R (West) v Parole Board

Recall of a determinate-sentence prisoner under section 39 of the Criminal Justice Act 1991 is a protective and preventive process. It assesses current risk to the public and compliance with licence conditions. It does not impose a new punishment or determine a criminal charge, even though recall may result in substantial imprisonment.

The process must be assessed as a whole. Fresh criminality is not required. If Article 6 applied, an oral hearing and, ordinarily, legal representation would be required. Independently, fairness may require an oral hearing where important disputed facts determine the outcome.

The appellant was a short-term prisoner released on licence after serving half his sentence. The Secretary of State recalled him under section 39(2) of the Criminal Justice Act 1991 following alleged breaches of his licence conditions and referred the case to the Parole Board.

The Board rejected written representations and declined to recommend immediate release under section 39(5). Turner J dismissed the appellant’s judicial review challenge. Although the appeal had become moot, the Court of Appeal considered the issues of general importance. The central question was whether recall involved the determination of a criminal charge under Article 6 and, if so, whether an oral hearing with legal representation was required.

1. Disposition. By a majority, Simon Brown LJ and Sedley LJ dismissed the appeal. Hale LJ dissented.
2. Article 6 classification. The court applied the autonomous Convention approach in Engel v The Netherlands (No 1) (1976) 1 EHRR 647. Domestic classification is relevant but carries less weight than the nature of the conduct and the nature and severity of the consequences. The factors are weighed cumulatively.
3. Nature and purpose of recall. The section 39 process is directed to protection of the public against risk. The Board assesses whether continued liberty would create an unacceptable risk of further offences or future non-compliance with licence conditions. The process is preventive, not punitive or deterrent. The alleged breach need not itself be a criminal offence.
4. Effect of detention. Recall does not add a fresh term of imprisonment. The prisoner continues to serve the same sentence for the original offence, with the balance served in prison rather than on licence. Later release may be conditional rather than unconditional. The severe consequences therefore do not convert the process into determination of a criminal charge. Ezeh & Connors v United Kingdom (2002) 35 EHRR 691 was distinguished because it concerned separate disciplinary proceedings and detention imposed as punishment or deterrence.
5. Procedural observations. If recall did determine a criminal charge, an oral hearing would ordinarily be required and legal representation would generally follow where the interests of justice required it. The Board’s usual paper procedure would not satisfy those requirements. Those observations were unnecessary to the decision. Independently, section 32 permits procedures suited to the case, and the Board should be readier to hold an oral hearing where important disputed facts are likely to determine the result. A full criminal trial is not necessarily required.
6. Dissent. Hale LJ considered the imprisonment severe and appreciably detrimental. In her view, recall followed fresh events unrelated to the original offence, and the preventive character attributed to the process in R v Sharkey [2000] 1 Cr App R 409 and the Akhtar decisions did not answer the Article 6 question. She would have held that recall determined a criminal charge.

• Court of Appeal — The appeal was dismissed by a majority. The court held that recall under section 39 did not involve determination of a criminal charge: [2002] EWCA Civ 1641.
• High Court, Administrative Court — Turner J dismissed the appellant’s judicial review challenge on 26 April 2002. No separate citation is stated in the judgment.