Secretary of State for the Home Department v Sim & Anor

Detention following recall during the extension period of an extended sentence must receive judicial review under article 5(4). The sentencing court has authorised possible detention during that period but has not ordered imprisonment throughout it. The need for detention may change as the offender’s risk changes.

The Parole Board must therefore direct release unless positively satisfied that continued detention is necessary for public protection. A statutory default favouring detention is incompatible with article 5 and must be read accordingly under section 3 of the Human Rights Act 1998.

The Board may consider hearsay evidence when assessing risk. Fairness ordinarily requires attention to its quality and weight, although evidence fundamental to the decision may require an opportunity for cross-examination.

The first respondent received an extended sentence comprising a custodial term and a five-year extension period on licence. After his release, the Secretary of State revoked his licence and recalled him. The Parole Board subsequently declined to direct his release because it considered that he continued to present an unacceptable risk to the public.

Elias J dismissed the challenge to the Board’s individual decision but declared that detention during the extension period attracted article 5 safeguards and that section 44A(4) of the Criminal Justice Act 1991 required release unless the Board was positively satisfied that continued detention was necessary.

The Secretary of State appealed against both declarations. The prisoner cross-appealed on whether the Board had acted unfairly by admitting hearsay evidence concerning disputed conduct. The central issues were the application of article 5(4), the compatible construction of section 44A(4), and the requirements of fairness governing hearsay before the Board.

1. Both the Secretary of State’s appeal and the prisoner’s cross-appeal were dismissed unanimously. Keene LJ delivered the judgment, with which Munby J and Ward LJ agreed.

2. Article 5(4) applies where an offender is detained following recall during the extension period of a sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. A court has not sentenced the offender to imprisonment throughout that period. It has merely authorised detention if the licence is properly revoked. The extension period is directed towards preventing further offending and securing rehabilitation in the community. Risk may change with time and must therefore be reviewed by a judicial body. The position differs from detention within a determinate term of imprisonment fixed by the sentencing court, as considered in R (Giles) v Parole Board [2003] UKHL 42 and R (Smith) v Parole Board [2003] EWCA Civ 1269.

3. On its ordinary construction, section 44A(4) of the Criminal Justice Act 1991 creates a default in favour of continued detention. If the Board remains uncertain whether confinement is necessary, the words requiring release only when it is satisfied that confinement is no longer necessary would prevent release. Although a burden of proof is inappropriate to risk evaluation, that does not remove the statutory default.

4. That default is incompatible with article 5. The sentencing court proceeds on the basis that the offender may remain in the community during the extension period, and no judicial body has previously found detention during that period necessary. The Board cannot begin from the premise that the executive’s decision to recall was correct. Under section 3 of the Human Rights Act 1998, section 44A(4) must be read so that the Board directs release unless positively satisfied that continued detention is necessary for public protection.

5. Hearsay evidence is not inherently inadmissible in Parole Board proceedings. Fairness requires the Board to consider its quality, permit the prisoner a fair opportunity to answer it, and reflect its hearsay character and lack of cross-examination in the weight assigned to it. Exceptionally, evidence may be so fundamental that fairness requires an opportunity for cross-examination before it can be considered. Here the disputed hearsay concerned only part of the overall evidence and was not fundamental to the risk decision. Its admission caused no unfairness and breached no Convention right.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal against the two declarations was dismissed. The prisoner’s cross-appeal concerning hearsay evidence was also dismissed. Permission to appeal to the House of Lords was refused.
2. High Court, Administrative Court: Elias J declined to quash the Parole Board’s decision but declared that article 5 applied to detention during the extension period and that section 44A(4) of the Criminal Justice Act 1991 required release unless the Board was positively satisfied that detention remained necessary.