application for parole by the Board would give rise to arbitrariness (para 29). The House of Lords has refused leave to appeal.

R (Black) v Secretary of State for Justice [2008] EWCA Civ 359 concerned the small and diminishing category of long term prisoners sentenced to a determinate term of 15 years or more, in relation to whom section 35 (1) of the 1991 Act provided that the Secretary of State had a discretion to release on license at the half way point if recommended by the Parole Board. The Parole Board’s recommendation was that the claimant should be released on license but the Secretary of State rejected it. Given the discretion of the Secretary of State the Court of Appeal held that section 35 (1) was incompatible with Article 5(4). An appeal is to be heard by the House of Lords.

A decision of the Divisional Court, R (O’Connell) v Parole Board [2007] EWHC 2591 (Admin), concerned a claimant who had served more than half the extended sentence imposed on him under section 227 of the Criminal Justice Act. With its aim of preventing danger to the public, an extended sentence differed from an ordinary determinate sentence in having an extended license and early release provisions, under which the person had to satisfy the Parole Board that it was no longer necessary for the protection of the public for him to remain in custody for the second half of the sentence. The Secretary of State was under the duty to release him if the Parole Board recommended it. It was held that Article 5(4) was engaged by the Parole Board’s decision on release at the half way point of the appropriate custodial term.

The only decision to have considered the applicability of Article 5(4) to Home Detention Curfew is R (Benson) v Secretary of State for Justice [2007] EWHC 2055 (Admin). It arose in the context of a judicial review where the claimant had been recalled for breach of conditions. The claimant argued that he was entitled under Article 5(4) to have an independent assessment of whether he should be recalled and that, in any event, his recall was unfair. After citing various authorities Collins J said that there was a degree of difficulty knowing where precisely to draw the line as to the application of Article 5(4). However, he read the Strasbourg jurisprudence as establishing that, with a determinate sentence, its lawfulness does not have to be reconsidered despite a release and recall during the period of the sentence. The period during which the claimant was, or might be released on Home Detention Curfew, was “simply the means whereby the sentence of the court is to be served” (paragraph 19).

Mr Southey grounded his cogent submissions for the claimant on the premise that release on Home Detention Curfew does not differ from any other discretionary release reposing in the hands of the executive. It was open to arbitrariness through, for example, delay, in particular if one prison regime was operating it at a different pace or in a different manner from another. Consequently, judicial decisions binding on me gave a strong steer that Article 5(4) applied to Home Detention Curfew. The policy presumption with Home Detention Curfew was in favour of release. Article 5(4) applied because there was risk of arbitrary refusal of release. In his submissions Mr Southey placed considerable reliance on Johnson [2007] EWCA Civ 427; [2007] 1 WLR 1990 and Black [2008] EWCA Civ 359. It will be recalled that Johnson was concerned with delays in the hearing of an application for parole from a long term prisoner who had passed the half way point in his sentence, and was thus eligible for it. Mr Southey analogised the discretion of the Secretary of State to release in that situation, under section 35 (1) of the 1991 Act, and the discretion to release on Home Detention Curfew, under section 34A (3) of that Act. In both cases the statute contained no guidance for the exercise of discretion, which was provided under policies issued by the Secretary of State. Mr Southey then identified as the reason for the court’s conclusion that Article 5(4) applied the potential arbitrariness arising from those delays. He underlined how Waller LJ had emphasised arbitrariness in his reasoning. Rejecting the Secretary of State’s argument advanced in that case, as before me, that Article 5(4) could have no application in the case of determinate sentences, Waller LJ said:

“So far as delay in an application coming before the Parole Board is concerned, or so far as there being delays from which it follows that different prisoners with determinate sentences are having their hearings before the Parole Board dealt with at different periods of time after their eligibility date, that same arbitrariness is present in the determinate sentence prisoner context. It is that arbitrariness which, in Convention terms, would, in my view, render the sentence unlawful, and falls within the ambit of Article 5(4) … If the claimant can demonstrate that at an earlier consideration by the Parole Board he would have been released, it would seem to me to follow that his detention for some period was arbitrary, unjustified and therefore unlawful. It would furthermore seem to me that under Article 5(4) the claimant was entitled to have his case considered by the Parole Board “speedily” so that his sentence did not become “arbitrary.” (para 29)

Mr Southey submitted that this passage in Johnson demonstrated that the primary reason that Article 5(4) applied when release under section 35 (1) was considered was that there was a risk that detention would otherwise become arbitrary. Essentially that was because there would be nothing to prevent detention continuing because no Parole Board review had been conducted. In his submission there were clear similarities between section 35 (1) and section 34A (3). The language of both provisions suggested that there was no obligation to release a prisoner. However, it was obvious that the discretion conferred by both provisions had to be exercised in accordance with general public law principles. As a consequence, a failure to release a prisoner under both section 35 (1) and section 34A (3) could be challenged on the basis that it was unreasonable in a public law sense or contrary to policy. If a prisoner could establish that a refusal to release was contrary to policy and hence unlawful, a prisoner could effectively establish a right to be released under section 35 (1) or section 34A (3). The fact that a prisoner could establish a right to be released implied that there was a risk that detention could become arbitrary. Detention could become arbitrary because no review of eligibility to be released had been conducted in circumstances in which a review would demonstrate that the prisoner was entitled to release. The situation of Home Detention Curfew was very similar to the situation that was held to engage Article 5(4) in Johnson. The approach in Johnson applied equally to section 35 (1) or section 34A (3).

The concern with the core right of Article 5(4), submitted Mr Southey, was again evident in Black. After a consideration of the authorities, Latham LJ concluded that section 35 of the 1991 Act was incompatible with the requirements of Article 5(4). “It leaves the decision as to release in the hands of the executive, and is therefore capable of being applied arbitrarily which is the mischief at which Article 5(4) of the ECHR is directed” (para 17. See also para 15). Convincingly in O’Connell, contended Mr Southey, Latham LJ said that the question of whether Article 5(4) was engaged was not answered by a formal analysis of the original sentence.

“The question is whether, bearing in mind its purpose, namely to prevent arbitrariness, it has a function to perform in the particular circumstances of the case in question. In the present case, the decision as to whether or not to direct release is critical to the claimant’s entitlement to release after he has served one half of the custodial period. That decision is capable of being an arbitrary decision unless controlled by a mechanism which is Article 5(4) compliant. In other words there is a clear purpose to be served by the Article in this context, in exactly the same way as it has a function to perform in the case of indeterminate sentences.” (para 14)

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.

If Mr Southey was correct that Article 5(4) applied in the way he suggested there could be little doubt, he contended, that delay could amount to a violation of Article 5(4). In R (Noorkoiv) v Secretary of State [2002] 1 WLR 3284 the Court of Appeal held that Article 5(4) generally required a Parole Board review to be held before a prisoner serving a life sentence became entitled to release. Noorkoiv suggested that the Home Detention Curfew review process in the claimant’s case should have been completed before the date when the claimant was eligible for release unless there was some good reason for delay.

The core right contained in Article 5(4) is to give anyone deprived of liberty the right to have the lawfulness of their detention reviewed by a court. Where a person is imprisoned after conviction by a court then the starting point is that the review of the lawfulness of the person’s detention occurs at the time of sentence. Some of the jurisprudence expresses this in terms of the lawfulness of detention being “incorporated” in the original sentencing decision. That is the general rule. It does not exclude the executive from all decision-making affecting the liberty of a person being detained. However, exceptions have been recognised and the task is to understand the ambit of these exceptions.

From the Strasbourg jurisprudence the lawfulness of a person’s continued detention must be reviewable through judicial proceedings. That was essentially the decision in the seminal case, De Wilde, Ooms and Versyp (1971) EHRR 373. Based on that the Strasbourg jurisprudence establishes some specific propositions: with discretionary and mandatory life sentences, the tariff comprises the punishment element and fixing the tariff is a sentencing exercise. After expiration of the tariff period continued detention for those subject to discretionary and mandatory life sentences requires a determination by a body satisfying the requirements of Article 5(4). 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.

Nothing in the Strasbourg jurisprudence suggests that Article 5(4) has an application to Home Detention Curfew. In Stafford (2002) 35 EHRR 1121 there are clear dicta that the early or conditional release of a person sentenced to a determinate term of imprisonment is “the administrative implementation of the sentence”. Judicial supervision of the lawfulness of that sentence is regarded as being incorporated at the outset in the decision of the sentencing court. Of course none of this is writ in stone. Stafford itself represented the Court’s extension of Article 5(4) from its previous application. The Court took its cue from changes in domestic law, including domestic case-law. The Court noted that while it was not formally bound by previous decisions, it was in the interests of legal certainty, forseeability and equality before the law that it should not depart from them without cogent reasons. On the other hand the Court said that it must respond to changing conditions domestically and any emerging consensus as to the standards to be achieved (paragraph 68). 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].

Nor do the House of Lords authorities advance the claimant’s case. All of them concerned situations where the Parole Board, a judicial body, was entrusted by statute with the task of assessing eligibility for release. In Giles [2003] UKHL 42; [2004] 1 AC 1 the law lords based their reasoning on the lawfulness of the detention being incorporated in the original sentence. There was no risk of the link between the continued detention and the original sentence being broken. West [2005] UKHL 1; [2005] 1 WLR 350 held that conditional release and possible recall for breach were incorporated in the original sentence. Clift [2006] UKHL 54; [2007] 2 WLR 24 does not take the matter further. As Lord Hope put it in Clift the basic rule is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary, and that the cases where this has been departed from have been where decisions as to the length of the detention has passed from the court to the executive and there was a risk that the factors which informed the original decision had changed with the passage of time (at para 51).

That leaves Johnson [2007] EWCA Civ 427; [2007] 1WLR 1990, Black [2008] EWCA Civ 359 and O’Connell [2007] EWHC 2591 (Admin). In my judgment they are not authority for the claimant’s contention. All concerned persons challenging their detention beyond the half way point, the point at which the Parole Board could consider whether risk was such that the prisoner could be released. Johnson involved the situation when, by statute, a long term prisoner was eligible to be released on parole after the half way point if the Parole Board recommended it. Black again focused on a prisoner who, by statute, was eligible for release, but where the Secretary of State could counter a Parole Board recommendation in favour of release. The claimant in O’Connell was one of those serving an extended sentence, which as the court said differed by statute from an ordinary sentence in that a person had to demonstrate to the Parole Board that he was no longer a danger to the public if he was not to remain in custody for the second half of the custodial period (at para 8).

Thus in these cases sentences are being regarded, as Waller LJ put it in Johnson, as a composite package. For present purposes determinate sentences divide into the element which by legislation must be served in custody up to the half way point, and the element beyond that where in most cases continued detention is only justified by continuing risk. Before the half way point, the part which must be served in custody, the review of lawfulness required by Article 5(4) occurs with the decision of the original sentencing court, although under the Home Detention Curfew policy release may in some cases be possible. Beyond the half way point the protection of Article 5(4) is accorded differently, so that decisions on continued custody are not left in the hands of the executive but are on the recommendation of a judicial body, the Parole Board. Once the structure of sentences, with their different elements, is understood, the issue of Home Detention Curfew falls into place.

Before concluding it is as well to record that the consequences in practice of the claimant succeeding were canvassed in argument. Both sides accepted that if Article 5(4) applied to Home Detention Curfew in the way the claimant contended there would be the necessary involvement of a judicial body. It was assumed that in practice that meant the Parole Board. In the claimant’s submission, therefore, to avoid arbitrary decision-making by the executive recommendations about Home Detention Curfew would have to be taken by the Parole Board. During the hearing there was some discussion of whether Article 5(4) would be satisfied were the Parole Board to be confined to a review function with initial decisions on Home Detention Curfew being taken by the executive. No authority was cited in support. It is necessary for me to proceed on the basis of the claimant’s written submission, which seemed to accept that if Article 5(4) applied in the way suggested there would need to be a Parole Board involvement before a prisoner became eligible for release and if he was to be recalled for breach of, say, his curfew conditions.

The threat of floodgates is generally an argument of last resort. In the context of Home Detention Curfew, however, it has a reality. If the claimant is right the question of whether a prisoner should benefit from release on Home Detention Curfew would need to be referred to the Parole Board. There are many thousands of such cases a year. The maximum period of Home Detention Curfew is 135 days but the period can be far shorter. The Parole Board will need to consider each such case, however brief the period. Deciding to recall a person for breach of Home Detention Curfew would also need to be considered by the Parole Board. In other words, the application of Article 5(4) in the way contended would thwart the current operation of the scheme. Despite no declaration of incompatibility being sought, the legal consequence would be a fundamental incompatibility with Article 5(4). The current scheme would wrongly entrust the Secretary of State with a discretion both as to early release and recall.

Clearly the absence of Article 5(4) review in the way the claimant suggests does not mean that decisions by the Secretary of State on Home Detention Curfew are without control by the courts. Indeed, during the hearing a number of decisions were referred to where Home Detention Curfew had been reviewed for public law error. In R (Price) v Governor HMP Kirkham [2004] EWHC 461 (Admin); [2004] 1 PLR 373 the prisoner’s application for Home Detention Curfew was refused. He successfully sought judicial review of the decision to withhold information which had been used to fix his risk of re-offending as medium. Collins J held that since he had been unable to respond properly to the allegation on which this risk assessment was based he had been treated unfairly. R (Cross) v Governor HM Youth Offender Institution Thorn Cross [2004] EWHC 149 (Admin) is another case where Home Detention Curfew was refused. There the refusal was because the claimant fell into one of the categories where, save in exceptional circumstances, the persons were considered unsuitable for Home Detention Curfew. Henriques J decided that the Governor had properly considered the claimant’s case and that there were no exceptional circumstances to justify a decision in his favour. Most recently in R (Noone) v Governor of Drake Hall Prison [2008] EWHC 207 (Admin) the claimant successfully challenged the prison governor’s calculation of the date she became eligible for release on Home Detention Curfew, the difficulty in calculation arising through the interaction of complex criminal justice legislation.

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.

Recent decisions of the Court of Appeal on Article 5(4) do not affect this analysis since they concern what happens after the part of the sentence has been served when custody is compulsory. During the compulsory part of the sentence release or recall under the Home Detention Curfew policy is simply, as the European Court of Human Rights has put it, the administrative implementation of the original sentence – the means by which the sentence is to be served. In the claimant’s case he was not unlawfully detained during any part of that compulsory part of his thirty month sentence, up to the half way point. He may well have had a justified grievance regarding delay in the grant of some of the 135 days of Home Detention Curfew which was a possibility for him under the policy. Possible avenues for complaint were through the complaints and appeal procedure established under the policy or through an urgent application for judicial review. But he was not unlawfully detained during any part of that 135 day period and so he is not entitled to damages for breach of Article 5(4).