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Please release me, let me go… (a review of some recent cases tackling the impact
of Human Rights law on decisions relating to the continued detention of
prisoners)
1.
This talk looks at recent cases in which Human Rights issues have impacted
on decisions as to whether and when prisoners should be released back into
the community.
Minimum sentences
2.
In R (on the application of Ross Hammond) v SSHD (2006) 1 AC 603, the
House of Lords considered the question of whether or not paragraph 11(1) of
Schedule 22 to the Criminal Justice Act 2003, which denied a sentencing
judge any possibility of an oral hearing, even when he considered it essential
for the fair determination of an existing prisoner's minimum term, was
incompatible with the right to a fair and public hearing under Article 6 of the
European Convention on Human Rights 1950.
3.
Mr Hammond was a mandatory life prisoner to whom the transitional
provisions in Schedule 22 applied. The SSHD referred his case to the High
Court pursuant to paragraph 3 of Schedule 22. Mr Hammond requested an
oral hearing, which was refused, as paragraph 11(1) provided that the matter
was to be determined by a single judge without an oral hearing. Mr Hammond
sought judicial review, and obtained a declaration to the effect that paragraph
11(1) of Schedule 22 was to be read subject to an implied provision that,
where it was necessary to comply with the existing prisoner's rights under
Article 6(1), the judge had the discretion to order an oral hearing.
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4.
The House of Lords concluded that paragraph 11(1) of Schedule 22, in
stipulating that on a determination under paragraph 3 the High Court judge
must act without an oral hearing, was not ambiguous or unclear, and the issue
as to whether it was incompatible with the prisoner's right to a fair trial turned
wholly on the interpretation and application of Article 6. Their Lordships
proceeded to conclude that:
a. The Convention jurisprudence appeared to support Mr Hammond's
contention that an oral hearing should, where fairness required it, be
held before a minimum term was set for an existing prisoner, and thus
to show that paragraph 11(1) was incompatible with Article 6; and,
b. Whilst there may be many cases in which an oral hearing would not be
required, in those where fairness required such a hearing, paragraph
11(1), in precluding the possibility of an oral hearing at first instance,
was incompatible with the Convention. The fact that a prisoner may
subsequently have a hearing before the Court of Appeal would not cure
that defect.
Recalling prisoners on licence
5.
In Hirst (Appellant) v SSHD (Respondent) & Parole Board (Interested Party)
[2006] EWCA Civ 945, the Court of Appeal examined the question of whether
or not the scheme under section 32 of Crime (Sentences) Act 1997, which
provided for the SSHD to recall to prison life sentence prisoners released on
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licence, either on the recommendation of the Parole Board (section 32(1)) or
his own initiative (section 32(2)), was compatible in principle with Article 5.
6.
Mr Hirst had been convicted of manslaughter and sentenced to life
imprisonment on the basis that he represented a very serious long-term public
danger (he had attacked his landlady with an axe). After over 20 years in
prison he had been released on licence, but because of his behaviour his
licence had been revoked three months later under s.32 of the 1997 Act and he
had been recalled to prison.
7.
Mr Hirst brought judicial review proceedings challenging a number of
different aspects of his recall to custody. He submitted that a decision to
revoke a licence pursuant to section 32, whether taken by the SSHD on his
own, or on the recommendation of the Parole Board, which was not acting in a
judicial capacity, was made by the executive, not by a court, and accordingly
was incompatible with Article 5. Mr Hirst further submitted that he was
entitled to the safeguard of some kind of judicial determination, given that
once he had been released on licence the link between his conviction for
manslaughter and any possible recall was broken.
8.
The Court of Appeal started by noting that section 32 addressed the recall to
prison of an offender sentenced to discretionary life imprisonment, and that
the link between Mr Hirst's conviction and his Article 5 entitlements was not
broken when he was released on licence (applying Weeks v United Kingdom
(1987)). The Court of Appeal went on to conclude that it did not follow that a
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life prisoner released on licence was outside the protective ambit of Article 5,
and that there had to be a sufficient causal connection between the conviction
and the deprivation of liberty at issue.
However, provided that the
circumstances under which the original sentence was imposed were
sufficiently reflected in those that pertained at the time when the recall order
was made, the recall of a prisoner subject to a discretionary life sentence did
not contravene Article 5. Applying that reasoning to Mr Hirst, the Court of
Appeal concluded that his recall was justified in law by the link between the
discretionary sentence of life imprisonment imposed following his conviction
for manslaughter and his behaviour during the short period while he was living
in the community on licence, which gave rise to realistic concerns for public
safety. In conclusion, the Court of Appeal confirmed that the statutory scheme
in s.32 was compatible with Article 5.
9.
Further help as to what circumstances justify a recall of a prisoner on licence
is found in R (on the application of Christopher Wyles v (1) Parole Board (2)
SSHD [2006] EWHC 493 (Admin).
10.
Mr Wyles had been sentenced to life imprisonment for a murder that he
committed whilst under the influence of alcohol.
He was subsequently
released on licence. Whilst on release he was accused of assault causing
grievous bodily harm and was recalled to prison. It was alleged that Mr Wyles
had struck someone in the face with a glass, having seen them become
involved in an altercation with his girlfriend's sister. Mr Wyles was later
acquitted of the alleged offence.
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11.
The Probation Board found that it could not say on the balance of probabilities
Mr Wyles had not carried out the assault. Nevertheless, it concluded that Mr
Wyles’ behaviour was sufficient to warrant his continued detention, as the
circumstances surrounding the assault entailed a failure by him to (a) moderate
his consumption of alcohol; (b) avoid a violent situation; (c) apply common
sense and acquired skills; (d) inform any pertinent authority of the assault after
it occurred.
12.
Mr Wyles applied for judicial review of a decision of the defendant Parole
Board to refuse to order his release on licence. He argued that: his Article 5
rights were engaged; there was insufficient nexus between the index event and
the deprivation of liberty; the Probation Board had overstated the risk; and, in
the circumstances, their decision was disproportionate and excessive.
13.
Mr Justice Goldring disagreed, concluding that the decision of the Probation
Board was neither disproportionate nor irrational, and was within its discretion.
It had been entitled to come to the findings of fact that it did, and to have
regard to those findings when concluding that Mr Wyles’ life sentence could
not be safely managed in the community because he posed a risk to the public
if released.
14.
Finally, in R (on the application of Paul Martin Broadbent) v Parole Board
[2005] EWHC 1207 (Admin), Mr Justice Stanley Burnton considered the
question of whether or not a charge and pending prosecution alone could,
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without more evidence, justify a conclusion by the Parole Board that there was
a risk of re-offending.
15.
Mr Broadbent, a long term prisoner, had been released on licence, conditional
on his not committing an offence. During his release, he was arrested and
charged with the offence of conspiracy to supply a controlled drug. He denied
the charge and a trial date was fixed. Mr Broadbent was recalled to prison for
being in breach of his licence condition.
He was subsequently granted
conditional bail by the Crown Court, and it was not contended by the
prosecution that there was a risk of his re-offending. However, by reason of
the revocation of his licence, the grant of bail was ineffective. On review of
Mr Broadbent's licence, the Parole Board refused his release on the basis that
there was a risk of re-offending. They also failed to address his requests to be
represented at the hearing by his solicitor. Mr Broadbent applied for judicial
review, arguing that the Parole Board’s conclusions were based on the fact
that he had been charged and was due to be tried, which was insufficient
material on which to base a rational decision.
16.
Dismissing the application, Mr Justice Stanley Burton nevertheless accepted
that the charge and pending prosecution alone could not justify a conclusion
that there was a risk of re-offending, although he went on to note that there
may be undisputed facts surrounding the circumstances of the arrest to which
the Parole Board would be entitled to have regard, and might properly found a
decision to revoke a licence.
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The need for medical treatment
17.
In Mehmet Saydam v Turkey (2006) (Admissibility Decision) Application No.
00026557/04, the European Court of Human Rights (“ECHR”) considered the
issue of whether or not Mr Saydam’s re-incarceration, following a suspension
of his prison sentence to facilitate medical treatment for lung cancer, was in
breach of his rights under Article 3.
18.
Mr Saydam, who had been convicted of drug trafficking, was sentenced to 17
years and six months imprisonment in March 1998. He was diagnosed with
lung cancer in December 2002, and was transferred to an open-farm prison in
order to facilitate his treatment. Following a diagnosis that Mr Saydam was
suffering from chronic obstructive lung disease of a permanent nature, the
Forensic Medicine Institute (“FMI”) held that his continued incarceration
could be life-threatening, and recommended that his sentence be suspended for
a year. The following year, the FMI decided that there were no signs of a
recurrence of Mr Saydam's condition, and he was re-incarcerated. A medical
report produced in February 2005 concluded that Mr Saydam had recovered
from lung cancer and should be kept under medical supervision for five years
due to the small risk of recurrence. Mr Saydam complained to the ECHR that
his return to prison jeopardised his health.
19.
The ECHR began by noting that ill treatment must reach a minimum level of
severity in order to fall within the remit of Article 3, and that Article 3 could
not be construed as requiring member States to release detainees on health
grounds, but did impose an obligation to protect the health of those deprived
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of their liberty by, for example, providing them with medical assistance. The
ECHR held that, given that Mr Saydam had been diagnosed with lung cancer,
and had been released from prison in order to receive medical treatment, it fell
to be determined whether he was fit to serve the remainder of his sentence.
Taking into consideration the fact that Mr Saydam did not claim he had been
deprived of medical care whilst in prison, and that the authorities of the
respondent State had taken all the necessary steps to ensure that he received
adequate treatment for his illness, the ECHR held that his situation did not
attain a sufficient level of severity to fall within the scope of Article 3 and the
application was therefore inadmissible.
20.
Medical issues arose again in Andrew James Drew v UK (2006)
(Admissibility Decision) Application No: 000035679/03, when the ECHR
considered the application of Article 3 to the detention of Mr Drew on the
medical wing of a prison where he was unable to obtain anti-psychotic drugs
to which he had previously responded well.
21.
In November 1999, Mr Drew attacked an individual who was unknown to him
with a knife. He was charged with wounding with intent to cause grievous
bodily harm, and was remanded in custody in prison before being transferred
to a psychiatric hospital. He was diagnosed as suffering from schizophrenia
and, following unsuccessful attempts to treat him with antidepressants and an
anti-psychotic drug, he was prescribed Clozapine, an anti-psychotic drug
licensed for use in cases of treatment-resistant schizophrenia. Mr Drew’s
condition improved.
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sentenced to life imprisonment and was transferred to prison, where no-one
was authorised to prescribe Clozapine. Five days later, Mr Drew's doctor
examined him with a view to seeking his transfer to hospital. His view that
Mr Drew's condition had deteriorated since the administration of Clozapine
had stopped was supported by a second doctor, and the SSHD allowed his
return to hospital eight days after he had been taken to prison.
22.
In considering a claim by Mr Drew, the ECHR concluded that it could not be
said that his detention on the prison medical wing for eight days without
effective access to medical treatment reached the threshold of severity
required by Article 3.
Conclusion
23.
As has been seen, challenges to decisions relating to the release of prisoners
on Human Rights grounds continue to be made with a mixture of success. It is
difficult to conclude this talk with any meaningful message for the future, save
that, given the time that prisoners have on their hands, and the sense of
injustice that, rightly or wrongly, often arises from incarceration, many more
such challenges may be expected in the future.
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