Hirst v Secretary of State for the Home Department & Anor

A statutory recall scheme for a discretionary life prisoner released on licence is compatible with article 5 where a sufficient causal connection remains between the original conviction and the recall. The prisoner is not entitled to a preliminary judicial hearing, analogous to bail, before recall takes effect. Individual breaches in applying the scheme do not necessarily make the scheme itself incompatible with article 5.

The appellant, a discretionary life prisoner, was recalled to custody under section 32 of the Crime (Sentences) Act 1997 after concerns arose from events during his release on licence. The Parole Board later directed his release. Crane J found breaches of article 5(2) and article 5(4) arising from delay, granting a declaration and awarding £1,500 compensation, but rejected the primary challenge to the compatibility of section 32 with article 5. The appellant appealed, arguing that recall required an initial judicial determination, with liberty pending final review.

1. Appeal dismissed. Section 32 of the Crime (Sentences) Act 1997 was compatible with article 5 of the ECHR.
2. Recall of a discretionary life prisoner falls within article 5(1)(a) where a sufficient causal connection remains between the original conviction and the later deprivation of liberty. That connection exists where the circumstances underlying the sentence are sufficiently reflected in the circumstances giving rise to recall.
3. Article 5 does not require a preliminary judicial hearing, analogous to bail, before recall takes effect. Immediate executive recall is permissible, provided the remaining review process operates as rapidly as possible, consistently with public safety and justice.
4. R (Noorkoiv) concerned continued detention after the tariff period of an automatic life sentence and did not support the proposed preliminary inquiry.
5. Compatibility of the statutory scheme is distinct from compliance in an individual case. The breaches found concerning delay, and the remedies granted, did not render the scheme incompatible as a whole.

• Court of Appeal (Civil Division) ([2006] EWCA Civ 945): dismissed the appeal.
• High Court of Justice: Crane J granted a declaration and awarded £1,500 compensation for delays, but dismissed the challenge to the compatibility of section 32 with article 5.