West v HM Prison Bure

Recall to custody during the extension period of an extended sentence is compatible with Article 5(1) where the statutory scheme makes the licence revocable and permits detention for the balance of that period. The recall retains its causal connection with the original conviction where it serves the sentence’s public-protection purpose.

A specialised parole board may satisfy Article 5(4) of the European Convention on Human Rights if it is independent, can determine the lawfulness of detention, and can order release. A prisoner must identify a defect in the board’s applicable powers or procedures; a habeas corpus claim against the prison governor is not a substitute for challenging the responsible parole board or appealing the original sentence.

Mr West was serving the extension period of an extended sentence imposed in Scotland. He was released on licence after completing the custodial term, but the Parole Board of Scotland revoked his licence after he absconded and failed to comply with reporting and accommodation requirements. He was subsequently held in an English prison for the balance of the extended sentence.

Silber J in the Administrative Court refused his application for habeas corpus. Mr West appealed, contending principally that detention after recall breached Article 5 of the European Convention on Human Rights, that the original extended sentence was unjustified, and that he was entitled to a court’s review of his detention.

1. Appeal dismissed. Lady Justice Rafferty, with whom Lady Justice Black and Lord Justice Maurice Kay agreed, held that the detention was lawful.
2. Under section 26 A(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the licence continued until the end of the extension period unless revoked. Its revocation therefore made Mr West liable to detention for the remaining period. The sentencing judge’s reference to supervision in the community could not override the statutory scheme. Properly read, the sentencing remarks recognised that breach of licence conditions could lead to recall.
3. There was a sufficient causal connection between the Scottish conviction and recall. The extended licence was a public-protection measure which included the possibility of recall. This was consistent with Weeks v the United Kingdom [1987] 10 EHRR 293 and with the reasoning in R(Sim) v the Parole Board [2003] EWHC 152 (Admin). Stafford v United Kingdom [2002] 35 EHRR 32 did not assist because Mr West was recalled while on licence for the original offence, rather than detained for a later, unrelated offence.
4. The challenge to the imposition of the extended sentence was an impermissible attempt to appeal its merits through habeas corpus proceedings against the English prison governor. In any event, section 210 A of the Criminal Procedure (Scotland) Act 1995 required a prospective assessment of risk of serious harm. It did not require proof that past offending had caused serious harm.
5. Article 5(4) was not breached. A parole board can be a court for that purpose if it has the requisite independence and power to determine lawfulness and order release. Mr West identified no non-compliant aspect of the Parole Board of Scotland’s current powers or procedure. Any challenge lay to that Board, not to the Governor of HMP Bure.

• Court of Appeal (Civil Division) — dismissed Mr West’s appeal in [2013] EWCA Civ 604.
• Administrative Court (Silber J) — on 7 August 2012 refused Mr West’s application for habeas corpus.