R v Secretary of State for Justice

Article 5(4) of the European Convention of Human Rights does not ordinarily require a further judicial review of detention during a determinate sentence imposed by a competent court. The required judicial supervision is incorporated in the original sentence.

Accordingly, a prisoner released before the mandatory-release point under a home detention curfew may be recalled under section 255 of the Criminal Justice Act 2003 without a right to Parole Board review. The prisoner remains within the custodial period fixed by the sentencing court.

The appellant received an 18-month determinate sentence. Before reaching the point at which he was entitled to automatic release on licence, he was released early under a home detention curfew under section 246 of the Criminal Justice Act 2003.

The Secretary of State revoked that licence under section 255 because electronic monitoring of the appellant’s whereabouts could no longer be maintained, and recalled him to prison. Section 255 provided reasons and representations, but no Parole Board review.

The Court of Appeal dismissed the judicial-review challenge: [2012] EWCA Civ 1374. The Supreme Court considered whether recall during this discretionary early-release period engaged article 5(4) of the European Convention of Human Rights.

1. The appeal was dismissed. Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Hughes agreed, held that article 5(4) was not engaged by this recall. The appellant remained within the requisite custodial period of a determinate sentence lawfully imposed by a court.

2. The Strasbourg distinction is between a fixed period of detention embodied in a judicial sentence and detention whose duration is entrusted to the executive. For the former, the judicial control required by article 5(4) is ordinarily incorporated in the sentencing decision. A fresh judicial review is required where new issues affect the lawfulness of detention, as may occur with indeterminate or executive-controlled detention, but not merely because the executive administers discretionary early release during a determinate custodial term.

3. A home detention curfew under sections 246 and 253 of the Criminal Justice Act 2003 is discretionary release before the prisoner is entitled to release under section 244. Recall under section 255 may occur because monitoring cannot be maintained, even without breach or an assessment of continuing risk. That practical basis did not alter the fact that the original sentence remained the legal basis for detention. The absence of Parole Board review was therefore Convention-compliant.

4. Lord Neuberger held that R (Smith and West) v Parole Board was per incuriam insofar as it held, or assumed, that article 5(4) applied to recall after release on licence. Its actual common-law fairness ruling remained unaffected. He also rejected Lord Brown’s contrary observation in R (Black) v Secretary of State for Justice as wrong. Those observations went beyond what was necessary to decide this appeal.

5. Lady Hale agreed in the result. She cautioned that the ratio should not extend to prisoners recalled after they have reached mandatory release, where domestic law gives the Parole Board a decisive role and the basis of renewed detention may differ.

• United Kingdom Supreme Court: Appeal dismissed.
• Court of Appeal: The judicial-review challenge was dismissed: [2012] EWCA Civ 1374 .