Whiston, R (on the application of) v Secretary of State for Justice

Recall from a home-detention-curfew licence during the custodial term of a determinate sentence does not, without more, create a fresh deprivation of liberty requiring judicial review under article 5(4). The decisive question is whether the prisoner’s restricted liberty has broken the link between continued detention and the original sentence.

A compulsory electronically monitored curfew, available only before automatic release and revocable when monitoring fails even without breach, is a modified means of serving the original sentence. Recall restores ordinary custody and remains justified by that sentence. The required article 5(4) supervision is therefore incorporated in the sentencing process. The conclusion depends on the nature, quality and purpose of the licence; it does not decide every recall before expiry of a custodial term.

The appellant was serving an 18-month sentence for robbery. During its custodial term he was released under section 246 of the Criminal Justice Act 2003 on a home-detention-curfew licence. The Secretary of State recalled him under section 255 when his whereabouts could no longer be electronically monitored. He was recalled before the date on which he would have been automatically released on licence.

Mr Justice Walker rejected the judicial-review claim without a hearing, consistently with two earlier High Court decisions, and granted permission to appeal. The appeal concerned whether recall without Parole Board or other judicial review infringed article 5(4) of the Convention and, contingently, article 6.

1. Appeal dismissed. The court held that the recall did not engage article 5(4) of the Convention. The appellant’s detention remained the lawful execution of the determinate sentence imposed by the sentencing court.

2. The basic article 5 distinction is between detention for a court-fixed term and detention whose duration has been passed to the executive. Judicial supervision is incorporated in the original sentence in the former case. Article 5(4) requires judicial review where the link between ongoing detention and its original justification has been lost.

3. Whether recall creates a fresh deprivation of liberty depends on the nature, quality and purpose of the liberty conferred. Although conditional liberty can be sufficient to engage article 5(4), a section 246 home-detention-curfew licence is closely integrated with the custodial sentence. It is compulsory, heavily restrictive, time-limited to the custodial term and may be revoked if electronic monitoring cannot continue even where the prisoner has complied with every condition.

4. That licence is a modified means of serving the original sentence, akin to a different form of custody. Recall restores the primary means of serving it. The need to establish a new fact before recall does not itself sever the link with the sentence. The court therefore agreed with Benson and McAlinden.

5. The court declined to treat observations in Black about recall from licence as binding on this distinct statutory scheme. It reserved whether another form of licence recall before expiry of the custodial term might engage article 5(4).

6. Article 6 was not engaged because release and recall concerned execution of the custodial sentence. In any event, the court indicated that judicial review, together with the statutory safeguards, would likely have sufficed.

• Court of Appeal (Civil Division): appeal dismissed: [2012] EWCA Civ 1374.
• Administrative Court: Walker J rejected the judicial-review application without a hearing and granted permission to appeal. No citation was stated.