| PRISON — Prisoners’ rights — Release on licence — Prisoner serving 30-month determinate sentence — Secretary of State failing to exercise discretion to release on licence as soon as prisoner eligible — Whether infringement of prisoner’s right to review of lawfulness of detention not to have decision to release on licence made by judicial body — Criminal Justice Act 1991, s 34A (as inserted by Crime and Disorder Act 1998, s 99) — Human Rights Act 1998, Sch 1, Pt I, art 5(4)
Mason v Ministry of Justice [2008] EWHC 1787 (QB); [2008] WLR (D) 265
QBD: Cranston J: 28 July 2008
The discretion to release a prisoner on home detention curfew could lawfully be exercised by the executive. An individual’s right under art 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms, to take proceedings by which the lawfulness of his detention could be decided, was adequately protected by the possibility of review of decisions of the executive on general public law principles.
Cranston J so held in the Queen’s Bench Division, when deciding a preliminary issue in a claim by the claimant, John Mason, for damages for breach of his right under art 5(4) of the Convention to have the lawfulness of his detention decided by a judicial body.
The claimant was a prisoner serving a determinate sentence of imprisonment of 30 months. The Secretary of State for the Home Department had a discretion to release him on licence (home detention curfew) pursuant to s 34A of the Criminal Justice Act 1991 once he had served one-half of his sentence. The process of assessing him for home detention curfew did not begin until after he was eligible, and then there was a delay in the decision. The claimant argued that he suffered a loss of liberty since the ultimate decision to grant home detention curfew demonstrated that he would have been released earlier had there not been delay. The court considered by way of preliminary issue whether, in order to comply with the requirements of art 5(4) of the Convention, the discretion to release on and recall from home detention curfew needed to be exercised on the recommendation of a judicial body such as the Parole Board.
CRANSTON J said that determinate sentences divided into the element which by legislation must be served in custody up to the half-way point, and the element beyond that where in most cases continued detention was only justified by continuing risk if the prisoner were released. Before the half-way point, namely that part which must be served in custody, the review of lawfulness required by art 5(4) of the Convention occurred with the decision of the original sentencing court, although under the home detention policy release might in some cases be possible. Beyond the half-way point the protection of art 5(4) was accorded differently so that decisions on continued custody were not placed in the hands of the executive but were on the recommendation of a judicial body, namely the Parole Board. Home detention curfew operated during the part of a sentence when custody was compulsory before the point at which a prisoner under the statutory provisions would be released or become eligible for release on recommendation of the Parole Board. The review of lawfulness of detention had up to that point already been conducted by the sentencing court. Release or recall under the home detention policy was simply the administrative implementation of the original sentence, the means by which the sentence was to be served. The absence of a judicial body in the making of decisions on eligibility for home detention curfew did not mean that decisions by the Secretary of State were without control by the courts. There was the possibility of review by the courts for public law error on general public law principles. Art 5(4) did not require more. In the circumstances the claimant had not been unlawfully detained during any part of that compulsory part of his 30-month sentence, up to the half-way point. He may have had a justified grievance regarding delay in the grant of some of the 135 days of home detention curfew which had been a possibility for him under the policy. Possible avenues for complaint were through the complaints and appeal procedure established under Prison Service Order 6700 (“Home Detention Curfew”), or through an urgent application for judicial review.
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