Smith v Parole Board

Recall from release on licence during a determinate sentence does not create a fresh deprivation of liberty. Detention after revocation remains detention pursuant to the original sentence, so Article 5.4 does not require a further judicial review. Recall under section 39 of the Criminal Justice Act 1991 is not a determination of a criminal charge. Nor does it determine civil rights where the prisoner has no surviving right to liberty. Even if Article 6 applied, an oral hearing would not be automatic. Common-law fairness is contextual. An oral hearing is required where a disputed issue of fact is central to the risk assessment and cannot fairly be resolved without oral evidence. Written representations suffice where the primary facts are undisputed and the remaining task is evaluative.

The claimant was sentenced to six and a half years’ imprisonment for rape and threats to kill and was released on licence after serving two-thirds of his sentence under the Criminal Justice Act 1991. Following positive drug tests, the Parole Board recommended revocation of his licence and the Secretary of State recalled him to prison. The Board rejected written representations made on his behalf.

The claimant sought judicial review, arguing that Articles 5 and 6 of the European Convention on Human Rights and the common law required an oral hearing. Permission was granted in the High Court. After an interlocutory appeal concerning reliance on Article 5, the substantive case was ordered to be heard in the Court of Appeal. The central issues were whether recall during a determinate sentence engaged Articles 5 or 6 and whether the written procedure was fair.

The application for judicial review was dismissed unanimously.

1. Article 5. Release under section 33(2) of the Criminal Justice Act 1991 was release on licence during the currency of the sentence. Section 39(6) made clear that detention after revocation was detention pursuant to the original sentence. The claimant therefore had no surviving right to liberty during the unexpired determinate term, and recall did not engage Article 5.4. The reasoning in R (Giles) v Parole Board [2003] UKHL 42 supported the distinction between detention whose length was fixed by the sentencing court and detention whose length was left to the executive.
2. Article 6. The court was bound by R (West) v Parole Board [2002] EWCA Civ 1641, which treated the Parole Board’s function under section 39 as prevention of risk and protection of the public, rather than determination of a criminal charge. The civil-rights limb was also not engaged because the claimant’s right to liberty had been lost on sentencing. Even if Article 6.1 applied, it did not require an oral hearing in every case.
3. Common-law fairness. Fairness had to be assessed in the statutory and factual context, applying the principles in R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531. The appropriate test was whether a disputed issue of fact was central to the Board’s assessment and could not fairly be resolved without oral evidence. The claimant had not requested an oral hearing, the primary facts concerning his drug use and history were not materially disputed, and his submissions were fully made in writing. The Board’s remaining task was an assessment of risk. The procedure was therefore not actually unfair.

Application dismissed.

1. Court of Appeal (Civil Division): On 30 June 2003, allowed the claimant’s interlocutory appeal concerning reliance on Article 5 and ordered that the substantive case be heard in this court. On 31 July 2003, dismissed the application for judicial review.
2. High Court (Administrative Court): Silber J granted permission to seek judicial review on the Article 6 and common-law grounds. Goldring J refused to permit reliance on Article 5 at the substantive hearing. The Court of Appeal allowed the appeal against that refusal and directed that the case be heard there.