01 Monday Sep 2014
Mr Whiston was sentenced to 18 months in prison for armed robbery. He was entitled to automatic release on licence after he had served the first half of his sentence – this first half being known as the “requisite custodial period” – on 5 July 2011. However, before this date on 21 February 2011, Mr Whiston was released on licence under a home detention curfew under s 246 of the Criminal Justice Act 2003. Then, on 7 April 2011, the Secretary of State revoked Mr Whiston’s licence under s 255 of the Act and he was recalled to prison. The reason given was that Mr Whiston’s whereabouts could no longer be monitored in the community.
Mr Whiston challenged this decision, arguing that as a result of the release on licence he regained his liberty, so that the later withdrawal of the licence and recall to prison constituted a deprivation of his liberty which infringed art 5(4) of the ECHR, which reads:
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.
Under s 244 of the Criminal Justice Act 2003, where a person has been convicted and given a determinate sentence of twelve months or more, it is the duty of the Secretary of State to release him on licence after he has served the requisite custodial period, subject to certain exceptions. However, a prisoner can also be released on licence during the requisite custodial period under s 246, but they must be subject to a curfew; this was the case in Whiston.
The licence remains in place until the end of the entire sentence period. However, the Secretary of State is able to revoke a licence and recall the licensee to prison, whether the licence was issued under s 244 or s 246. There are two ways this can be done. First, under s 254 of the Criminal Justice Act 2003, the Secretary of State has a general power to revoke a licence and recall the licensee to prison. In this situation, the licensee is entitled to be told reasons for his recall and to make representations to the Secretary of State and ultimately to the Parole Board. Second, under s 255 the Secretary of State has a specific power to revoke a licence that was issued under s 246 only. This power can only be exercised until the end of the requisite custodial period. This was the power used in Whiston and, unlike the s 254 power of recall, it is not open to review by the Parole Board or other judicial body. The question for the Supreme Court, therefore, was whether the power under s 255 is compatible with art 5(4) of the ECHR.
Hearing the case in the Court of Appeal, Elias LJ stated that it seemed to him that release on home detention curfew (i.e. during the first half of the sentence) in Mr Whiston’s situation is much more closely integrated with the original sentence than is release as of right once the custodial period has been completed (i.e. after the first half of the sentence). In his view, the home detention curfew is a modified way of performing the original sentence imposed by the judge and the recall to prison “simply restores the primary way in which it was assumed that the sentence would be served”. As a result, he thought that the conditions of art 5(4) were satisfied by the original trial, as the link with the original sentence imposed by the judge was not broken. The CA dismissed the appeal.
Supreme Court judgment
In a judgment delivered by Lord Neuberger, which he said reflected the reasons of Elias LJ, the Supreme Court also dismissed Mr Whiston’s appeal. The key points were as follows:
(1) In the Strasbourg case law relied on by the Secretary of State, in each case the court rejected the article 5(4) complaint on the ground that the article did not apply at all in circumstances where the recall to prison occurred during the period of a determinate sentence imposed for the purposes of punishment (para. 25).
(2) In domestic case law, as relied on my Mr Whiston, the picture was less clear. On the one hand, the reasoning in the case of R (Giles) v Parole Board  UKHL 42 is in line with the Strasbourg jurisprudence. On the other hand, the situation is complicated by the cases of R (West) v Parole Board  UKHL 1 and R (Black) v Secretary of State for Justice  UKHL 1, which Lord Neuberger called unsatisfactory in their inconsistent approach to art 5(4) (paras. 40-42).
(3) Left with the question of what to do about this “unsatisfactory state of affairs”, the court was not persuaded to follow Lord Brown’s approach in his obiter dictum in Black to conclude that art 5(4) applies in this case because Mr Whiston is seeking to be released after recall (par. 43).
(4) Instead, the court agreed that it should follow the Strasbourg jurisprudence, as explained and applied in Giles, and hold that Mr Whiston cannot invoke art 5(4), as, so long as his sentence period was running, it had been satisfied by the sentence which was imposed at his trial (paras. 43-44).
(5) In a separate comment, Lady Hale wished to sound a note of caution about some of the reasoning which led Lord Neuberger to reach his conclusion. Lady Hale stated that the present domestic law draws “a principled distinction” between those prisoners recalled after mandatory release on licence i.e. after the requisite custodial period, and those recalled after discretionary release on home detention curfew i.e. before the requisite custodial period. It is that the former can make representations to the Secretary of State and ultimately the Parole Board, while the latter cannot, because in the latter situation the prisoner is still serving the period of imprisonment which resulted from the sentence originally imposed on him by the court. Unlike the former, he may be recalled because it is not possible to monitor him at his address – a purely practical reason – rather than because he still constitutes a risk of reoffending. In Lady Hale’s view “it is a distinction which is certainly consistent with the principles contained in art 5(1) and (4) of the European Convention” but, she added, she would prefer it not to be taken further than the situation in the present case (paras. 51 and 58-59).
While earlier domestic case law left the position on s 255 Criminal Justice Act 2003 and art 5(4) ECHR somewhat unclear, the Supreme Court has clarified the situation with this judgment, which is sensible and in line with Strasbourg. It makes clear that a key distinction is whether the prisoner is released before or after the requisite custodial period. In the former situation the prisoner’s original sentence period is still running and therefore art 5(4) would have been satisfied when that sentence was imposed.