Youngsam, R (on the application of) v The Parole Board & Anor

Article 5(4) of the European Convention on Human Rights does not apply, save perhaps in unusual circumstances, when a determinate-sentence prisoner is recalled during the sentence. Judicial supervision of the lawfulness of detention for the whole fixed term is incorporated in the original sentence. This applies whether release on licence was discretionary or mandatory.

A broadly expressed ruling may form the binding ratio of a decision although the case could have been resolved on a narrower ground. The inquiry focuses on the justification actually adopted by the court, read with the facts, issues, authorities considered, clarity of reasoning and subsequent treatment. A lower court must apply a clearly stated principle forming the ratio of a higher court’s decision.

The appellant was serving a determinate sentence and had been released on licence as of right. He was recalled to custody and challenged the time taken by the Parole Board to list his recall hearing.

Turner J dismissed his judicial review claim in [2017] EWHC 729 (Admin). The judge held that article 5(4) of the European Convention on Human Rights did not apply and that the Parole Board had not breached its common law duty to act within a reasonable time.

The appeal raised whether the Supreme Court’s broad ruling in R (Whiston) v Secretary of State for Justice [2014] UKSC 39 was binding ratio or obiter, and whether the delay was unlawful at common law or under article 5(4).

1. The appeal was dismissed unanimously. The Supreme Court’s ruling in R (Whiston) v Secretary of State for Justice [2014] UKSC 39 formed part of its ratio decidendi. It established that article 5(4) of the European Convention on Human Rights does not apply, save perhaps in unusual circumstances, to a determinate-sentence prisoner recalled during the currency of the sentence.

2. Lord Neuberger PSC had adopted that broad principle as the expressly stated basis for dismissing the appeal in Whiston. Four members of the Supreme Court endorsed his judgment. He had examined the relevant domestic and Strasbourg authorities, confronted the inconsistent treatment of article 5(4) in R (West) v Parole Board, and intended to settle the law. The principle made no distinction between discretionary early release and mandatory release on licence. Lady Hale’s preference for a narrower basis did not permit a lower court to disregard the majority’s reasoning.

3. The subsequent unanimous decision in Brown v Parole Board for Scotland [2017] UKSC 69 expressly affirmed Whiston. That affirmation was a critical part of the reasoning that detention during the custodial term of an extended sentence was authorised by the original sentence. The Court of Appeal was bound by both decisions. R (Stott) v Secretary of State for Justice [2018] UKSC 59 did not undermine them.

4. Etute v Luxembourg was distinguishable. Under Luxembourg law, time spent on conditional release did not count towards the sentence, and revocation required a new decision which caused the outstanding term to be served. By contrast, a prisoner released on licence under United Kingdom law continues to serve the sentence. Etute also did not establish a clear and constant line of Strasbourg authority contrary to Whiston.

5. Leggatt LJ explained that a ruling need not be logically indispensable to the result to form part of the ratio. Alternative sufficient rulings may each be ratio. The starting point is the reasoning given to justify the decision, read with the facts and issues. In an arguable case, identification of the ratio may require evaluation of the clarity, consensus, argument, authorities, subsequent treatment and hierarchical context.

6. The delay ground also failed. The judge had considered the relevant email, and the twelve-week timetable in PSI 30/2014 was directed to prisons, probation providers and NOMS headquarters, not the Parole Board. It did not bind the Board or make departure from the timetable presumptively irrational. The judge was entitled to conclude, in context, that the delay did not breach the common law duty to act within a reasonable time.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court held that Whiston stated a binding ratio excluding article 5(4) during a determinate sentence and upheld the finding that the delay was not unlawful: [2019] EWCA Civ 229.
2. High Court, Queen’s Bench Division (Administrative Court): Turner J dismissed the claim. He regarded the broad principle in Whiston as technically obiter but binding in practice, and found no breach of the common law duty to decide matters concerning liberty without undue delay: [2017] EWHC 729 (Admin).