Article 5 of the ECHR must be a frontrunner for the award of “most analysed Convention Article”*. Part of the difficulty lies in the format of the Article itself – it’s unique construction reflects that while the right to liberty is considered fundamental, the Convention drafters had to get round the fact that states reserve the right to deprive persons of their liberty if they break the law. The resulting construction is that the right to liberty is set out in art 5(1) but is then subject to six specific exceptions in art 5 (1) (a-f) and further conditions in art 5(2)–(5). The ECtHR has ruled that the art 5 exceptions are exhaustive; hence generating considerable litigation about the scope of the exceptions and the application of the conditions under art 5(2)– (5). Applying art 5 to complex and changeable UK sentencing principles creates a further challenge.Whiston (heard on 26 March) concerned the revocation by the Secretary of State of a decision to release a prisoner on licence pursuant to the home detention curfew scheme. Prisoners subject to a determinate prison sentence can be released under two different types of licence. Under the Criminal Justice Act 2006, s 244 prisoners serving sentences of 12 months or more have the right to be released on licence after having served half their sentence, the “custodial term”. A prisoner may also be released during the custodial term under s 246 of the Act, but if they are released must be subject to a curfew. The curfew cannot operate beyond the period of the custodial term when the prisoner would in any event be entitled to be released.

The Secretary of State may revoke a licence (whether under s 244 or 246) at any time before the end of the determinate sentence under s 254, but if that power is used the recall must be confirmed by the Parole Board. However, there is a specific power to revoke a s 246 licence under s 255, but only while the curfew condition is in place. The use of the s 255 power is not reviewed by the Parole Board.  The question posed in Whiston was whether the s 255 power, which provides no right of review by the Parole Board or any other judicial body, is compatible with art 5(4), 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.”

 The difficulty lies in deciding whether the recall is sufficiently connected to the original sentencing decision. When a sentence is imposed following a criminal trial the necessary art 5(4) supervision is incorporated into the sentencing decision itself.

There are however certain situations where art 5(4) may require periodic review of a sentence. One is where an indeterminate sentence is imposed and the decision is left to the executive to decide if the prisoner should be released. In that case there must be periodic review by a court. The other is when, in the case of determinate sentences, the executive may be empowered to release an individual on licence but recall the individual if the licence conditions are infringed.

In R (West) v Parole Board [2005] 1 WLR 350 the House of Lords found that the recall of a prisoner (who had been released as of right after the custodial element of his sentence) for breach of his licence conditions did engage art 5(4). The recall was a new deprivation of liberty and so not covered by the original sentencing decision. Arguably there is no distinction between the recall decision in West and the recall decision in Whiston, the only difference is that one was after the prisoner had been released as of right after the expiry of the custodial period and the other was after the prisoner was released under curfew conditions during the custodial period. This appeared to be the analysis of Lord Brown in R (Black) v Justice Secretary [2009] 1 AC 949 when considering West.

The Court of Appeal did however find that there was a critical distinction between the decision to recall in West and that in Whiston. In the view of Elias LJ the release to home detention curfew is much more closely integrated to the original sentence than release as of right once the custodial period is completed. Release to home detention was, in his view, a modified way of performing the original sentence imposed by the judge; the recall simply restores the primary way in which it was assumed that the sentence would be served. The conditions of art 5(4) will therefore be satisfied by the original sentencing decision.

It is difficult to call how the case will go in the Supreme Court. Whilst Lord Brown’s comments in Black were obiter, his analysis is persuasive. Whilst there is a distinction between the recall of prisoner on licence at the end of the custodial term and recall of a prisoner during the custodial term there is a powerful argument that it is a distinction without difference in terms of Article 5 (4). The fact remains that in both cases a prisoner has been released and is being recalled. However, sentencing practice and the release of prisoners is a difficult area and the Supreme Court may well be reluctant to require further judicial supervision of recall decisions in the circumstances.

* Is anyone is aware of what is the most litigated article in the Convention? Answers on a postcard please.