Sim, R (on the application of) v Parole Board & Anor

A recalled prisoner serving an extended licence period is deprived of liberty subject to the safeguards in Article 5. Continued detention must remain connected with, and serve, the objectives of the original extended sentence. It must also be subject to Article 5(4)-compliant periodic review.

Criminal Justice Act 1991, section 44A(4), must be read compatibly with those safeguards. The Parole Board must direct release unless it is positively satisfied that confinement is necessary to protect the public. The relevant risk is of further sexual or violent offending addressed by the extended sentence. The Board may rely on hearsay, but fairness may require oral evidence where untested disputed material is crucial.

The claimant received an extended sentence for sexual offences. After release on licence, he was recalled following alleged breaches of hostel and supervision conditions. The Parole Board later refused to direct his release, finding that his behaviour, drinking, lack of offending-behaviour work and inability to be managed on licence created an unacceptable risk to the public.

On judicial review, the claimant challenged the legality of recall and continuing detention during the extension period. He alleged incompatibility with Article 5, an incorrect release test, an unlawful presumption of continued detention, and procedural unfairness through reliance on disputed hearsay evidence.

The central issues were the application of Article 5 to recalled extended-sentence prisoners, the proper construction of section 44A(4), the nature of the risk justifying continued confinement, and the requirements of fairness before the Parole Board.

1. The claim to quash the Parole Board's decision was dismissed. The Board's conclusion that the claimant could not then be managed safely on licence was open to it and involved no procedural unfairness.

2. Recall during an extended licence period attracts the safeguards of Article 5. Unlike a longer-than-commensurate custodial sentence, the sentencing judge does not determine an additional period of custody at sentence. Detention after recall must therefore remain consistent with the objectives of the original sentence and be subject to regular Article 5(4)-compliant review.

3. The legislative scheme did not inherently infringe Article 5(1). Recall is causally connected to the original conviction because it is the sanction which makes community supervision effective. Periodic review prevents detention for the entire extension period from becoming disproportionate or arbitrary.

4. Section 44A(4) of the Criminal Justice Act 1991 was construed under section 3 of the Human Rights Act 1998. The Board must conclude that detention is no longer necessary unless it is positively satisfied that confinement is necessary for public protection. A genuine uncertainty therefore requires release on licence, rather than continued detention.

5. The Board may confine a recalled prisoner only to address the risk of further sexual or violent offending for which the extended sentence was imposed. It need not find a high risk, or a risk of serious physical or psychological harm. It is sufficient that the community supervision arrangements have broken down so that they can no longer contain the relevant risk. The risk must, however, be real or substantial rather than fanciful.

6. Hearsay evidence is admissible before the Board. Fairness is case-specific and does not invariably require witnesses to be called for cross-examination. The Board must give disputed and untested material appropriate weight. Oral evidence may be required where such material is crucial to a decision to deprive a prisoner of liberty. Here, the disputed allegations of aggression and dismissal were not decisive, while the claimant's drinking, warnings and refusal to undertake work were substantially undisputed.

Declarations reflecting the Article 5 conclusions and the compatible construction of section 44A(4) were made after judgment.

not stated in the judgment.