Neutral Citation Number: [2007] EWCA Civ 427
Case No: C1/2006/2022
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD Administrative Court
Mr A Nicol QC (sitting as a Deputy High Court Judge)
CO1652004
Royal Courts of Justice
Strand, London, WC2A 2LL

9th May 2007
Before :

LORD JUSTICE WALLER
Vice President of the Court of Appeal, Civil Division

LORD JUSTICE BUXTON
and
LORD JUSTICE LLOYD
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Between :

	The Queen on the Application of Johnson	Appellant	
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	The Secretary of State for the Home Department and Anr	Respondents	
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(Transcript of the Handed Down Judgment of
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Kris Gledhill (instructed by Messrs Guile Nicholas, Solicitors) for the Appellant
Steven Kovats and Nicola Greaney (instructed by Treasury Solicitors) for the Respondents

Hearing date : 24th April 2007
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Judgment
Lord Justice Waller : 
1.	This is an appeal from the decision of Andrew Nicol QC, sitting as a deputy high court judge, where he dismissed the claim that the delay in putting Mr Johnson’s case before the Parole Board was a breach of Article 5(4) of the Convention. I can take much of the facts and background from the excellent judgment of the deputy high court judge.
2.	Derrick Johnson was sentenced on 19th May 2000 by the Crown Court at Bristol.  The sentence was 7 years’ imprisonment.  Under the sentencing regime then in force this meant that he was a ‘long-term prisoner’ – see Criminal Justice Act 1991 s.33(5).  A long-term prisoner is entitled to be released on licence after he has served two thirds of his sentence – Criminal Justice Act 1991 s.33(2).  In Mr Johnson’s case that would have been on 2nd August 2004.  However, after he had served one half of his sentence as a long-term prisoner he was entitled to be released on licence, if the Parole Board so recommended – Criminal Justice Act 1991 s.35(1).  As originally enacted the statute gave the Secretary of State a discretion to release such a prisoner on the recommendation of the Parole Board. However a combination of s.50 of the 1991 Act and The Parole Board (Transfer of Functions) Order 1998 SI 1998 No. 3218 mean that in the case of a prisoner (such as Mr Johnson) who was sentenced to a term of less than 15 years, the Secretary of State is obliged to follow a recommendation of the Parole Board that the prisoner be released on licence.
3.	In Mr Johnson’s case, he was first eligible for parole on 3rd June 2003.  In accordance with usual practice he was sent a form asking whether he wished to be considered for parole some 6 months before this parole eligibility date. He responded positively. However, there then appear to have been delays in assembling the dossier for the Parole Board. It is not necessary to examine the exact reasons for the delay. But, whereas a decision by the Parole Board would normally be taken in advance of the parole eligibility date, in Mr Johnson’s case that did not happen. It still had not happened when this claim applying for permission to apply for judicial review was lodged on 14th January 2004, nearly eight and a half months after the eligibility date.
4.	On 20th January 2004 Collins J. directed an urgent hearing of the application for permission. On 23rd January 2004, the application was adjourned and the Respondents undertook to consider the application for parole as soon as practicable. On 13th February 2004, the Parole Board recommended Mr Johnson’s release and he was released on 23rd February 2004. On 25th February 2004 Sullivan J. refused permission on the basis that the remedy which had been sought (consideration of the parole application) had already taken place and because the claim for damages could not succeed as the law then stood.
5.	At about this time the case of R (West) v Parole Board; R (Smith) v Parole Board [2005] UKHL 1 [2005] 1 WLR 350 was making its way to the House of Lords. When Mr Johnson sought to pursue his application for permission to apply for judicial review in the Court of Appeal, Scott Baker LJ on 15th July 2004 adjourned the application pending a decision in West and Smith. Judgment was given by the House of Lords on 27th January 2005. Thereafter Wall LJ gave permission to apply for judicial review on 8th November 2005.  It was that claim which was dismissed on 11th July 2006.  Sir Paul Kennedy granted permission to appeal on 9th November 2006.
Article 5 ECHR
6.	Article 5 of the Convention, so far as material to the present case, provides:
‘(1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law;
(a)	the lawful detention of a person after conviction by a competent court; …
(4) 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 his detention is not lawful.
(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation’

7.	Mr Gledhill, on behalf of the Claimant, has always acknowledged that any delay in arranging the first consideration of his client’s application for parole would not amount to a violation of Article 5(1). It is accepted that Mr Johnson was convicted by a competent court and was deprived of his liberty in accordance with a procedure prescribed by law. His detention was still pursuant to the sentence of imprisonment which that court had imposed. Mr Gledhill argued before the deputy high court judge and has argued on the appeal, however, that there has been a breach of the obligation to determine speedily the lawfulness of Mr Johnson’s detention, having regard to the delay after the parole eligibility date. Thus he argues that there has been a breach of Article 5(4) and that such a breach brings into play Article 5(5), so that Mr Johnson has an enforceable right to compensation.    
8.	The deputy high court judge decided that there was no infringement of Article 5(4) and did not thus address what compensation Mr Johnson might be entitled to if there was a breach, or which of the respondents would be responsible for providing that compensation.  It is right to say that the Parole Board could not make a decision until the Secretary of State had referred Mr Johnson’s case to it – see Criminal Justice Act 1991 s.35(1) and thus the Parole Board would suggest that the fault lies with the Secretary of State.  But if we were to reverse the deputy high court judge as to whether there was a breach of Article 5(4), it would be necessary for the matter to be remitted on the compensation issue unless a compromise could be reached.
The functions of the Parole Board
9.	As I have said, the Parole Board can only make a decision once the case is referred to it.  Once the case is referred to it the Parole Board must consider whether to recommend early release.  In circumstances where prisoners have been released, the Parole Board may also consider whether to recommend recall of prisoners and, where prisoners are recalled for being in breach of their licence, it will be for the Parole Board to consider whether the licence should be revoked and whether the recall was justified.
10.	The Home Secretary can give directions to the Parole Board as to matters which it is to take into account and, in giving directions, the Secretary of State must have particular regard to (a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation – Criminal Justice Act 1991 s.32(6).  The Secretary of State has given such directions, paragraph 1 of which says:-
“In deciding whether or not to release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable.  This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision which might help the rehabilitation and so lessen the risk of re-offending in the future.  The Board shall take into the account that safeguarding the public may often outweigh the benefits to the offender of early release.”
Analogy with those serving indeterminate sentences
11.	The starting point for Mr Gledhill’s argument, both before the deputy high court judge and before us, was the position in relation to a person serving an indeterminate sentence, e.g. “an automatic life sentence” under the regime established by the Crime (Sentences) Act 1997 s.2.  The position of the automatic life prisoner was considered by the Court of Appeal in R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770 [2002] 1 WLR 3284.  Under the 1997 Act a life sentence had to be imposed on a person convicted of a serious offence if they had previously been convicted of another (listed) serious offence and there were no exceptional circumstances. On sentencing such a person the court must fix the ‘tariff’ i.e. the  period that must be served by the prisoner before he could be considered for release on licence by the Parole Board. By s.28(7) the life prisoner could require the Secretary of State to refer his case to the Parole Board at any time after he had served the tariff part of the sentence.  The policy of the Secretary of State was to refer cases to the Parole Board approximately six to nine months in advance of the expected hearing.  On receipt of the reference, the Board instituted a process that depended on the hearing date fixed by them.  The policy of the Board and of the Secretary of State was that hearings were only to be scheduled for a date after the expiry of the tariff period, and under the policy the gap between the end of the tariff period and the hearing date would vary from case to case for two reasons.  Firstly, the Secretary of State had a policy of referring cases to the board in quarterly batches.  Secondly, the Board only scheduled hearings within the resources available to it.  The shortage of personnel dictated that in principle all cases pending at a particular prison should be heard at the same time by the same panel.  The complaint of Mr Noorkoiv was that his application for parole was only heard some weeks after the end of the tariff period.  The Court of Appeal rejected an argument that his continued detention was a violation of Article 5(1).  It reasoned that the original life sentence continued to be a sufficient justification under Article 5(1)(a).  However, so far as Article 5(4) was concerned, the Court of Appeal found that there was a violation.  The passage cited from the judgment of Lord Woolf CJ by the deputy judge puts the matter succinctly.
“The fixing of the tariff period determines when a prisoner has a right to have the question of his release considered by the Parole Board, but the expiry of the tariff period does not, by itself, make the detention unlawful.  The detention is still lawful detention ‘after conviction by a competent court’ and accordingly detention which complies with Article 5(1)(a).  It is, however, detention from which, under both domestic legislation and Article 5(4), on the expiry of the tariff period, the State is required to release the prisoner unless he constitutes a danger to the public (having given the prisoner an opportunity to establish that this is the position).  Whether the prisoner does constitute a danger is a question which, again under both domestic legislation and Article 5(4), the Parole Board can determine.  This has to be done speedily.  Otherwise the State will contravene Article 5(4) and be in breach of the duty it owes to a prisoner under domestic law.”
12.	Mr Gledhill argued before us as he argued before the deputy judge that there is a parallel between Mr Noorkoiv’s situation and Mr Johnson’s.  He submitted that the tariff part of Mr Noorkoiv’s sentence was equivalent to the first half of Mr Johnson’s sentence.  He submitted that just as the Parole Board were bound to consider whether Mr Noorkoiv was a danger to the public at the end of the tariff period, so in the case of Mr Johnson the Parole Board would be bound to consider whether Mr Johnson remained a danger to the public and, if not, recommend his release.
13.	There is one distinction between a prisoner serving a life sentence and a long term prisoner to which I should make reference at this stage.  In relation to a determinate sentence such as that passed on Mr Johnson, there is no express statutory obligation on the Secretary of State to refer the matter to the Parole Board once Mr Johnson has served half his sentence.  That is to say there is no equivalent to s.28(7), applicable in the life prisoner case under the 1997 Act.  However, it is the practice of the Secretary of State, set out in chapter 5 of Prison Service Order 6000 to invite determinate sentence prisoners to apply for parole six months ahead of their parole eligibility dates, thereafter annually and there is no doubt that when passing sentence the judge is required to use very similar words to those used when passing a discretionary life sentence.  In the long term prisoner case the words required to be used are “your case will not be considered by the Parole Board until you have served at least half that period in custody . . .”.  In the discretionary life case, having specified the tariff period, the sentencer is required to say “that means that your case will not be considered by the Parole Board until you have served at least the [tariff] . . .”.  In my view there is unlikely to be a distinction so far as Article 5(4) is concerned between a statutory requirement for a case to be referred to the Parole Board and an established practice of the Secretary of State to refer matters to the Parole Board.
Does the fact that a sentence is “determinate” make any difference?
14.	Mr Kovats, on behalf of the Secretary of State, and Ms Greaney, on behalf of the Parole Board, rest their submissions on the basis that there is a fundamental distinction as far as Article 5 is concerned between “determinate” and “indeterminate” sentences.  They submit that what the Convention is concerned with is the question whether a sentence is arbitrary.  If a sentence is arbitrary then it would be unlawful and Article 5(4) will apply to require the lawfulness of a prisoner’s detention to be decided speedily by a court.  Where a life sentence has been imposed the Convention thus requires that sentence to be kept under review so that it does not become arbitrary.  Contrast that, submit Mr Kovats and Ms Greaney, with a determinate sentence which is for a fixed period of years, and cannot be said to be arbitrary.  Thus, it is submitted, Article 5(4) is complied with when the sentence is passed.
15.	The deputy judge thought that the above submissions received powerful support from the decision of the House of Lords in R (Giles) v Parole Board [2003] UKHL 42; [2004] 1 AC 1.  I am doubtful whether that case really provides the amount of support which Mr Kovats and Ms Greaney seek to obtain from it.  The case was concerned with a longer than commensurate sentence.  Under the Criminal Justice Act 1991 s.2(2) a court sentencing a person to imprisonment had either to impose a sentence “(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence and one or more offences associated with it; or (b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.”
16.	Mr Giles had been sentenced to a total of seven years’ imprisonment, which the judge had said was a longer than commensurate term, i.e. a s.2(2)(b) sentence.  This meant that he was not eligible for parole until he had served three and a half years of his sentence.  The trial judge had not specified what a commensurate term for the offence would have been but it can safely be assumed that it would have been shorter than the seven years and that the parole eligibility date would have been less than three and a half years.  Mr Giles argued that, under the Convention, he was entitled to have his application for parole considered prior to the eligibility date of three and a half years.  His argument was that the trial judge had considered that a longer term of imprisonment was necessary to protect the public and that under the Convention this assessment of his dangerousness ought to have been kept under review.  So his argument was that because he could not make his application to the Parole Board until he had served three and a half years, his right under Article 5(4) had been violated.  He, too, was arguing that his case was analogous to that of a discretionary life prisoner who, having served his tariff period, would be entitled, by virtue of Article 5(4), to a determination of the lawfulness of the remainder of his sentence.
17.	In the course of his speech Lord Bingham, at paragraph 10, said this:-
“That brings one back to consideration of the core right which Article 5(4), read with Article 5(1), is framed to protect.  Its primary target is deprivation of liberty which is arbitrary, or directed or controlled by the Executive.  In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence.  Since the first offence involved what the sentencing judge described as ‘a savage attack’ and the appellant had threatened further violence against his first victim, the term imposed does not appear in any way excessive.  The sentence left nothing to the Executive, since the Parole Board, whose duty it is to consider release at the half way stage of the sentence, is accepted to be a judicial body . . .”
18.	Lord Bingham’s conclusion was that the sentence passed on the appellant fell squarely within Article 5(1) of the Convention and did not attract the operation of Article 5(4).  Lord Hope, at paragraph 52 put the matter this way:-
“I would hold that the present case falls within the basic rules.  The review which Article 5(4) requires was incorporated in the sentence which the judge passed under sub-section (2)(b).  This is because he fixed the period the sentence which was needed to protect the public from serious harm.  He was able to take this decision in the light of the information before him and, in the exercise of his ordinary powers of sentencing, to decide on the total length of the sentence which in all the circumstances was appropriate.  As he was able to take this decision at the outset, there is no risk that the detention for the minimum period fixed by the sentence will become arbitrary.  The appellant has no further right under Article 5(4) to have his detention for the minimum period fixed by that sentence reviewed judicially.”
19.	Lord Hutton delivered a concurring judgment and Lords Steyn and Scott agreed with Lord Hope and Lord Bingham.  There was some debate before us as to what Lord Hope had in mind when using the words “the minimum period fixed by that sentence”.  Did he have in mind the statutory requirement of release at two-thirds or did he have in mind the right to have the sentence reviewed by the Parole Board at the half way stage?  It seems to me that, consistently with the words of Lord Bingham, he had in mind the half way stage, i.e. the right of review by the Parole Board.
20.	It is important to note that there was no issue before the House of Lords relating to a possible delay in the Parole Board giving consideration as to whether Mr Giles should be released after the expiry of the “minimum period”.
21.	We were, as was the deputy judge, also referred to the House of Lords’ decision R (West) v Parole Board and R (Smith) v ParoleBoard [2005] UKHL 1; [2005] 1 WLR 350. West had been released on licence after serving half of a three year term of imprisonment.  He was a short term prisoner and his release had been obligatory without the need for the decision of the Parole Board.  Smith had been sentenced to six and a half years and was a long term prisoner.  He had been released at the two-thirds point of his sentence, i.e. without any recommendation from the Parole Board.  Both men had been recalled to prison following recommendations to that effect from the Parole Board.  A prisoner who is recalled to prison from being on licence may make representations with respect to his recall which the Secretary of State must refer to the Parole Board.  If the Parole Board recommends release on licence, then the Secretary of State must give effect to that recommendation (see the Criminal Justice Act 1991 s.39).  The House of Lords held that the original sentence of the court remains sufficient justification for their recall to detention for the purposes of Article 5(1) but that a revocation decision by the Parole Board did have to meet the standards of Article 5(4).  The House of Lords held that in the circumstances both the common law obligation to act fairly and Article 5(4) required the Parole Board to hold an oral hearing.
22.	Mr Gledhill for Mr Johnson seeks support from the above decision on the basis that it demonstrates that Article 5(4) can have application, even after sentence, in the case of a person sentenced to a determinate period of imprisonment.  Mr Kovats and Ms Greaney submit that West and Smith has very little relevance to the present case since it simply demonstrates that where a prisoner has been released on licence and is recalled,  Article 5(4) will come into play, the prisoner having been at liberty and having his liberty taken away by either a decision of the Parole Board or an Executive decision.
23.	In my view some assistance can be gained from West and Smith in that it demonstrates that one cannot simply say that, in the case of a determinate sentence, Article 5(4) can have no application.  But, that said, there is a material distinction between a prisoner, while in prison, seeking to have his case considered by the Parole Board and a prisoner, who has been released and been at liberty, being recalled and seeking to have the basis on which he has been recalled by the authorities tested as to lawfulness.
24.	The final authority to which reference was made was not available to the deputy judge, being only promulgated on 13th December 2006.  The case R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 2WLR 24 was concerned with the question whether the early release scheme was being operated in a manner which discriminated between long term prisoners who were subject to deportation and those who were not.  The House of Lords held that although the Convention did not require High Contracting Parties to establish a scheme for the early release of prisoners, any provision in domestic law for a right to seek early release fell within the ambit of the right to liberty under Article 5, so that differential treatment between prisoners otherwise than on the merits of their respective cases would give rise to a potential complaint of discrimination under Article 14. As was common ground before us, the fact that the early release scheme fell within the ambit of the right to liberty under Article 5 does not mean that the court was finding any breach of Article 5, let alone Article 5(4).  But, once again, the case supports the view that it cannot simply be said that because a sentence is a “determinate” sentence Article 5(4) can never have any application to it.  The case also emphasises the point that, albeit there may have been no obligation on the United Kingdom to introduce an early release scheme,  once it has done so Article 5 may apply to it.  Thus one sees that in answer to the Secretary of State’s argument in that case that Article 5(4) had no part to play in implementing the sentence before release, Lord Bingham said this:-
“16. This argument is, in my judgment, a mixture of the true and the false.  I would agree that the sentences passed on the respective appellants satisfied Article 5(1)(a) and provided lawful authority for detention of the appellants until such time as, under domestic law, their detention became unlawful. Giles. . . established that a prisoner sentenced to a determinate term of years cannot seek to be released at any earlier time than that for which domestic law is applied.  During the currency of a lawful sentence, Article 5(4) has no part to play.  But the Secretary of State’s argument founders, in my opinion, on the failure to recognise both the importance, in our system, of the statutory rules providing for early release and the close relationship between those rules and the core value which Article 5 exists to protect. 
17.The Convention does not require Member States to establish a scheme for early release of those sentenced to imprisonment.  Prisoners may, consistently with the Convention, be required to serve every day of the sentence passed by the judge, or be detained until a predetermined period or a proportion of the sentence has been served, if that is what domestic law provides.  But this is not what the law of England and Wales provided, in respect of long term determinate prisoners at the times relevant to these appeals.  That law provided for a time at which (subject to additional days of custody imposed for disciplinary breaches) a prisoner must, as a matter of right, be released, and an earlier time at which he might be released if it was judged safe to release him, but as to which he need not be released if it was not so judged.”
25.	That passage recognises, as indeed was recognised in Smith and West that a determinate sentence is, in the modern era, “in reality a composite package”.
Discussion
26.	Mr Kovats and Ms Greaney founded their arguments on labelling the seven year sentence passed on Mr Johnson as a “determinate” sentence.  In one sense the question is whether his sentence was truly “determinate” in the eyes of the Convention.  In none of the cases dealing with determinate sentences has the court been concerned with a situation in which there has been a delay in considering the entitlement of a long term prisoner to parole and it is in that context, and that context alone, that one must consider whether Article 5(4) comes into play.
27.	Mr Gledhill provides an example of what he suggests would be a very unsatisfactory situation if Article 5(4) has no application to the situation that has arisen in Mr Johnson’s case.  Assume a case in which two defendants face a charge which carries a life sentence but defendant A receives a determinate sentence, perhaps a longer than conventional one because the judge feels able to impose such a sentence in the light of that defendant’s record, and assume he fixes that sentence at fourteen years.  Assume defendant B receives a life sentence because of medical evidence as to unpredictable dangerousness, and assume his tariff is set at seven years, based on the determinate term handed out to A.  In the case of the life sentence prisoner B, he has a statutory right to the Secretary of State placing his case before the Parole Board for review at the end of the tariff period of seven years.  In the determinate sentence case, by virtue of the practice adopted by the Home Secretary, prisoner A also has the right to review by a Parole Board at the half way stage, i.e. after seven years.  If in both cases the Parole Board delayed for a period of months, or simply failed to make a decision, the result of the judge’s conclusion being right would mean that prisoner A, who received the determinate sentence, would have no right to compensation for a breach of Article 5(4), whereas prisoner B, the life-sentenced prisoner, would have a remedy.
28.	I do not find it a satisfactory answer to that evident incongruity that it can be said in relation to prisoner A, in receipt of a determinate sentence, that he is not without remedy because he could apply for judicial review and obtain an order for hearing by the parole board of his case and he could in any event complain to the Prisons and Probation Ombudsman.  Those remedies are equally available to prisoner B.
29.	One reason why prisoner B has a remedy for a breach of Article 5(4) is because there is a risk, unless the sentence is kept under review, of his sentence becoming arbitrary.  That is a general obligation under the Convention.  But if there is a delay in hearing the application to the Parole Board of prisoner B, or differences between the times when life sentence prisoners are having their applications to the Parole Board considered, there is a different form of arbitrariness which was recognised by the Court of Appeal in R (Noorkoiv) v Parole Board.  So far as delay in an application coming before the Parole Board is concerned, or so far as there being delays from which it follows that different prisoners with determinate sentences are having their hearings before the Parole Board dealt with at different periods of time after their eligibility date, that same arbitrariness is present in the determinate sentence prisoner context.  It is that arbitrariness which, in Convention terms, would, in my view, render the sentence unlawful, and falls within the ambit of Article 5(4).  There was in this case an unjustified and indeed arbitrary period of delay of eight and a half months.  If Mr Johnson can demonstrate that at an earlier consideration by the Parole Board he would have been released, it would seem to me to follow that his detention for some period was arbitrary, unjustified and therefore unlawful.  It would furthermore seem to me that under Article 5(4) Mr Johnson was entitled to have his case considered by the Parole Board “speedily” so that his sentence did not become “arbitrary”.
30.	I would allow the appeal and remit this matter for consideration as to what compensation is due to Mr Johnson under Article 5(5) unless that aspect can be disposed of by agreement.
Lord Justice Buxton :		I agree.
Lord Justice Lloyd:		I also agree.