O'Connell, R (on the application of) v The Parole Board & Anor

For the purposes of Article 5(4) of the European Convention on Human Rights, an extended sentence under section 227 of the Criminal Justice Act 2003 is a determinate sentence. The sentencing judge gives lawful authority for detention throughout the appropriate custodial term. Eligibility for release at the halfway point does not create a fresh legal basis for detention or require a separate judicial determination of its lawfulness under Article 5(4).

The relevant distinction is between administrative implementation of a determinate sentence and the fixing or extension of detention beyond the tariff in an indeterminate sentence.

The appellant received an extended sentence under section 227 of the Criminal Justice Act 2003, comprising a two-year appropriate custodial term and a three-year extension period. The Parole Board declined, without a hearing, to direct release at the halfway point.

The case had earlier been heard with conjoined claims in R (Brooke & others) v The Parole Board [2007] EWHC Admin 2036. On 13 November 2007, the Divisional Court held that Article 5(4) applied after half the appropriate custodial term, but rejected an entitlement to an oral hearing. The Secretary of State appealed on the Article 5(4) issue, and the appellant cross-appealed on the oral-hearing issue. The central question was whether detention during the second half of the custodial term remained authorised by the original sentence or required a fresh legal determination.

1. Secretary of State’s appeal allowed; appellant’s appeal dismissed. The question of an oral hearing was not determined because Article 5(4) did not apply and, in any event, the appellant had been released.
2. An extended sentence under section 227 is a determinate sentence. The sentencing judge gives lawful authority for the prisoner’s potential detention throughout the whole appropriate custodial term. The halfway-stage decision whether to direct release does not replace that authority with a fresh legal basis for detention.
3. The Divisional Court’s reasoning that Article 5(4) was engaged because it had a useful function in preventing arbitrariness was inconsistent with R (Black) v Secretary of State for the Home Department [2009] UKHL 1. That decision established the relevant distinction between administrative implementation of a determinate sentence, including early or conditional release, and fixing the tariff or determining post-tariff detention in an indeterminate sentence.
4. The court rejected the proposed assimilation of section 227 sentences to indeterminate sentences. Although section 247 of the Criminal Justice Act 2003 has affinities with early-release provisions for indeterminate sentences, a section 227 prisoner has a prescribed latest release date. That feature, and the determinate character of the sentence, were decisive.
5. Van Droogenbroeck [1982] 4 EHRR 443 did not assist because the Strasbourg court had distinguished the unusual Belgian regime from conditional release after a court-imposed determinate term. R (Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC 1 supported the conclusion that Article 5(4) review is incorporated in a determinate sentence where the sentencing judge fixes the period required to protect the public. R (Sim) v Parole Board [2004] QB 1288 and R (Smith and West) [2005] 1 WLR 350 concerned materially different recall circumstances.

• Court of Appeal (Civil Division): The Secretary of State’s appeal on Article 5(4) was allowed. The appellant’s appeal on the oral-hearing issue was dismissed or rendered unnecessary by the Court’s conclusion and the appellant’s release.
• Divisional Court: On 13 November 2007, Latham LJ and Simon J held that Article 5(4) applied after half the appropriate custodial term, but rejected an entitlement to an oral hearing. The statutory test under section 247(3) was left undecided as academic.
• Earlier Divisional Court proceedings: In the conjoined proceedings reported as R (Brooke & others) v The Parole Board [2007] EWHC Admin 2036, Hughes LJ and Tracey J held that the Parole Board lacked the required independence. The Secretary of State’s appeal on that issue was dismissed, reported at [2008] 1 WLR 1950.