Hirst, R (on the application of) v Secretary of State for the Home Department & Anor

A statutory recall scheme for life-licensees was compatible with Article 5 of the Convention. Recall detention was governed by Article 5(4), not Article 5(1)(c) and Article 5(3). Article 5(2) nevertheless required prompt communication of the essential legal and factual reasons for recall. A delay in supplying the dossier could breach Article 5(4) by delaying access to the review process, although subsequent preparation and hearing periods were assessed in their circumstances and were not excessive. A declaration was sufficient compensation for the failure to give reasons, but an additional and unjustified loss of liberty warranted modest damages.

The claimant, a life prisoner released on licence, was recalled to prison after concerns about his conduct and licence compliance. The Parole Board later directed his release, which occurred on 23 November 2004. He sought judicial review of the statutory recall scheme, the failure to give prompt reasons, the time taken to secure the Parole Board determination, and the interval before release.

The central issues were whether the recall scheme complied with Article 5, whether reasons were supplied promptly and adequately, whether the review proceeded speedily, and what remedy followed from any breaches.

1. Compatibility of the recall scheme. The statutory scheme under Crime (Sentences) Act 1997, section 32, was compatible with Article 5 in principle. The relevant safeguard was the speedy review required by Article 5(4). Article 5(1)(c) and Article 5(3), which concern detention pending criminal proceedings and prompt production before judicial authority, did not govern this form of recall.
2. Causal connection. Release on licence did not itself break the causal connection between the original conviction and later recall detention for the purposes of Article 5(1)(a). The connection would be broken only if detention were based on grounds inconsistent with the objectives of the sentencing court.
3. Reasons. Article 5(2) required the claimant to be told promptly, in understandable terms, the essential legal and factual grounds for recall. Telling him only that he was being recalled was insufficient. The dossier was not supplied for at least eight days, and the reasons were neither prompt nor adequately established. This breached Article 5(2).
4. Speedy review. Article 5(4) required the review process to proceed with reasonable despatch, assessed in light of the nature and complexity of the case. The delay in supplying the dossier postponed the effective commencement of the claimant’s representations and amounted to a breach, assessed at approximately 14 days. The period needed for preparation, the Parole Board hearing and the reasoned ruling was not unreasonable. A further seven days to arrange release was also justified by the necessary administrative and safeguarding steps.
5. Remedy. The finding of breach provided adequate just satisfaction for the Article 5(2) violation. The additional unjustified period in custody required compensation. The court awarded £1,500 for the Article 5(4) breach, made declarations as to both breaches, ordered the Secretary of State to pay half the claimant’s costs, and made no order for costs against the Parole Board.

Permission to apply for judicial review was initially refused on the papers. Walker J granted permission on 2 February 2005. The judgment itself was a first-instance decision; permission to appeal was refused.