| PRISONS – Prisoners' rights — Release on licence — Prisoners serving long-term determinate sentences — Power conferred on Parole Board to determine early release — Home Secretary retaining power to reject Parole Board recommendation in case of long-term prisoners with sentence exceeding 15 years — Whether right to seek early release within ambit of right to liberty — Criminal Justice Act 1991 (c 53), ss 35 © Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
R (Black) v Secretary of State for Justice [2008] EWCA Civ 359; [2008] WLR (D) 114
CA: May, Latham and Moore-Bick LJJ: 15 April 2008
S 35(1) of the Criminal Justice Act 1991, giving the Secretary of State power to override a Parole Board recommendation for the release on parole of a prisoner serving a sentence of more than 15 years, was not compatible with art 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Court of Appeal so held on an appeal by Wayne Thomas Black from the dismissal by Kenneth Parker QC, sitting as a deputy high court judge on 12 July 2007, of his application for judicial review of a decision by the Secretary of State to refuse to grant him parole despite a recommendation from the Parole Board.
Art 5(4) provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
LATHAM LJ said the provisions applied only to prisoners sentenced to more than 15 years’ imprisonment between 1991 and 2003. The 1991 Act provided that after a long-term prisoner had served one-half of his sentence “the Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence.” The appellant was serving a total of 24 years’ imprisonment imposed in 1995 for false imprisonment, kidnapping, robbery and attempted escape. The Parole Board had recommended his release in May 2006 but the Secretary of State did not accept the recommendation on the ground that there was too high a risk he would reoffend. Convention jurisprudence draw a clear distinction between decisions depriving a person of his liberty made by an administrative body on the one hand and a court on the other: De Wilde, Oms, Versyp v Belgium (No 1) (1971) 1 EHRR 373. The appellant argued that in relation to the decision on his release on parole he was entirely dependent on an executive decision, no different from the kind of decision the courts had already held to be incompatible with the Convention in the case of life prisoners. His Lordship distinguished R(Clift) v Secretary of State for the Home Department [2007] 1 AC 484 and followed R (Johnson) v Secretary of State for the Home Department [2007] 1 WLR 1990. A prisoner serving a determinate sentence was entitled to have the lawfulness of his detention determined by a court. It had been assumed that the Parole Board was a sufficiently independent body to be compliant with art 5(4). S 35 of the 1991 Act did not comply because it left the decision to release in the hands of the executive, and was therefore capable of being arbitrarily applied, which was the mischief at which art 5(4) was aimed. The court would apply the domestic law in refusing to free the prisoner, but make a declaration of incompatibility in relation to S 35.
MOORE-BICK and MAY LJJ agreed.
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