Foster v The Secretary of State for Justice [2015] EWCA Civ 281

[2015] EWCA Civ 281Case No C1/2013/2349
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Lady Justice Rafferty & Mr Justice Kenneth Parker
CO/12094/2012
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 26 th March 2015
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR BRIAN LEVESON)LORD JUSTICE JACKSONLADY JUSTICE BLACK D.B.E.
Between
ASHLEY FOSTERAppellantTHE SECRETARY OF STATE FOR JUSTICERespondent
(Transcript of the Handed Down Judgment ofDTI Global A DTI Global Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Hugh Southey Q.C.(instructed by Hickman & Rose) for AppellantNathalie Lieven Q.C.(instructed by Treasury Solicitor) for RespondentHearing Hearing date : 23 February 2015JudgmentSir Brian Leveson P :
[1]This is the latest in a line of cases concerning the rights of prisoners to an oral hearing prior to an adverse decision affecting their prospective liberty or the conditions in which they are detained. This case concerns the recall to prison of a prisoner released on Home Detention Curfew (HDC) and is based on the contention that the common law duty of fairness requires that the prisoner is provided with the opportunity of an oral hearing to advance submissions as to why he should not have been recalled.[2]The Divisional Court (Rafferty LJ and Kenneth Parker J) dismissed the application for judicial review: see [2013] EWHC 1951 (Admin). Leave to appeal was initially refused on paper by Treacy LJ but subsequently granted by Elias LJ in the light of the possible arguments based on a decision in Osborn and Booth v Parole Board [2014] AC 1115 and the then awaited further judgment of the Supreme Court in Whiston v Secretary of State for Justice (now available: [2014] 3 WLR 436).

The Statutory Regime

[3]The legislation permits release from prison under two different types of licence. At the relevant time, the first arose following sentences in excess of 12 months imprisonment and is an entitlement to release, on licence, at the conclusion of the custodial term of one half of the sentence: s. 244 of the Criminal Justice Act 2003 (“the 2003 Act”). Subsequent to these proceedings, this regime has become far more extensive: see ss. 1 and 2 of Offender Rehabilitation Act 2014 inserting s. 256AA into the 2003 Act and The Offender Rehabilitation Act 2014 (Commencement No 2) Order 2015.[4]The second licence is discretionary and allows the Secretary of State (originally the Home Secretary, now the Secretary of State for Justice, hereafter referred to as the Secretary of State) the discretion to release on licence for part of and during the custodial term. This is covered by s. 246 of the 2003 Act subsequently amended by the Legal Aid, Sentencing and Punishment of Offender Act 2012 (“LASPO 2012”). At the date of the recall, however, the provision was in these terms:
“(1) Subject to sub-sections (2) to (4), the Secretary of State may – a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period . . . . (2) Sub-section (1)(a) does not apply in relation to a prisoner unless – a) the length of the requisite custodial period is at least six weeks, and b) he has served – i) at least four weeks of that period, and ii) at least one-half of that period.” a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period . . . . a) the length of the requisite custodial period is at least six weeks, and b) he has served – i) at least four weeks of that period, and ii) at least one-half of that period.”
[5]Section 250(5) provides that the licence pursuant to s. 246 must be subject to a curfew condition in accordance with s. 253 the relevant part of which (prior to amendment by LASPO 2012) provided: “(1) . . . a curfew condition is a condition which – a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified . . . and b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified. (2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force). (3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244. ” a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified . . . and b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.[6]As sub-section (3) makes plain, the curfew condition (which usually specifies the offender’s home) cannot be made to operate beyond the period of the custodial term when the prisoner would in any event be entitled to be released although, for the purposes of accuracy, it is clear that release on licence of post-custodial term prisoners may exceptionally have a curfew condition: see s. 250(4)(b) of the Act; art 3(2)(b) of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005/648, PC 29/2007 Annex A and PSO 6000 Chapter 14. This exception does not apply in the present case.[7]The Secretary of State may revoke an HDC licence and recall the prisoner to prison by one of two different statutory routes. First, s. 254 of the 2003 Act gives the Secretary of State a general power to revoke any licence and recall the licensee. If this power is exercised, the prisoner may be automatically released under s.255B(1) but at any time before he is released, he may make representations whereupon, pursuant to s. 255B(4), his case must be considered by the Parole Board. If under s. 255A the prisoner does not fall into the automatic release provisions in s. 255B then no automatic release is available and release is determined by the Parole Board or Secretary of State in accordance with s. 255C: these provisions were inserted by s. 29(2) Criminal Justice and Immigration Act 2008. It is then the responsibility of the Board to determine whether the recall should be confirmed.[8]Second, s. 255 of the 2003 Act gives the Secretary of State a specific power to revoke a licence issued under s. 246. This power can only be exercised when the curfew condition is in force, that is, until the point when the prisoner would be entitled to release on licence as of right under s. 244. There is no right of review of the s.255 power by the Parole Board but the statute does provide procedural safeguards. At the relevant time, this power and the safeguards were in these terms:(1) If it appears to the Secretary of State, as regards a person released on licence under section 246— (a) that he has failed to comply with any condition included in his licence, or (b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence, the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section.(2) A person whose licence under section 246 is revoked under this section— (a) may make representations in writing with respect to the revocation, and (b) on his return to prison, must be informed of the reasons for the revocation and of his right to make representations.(3) The Secretary of State, after considering any representations under subsection (2)(b) [sic]or any other matters, may cancel a revocation under this section. LASPO 2012 amended s. 255(3) to make it clear that representations are made under s. 255(2)(a) and not s. 255(2)(b); there have since been further amendments as a consequence of the Offender Rehabilitation Act 2014. (a) that he has failed to comply with any condition included in his licence, or (b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence, (a) may make representations in writing with respect to the revocation, and (b) on his return to prison, must be informed of the reasons for the revocation and of his right to make representations.[9]The Secretary of State’s discretion to release on HDC under s. 246 is exercised by delegates, applying mandatory guidance issued on his behalf. Thus, all prisoners released on HDC must have a licence that includes standard curfew conditions. The curfew is electronically monitored and typically requires that between 7.15 p.m. to 7.15 a.m. every day, the released prisoner is required to remain at the curfew address. Condition 9 states:
“Your compliance with the conditions of the [HDC] will be monitored by SERCO as the supplying company. You must provide the supplier with access to the curfew address to install and check the monitoring equipment and electronic tag. Such visits will be made during the curfew hours but not between midnight and 6.00 a.m. However, the supplier may visit the curfew address between midnight and 6.00 a.m. in order to investigate a reported violation.”
[10]One other aspect of the regime then in force requires mention. At the material time, when prisoners have been recalled to custody under s. 255(1)(a), the policy of the Secretary of State was that they were presumed to be unsuitable for HDC should they come to serve sentences in the future. Thus, Prison Service Instruction 2006/31 thus provided:
“[Prisoners who have been recalled under s. 255(1)(a)] are statutorily eligible to be considered for HDC but have demonstrated, by their behaviour on licence, doubts about their ability to comply with licence conditions. The Home Secretary has therefore decided that in order to maintain public confidence such prisoners must be presumed unsuitable for HDC unless there are exceptional circumstances.” [Emphasis in the original]
I assume that this policy was adopted by the Secretary of State.

The Facts

[11]The background facts are set out in detail in the judgment of Kenneth Parker J and can be summarised briefly. Having been sentenced to a term of 3½ years’ imprisonment for an offence of possession of a controlled drug with intent to supply, the appellant was only entitled to automatic release (after he had served half the sentence) on 14 December 2012. On 2 August 2012, however, the Secretary of State for Justice authorised his release on HDC; this was on conditions which included requirements that he comply with a curfew and that he co-operate with electronic monitoring of the curfew.[12]On 21 August, Serco (responsible for the monitoring of the equipment) issued a warning letter following a tamper violation alert: there was a kink in the strap of which the appellant said he was unaware and it was replaced. Kenneth Parker J explained the account submitted to the Secretary of State in relation to the next incident in these terms (at [18]):
“A PID tamper alert was first recorded at 5.20 pm on 23 August 2012, and the position remained the same by 7.15 pm (the beginning of the next curfew period). Serco telephoned the Claimant for an explanation. He said that he was at the curfew address and that the tag was around his ankle. Serco decided to visit the Claimant to check that the equipment was in working order. The Serco officer arrived at the curfew address at 43 minutes after midnight on 24 August 2012. This was within the curfew period and to be expected, given that investigation of a suspected tampering with the tag was exceptionally provided for between midnight and 6 am. The Serco officer explained to the Claimant the reason for the late visit and also the consequences if the Claimant did not allow the officer to check the equipment. The Claimant indicated that the officer should return the next morning. The officer rejected that indication, drawing attention in particular to the fact that investigation visits were made only during curfew hours (that was in the circumstances before 7.15am on 24 August 2012). As a result the officer was not able to check the Claimant's tag, and reported this event to the appropriate personnel in Serco. The investigating officer had given a written account of what he said had happened at the investigation visit.”
The result was that, pursuant to the provisions of s. 255 of the 2003 Act, on 24 August, the Secretary of State revoked the appellant’s licence on the grounds of breach of condition and recalled him to custody.[13]On 12 September 2012, the appellant submitted written representations challenging his recall. He explained what had happened from his perspective. This is best summarised in his witness statement: “12. Again, on 23 August 2012 I did not tamper with my tag at all. I went to bed and was sleeping on a sofa bed in my sister, Tsehai's room. I was woken by my sister, Tsehai, who shook me to wake me and informed me that the ‘tag’ man was there. I also heard Angel shout at me that the ‘tag’ man was there.13. I went downstairs to speak to the Serco employee, who was waiting at the bottom of the stairs. I sat down on the stairs and told the Serco employee that I was tired, had just been woken and it is very late. The Serco employee agreed to return the following morning to check the equipment. He did not attempt to explain the consequences of not checking the equipment there and then. Our conversation was limited to him agreeing to return. I was not aggressive or confrontational.14. On reflection and in light of his subsequent action in breaching me, I think that he simply did not care. I think he agreed and walked away knowing he was going to recall me but wanting to make his job easier and not bothering to explain the consequences or engage with me." His account was broadly supported by two members of his family who also submitted statements.[14]These representations were considered on behalf of the Secretary of State who, by letter dated 5 October, maintained his decision on the basis that it was unlikely that the Serco officer would behave in the manner which the appellant had alleged. Following a letter before claim dated 7 November, the response (dated the following day) repeated that there was no plausible explanation for the Serco officer to behave as contended, identifying further that there was no record of any attempt to re-arrange the visit.[15]The letter before claim also relied on the judgment of the House of Lords in R (West); R (Smith) v Parole Board[2005] UKHL 1[2005] 1 WLR 350 and claimed an entitlement to an oral hearing. Referring to the decision of this court in R (Whiston) v Secretary of State for Justice [2013] 2 WLR 1080, the Secretary of State responded to the effect that Parliament had not provided for such a hearing after recall under s. 255 of the 2003 Act and there was no right to one. The claim was thus rejected.[16]Prior to the commencement of proceedings, on 14 December 2012, as the terms of the custodial part of his sentence prescribed, the appellant was released from custody automatically. Acting on his behalf, Mr Hugh Southey Q.C. makes the point that the release does not end his legitimate interest in this case. First, he argues that it is important to establish, as he contends, that the recall was unlawful. Second, it is also significant because should the appellant be sentenced to a further term of imprisonment, based on the policy, he will not be able to benefit from HDC.

The Divisional Court

[17]Kenneth Parker J (with whom Rafferty LJ agreed) adopted the reasoning of Elias LJ in the decision of this court in Whiston (at [31]) to the effect that HDC was “much more closely integrated with the original sentence than is release as of right once the custodial period has been completed”. Recall did not affect the offender’s statutory right then to be released. Furthermore, breach of curfew in itself justified recall under s. 254 of the 2003 Act, irrespective of risk. Referring to the requirement to take account of the interests at stake in considering what procedural fairness in the relevant context required, Kenneth Parker J distinguished the interests of those with a statutory right to release on licence after the custodial term had concluded from those with no equivalent right to HDC during the custodial term. He emphasised that the provisions surrounding HDC were “laden with a wide area of discretionary judgement on the part of the decision maker” [29].[18]Kenneth Parker J went on (at [35]) to recognise that the Secretary of State accepted that there was a discretion to hold an oral hearing when fairness dictated it. He agreed, however, with the submission made by Miss Nathalie Lieven Q.C. for the Secretary of State, that this was not such a case.[19]The reason for this conclusion on the facts was that the appellant “knew or ought to have known … the strict and important nature of the obligation imposed on him” ([37]), particularly following the recently reported violation and the specific warning about his obligation”. Further, his account “made no sense on any objective analysis” ([40]). On the other hand, that of the Serco officer was “coherent and cogent”. Finally, the decision of the Secretary of State “on any objective analysis [of the facts] … was the only conclusion rationally open”.[20]That analysis of the facts included the context that it was already past midnight. The assertion that it was “late” and that the appellant was “tired” was described by Kenneth Parker J as a flimsy and wholly inadequate pretext. It might be added that, however supported in his account by his sisters, the appellant’s justification was particularly surprising given that, on that account, he had woken up, got out of bed and was, at the time, sitting at the bottom of the stairs where the Serco officer was waiting for him. Secondly, such a concession would likely have led to the risk of renewed negotiations very early the following morning, also based on fatigue, not least because he had been disturbed so late: the examination was required to take place during curfew i.e. before 7.15 am (because of Condition 9) and necessitated a further visit either by this or another officer. Third, the operative would also have had to explain his aborted visit “including a statement of the ‘wholly inadequate’ reasons why he had not investigated at 43 minutes past midnight and why he had taken no steps to fix a second visit before 7.15 am” ([41]).

This Appeal

[21]For the principles governing the approach, both before the Divisional Court and this court, Mr Southey relied on R (West) v Parole Board; R (Smith) v Parole Board[2005] UKHL 1[2005] 1 WLR 350 (“West”) which concerned revocation of licence (for breach of conditions) and recall to prison following release after the custodial part of the sentences had been served. It decided that the review conducted by the Parole Board would satisfy the requirements of Article 5(4) of the European Convention on Human Rights (requiring the lawfulness of detention of everyone deprived of his liberty to be decided speedily by a court) provided it was conducted in a manner that met the common law requirements of procedural fairness.[22]In relation to these cases, it was held that the relevant issues raised in the recalls could not fairly be resolved without the offer of an oral hearing. Lord Bingham observed (at [31]) that an oral hearing was “most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome”, and went on (at [35]):
“The common law duty of procedural fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board’s task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”
[23]Mr Southey argued that although, in these cases, both men had a statutory right to be free, breach of which gave rise to an enforceable right to redress, once the appellant had been released on HDC, he had a conditional right to liberty so that the situations were no different: the written representations raised issues of credibility which could not resolved fairly without the offer of an oral hearing.[24]In addition and by way of further illustration of the approach, Mr Southey relied on two decisions of the Supreme Court, decided after the judgment in this case. In R (Osborn and others) v The Parole Board [2013] 3 WLR 1020, the Supreme Court returned to the requirement for an oral hearing before the Parole Board. In the case of Osborn, he had been released on licence after he had served the custodial part of his sentence; his licence was revoked for breach of condition. In relation to the other appellants, both had been sentenced to indeterminate terms and had served the specified minimum term: both sought (and had been refused) an oral hearing before the Board then considering release or transfer to open conditions.[25]The conclusions of the Supreme Court are summarised by Lord Reed JSC (foreshadowed in the judgment at [2]), echoing the observations of Lord Bingham. The summary is worth setting out in full because it illustrates the very wide range of issues (ranging from the factual to the purely evaluative) that may fall for determination at such hearings and underlines the potential implications for the prisoner: “i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a “paper” decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner’s future management in prison or on future reviews. iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The board’s decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner’s release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. x) “Paper” decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not. xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.” a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a “paper” decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner’s future management in prison or on future reviews.[26]Mr Southey sought to take individual phrases from this summary to underline the principle (as he argued it) that, at common law, cases where there was a factual dispute required an oral hearing. In his skeleton argument, he also sought to rely on the subsequent decision of the Supreme Court in R (Whiston) v Secretary of State for the Home Department [2015] AC 176 which dismissed the appeal from the decision of the Court of Appeal in a judgment which (per Lord Neuberger PSC at [50]) reflected the reasons expressed in the very clear judgment of Elias LJ (upon which Kenneth Parker J had relied in this case). Whiston was specifically concerned with recall following release on HDC on the grounds that the Secretary of State had concluded that the appellant’s whereabouts could no longer be monitored in the community; the question raised was whether a person released from prison on HDC (and thus still serving the custodial part of the sentence) had rights pursuant to Article 5(4) of the European Convention on Human Rights (ECHR).[27]Although it might be thought that arguments on the Convention and the common law would run in tandem in relation to this principle, the case put before the Supreme Court was based solely on the ECHR: citing privilege, Mr Southey was somewhat opaque when it came to explaining why the common law position was not advanced by him in Whiston. Suffice to say that, having analysed the Strasbourg jurisprudence (and considered observations in West), the Supreme Court held that, so long as the custodial part of the sentence was being served (whether in custody or on HDC), ECHR rights were satisfied.[28]Mr Southey accepted that the appellant could not claim to have his challenge to recall determined by a court, maintaining only that the common law allowed him an oral hearing before the Secretary of State (or, in practice, a governor of the prison) and, in his skeleton argument at least, sought to draw comfort from the observations of Lord Neuberger PSC [at 45] to the effect that:
“I have some difficulty with the notion, implied by Lord Brown in para 74 of Black, that a court in this country should hold that the reach of article 5(4) is, as it were, longer than the Strasbourg court has held. Assuming (as may well be right, and will no doubt have to be considered in a future case) that a United Kingdom court could, in principle, decide that article 5(4) applied in Mr Whiston’s case in the face of clear Strasbourg jurisprudence that it would not, I am quite unconvinced that it would be appropriate to do so. Unless and until I am persuaded otherwise on the facts of a particular case, it seems to me that the common law should be perfectly well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention. The decision in West demonstrates that the common law affords protection in such circumstances, and Lord Brown's actual conclusion in Black underlines the very limited nature of any exception which he had in mind in his obiter observations.” (Emphasis added)
[29]Mr Southey placed reliance on the emphasised observations to support the proposition that common law fairness went further than the ECHR and imposed, or at least could impose, the same requirement for an oral hearing following recall from HDC as in recall after the custodial term had concluded. For my part, I do not agree that this is what Lord Neuberger was saying and I endorse the analysis of these observations by Miss Lieven, namely, he was doing no more than underlining that the common law gives the protection of natural justice (whatever that may require in the specific context of the case) in HDC cases as it did in West.[30]In my judgment, the appropriate starting point is the observation of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 at 560 when he underlined that the requirements of fairness change over time, are flexible and are closely conditioned by the legal and administrative context. In that regard, it is important to note that Miss Lieven repeats the concession made before the Divisional Court that the Secretary of State does retain a discretion to hold an oral hearing if he believes it appropriate to do so; neither is that different from the concession made by Mr Southey in argument that not in all circumstances is there or should there be a right to an oral hearing. Context is critical.[31]It is for that reason that I have set out the citation from Lord Reed JSC in Osborn in such detail. Circumstances necessitating an oral hearing “will often include” (without it being suggested that any is itself determinative), inter alia, disputed facts which need to be heard orally; independent assessment of risk, particularly when relying on expert evidence or founded on expertise of the board; and the requirement to test views. Other considerations include reflection of legitimate interest; the need to demonstrate independence and impartiality; the length of the custodial term remaining; and the extent of impact on management in prison.[32]What are the arguments as to the context in this case? First, as is apparent from the legislative structure, release on HDC under s. 246 of the 2003 Act is discretionary and conditional, consisting of serving the custodial part of the sentence in the community. As Elias LJ put it in Whiston [2013] 2 WLR 1080 (at [31]:
“Release on home detention curfew is much more closely integrated with the original sentence than is release as of right once the custodial period has been completed. The curfew is a compulsory feature of the scheme and if it cannot be enforced, the licence must be withdrawn and the prisoner recalled, irrespective of the fact that the prisoner has honoured the conditions of the licence.”
Release is “laden with a wide area of discretionary judgment”: per Kenneth Parker J (at [29]).[33]Mr Southey argues that this feature played far too large a part in the reasoning of the Divisional Court because once the discretion had been exercised, the prisoner was no longer in custody and, therefore, was entitled to consideration from the position that he was at liberty. But that is not a proper analysis of the case: the appellant was released only by reason of the positive exercise of the discretion of the Secretary of State, overriding the custodial term. It is clear from Whiston that HDC is detention by another means and justified by the sentence of the court. It is therefore wholly incorrect to argue by analogy to the situation which arises after the custodial term has come to an end when there is a statutory right to liberty.[34]Further, conditional release depends on the offender complying with each and every condition, including Condition 9. That much is clear from the terms of release and the responsibility for complying is his. Thus, absence of fault on his or her part does not render breach of condition of no effect and can lead to recall. In that regard, it is worthy of note that the appellant had been subject to electronic monitoring on two previous occasions; it can therefore be inferred that he was well aware of his obligations.[35]Secondly, Mr Southey submits that, although the Supreme Court endorsed the views of Elias LJ at [31], by making it clear that West applied to individuals recalled from HDC, the differences were not relevant to the application of the principles of procedural fairness. The question, however, is not whether principles of procedural fairness are in play, but rather their application not just generally (it being the effect of the concessions made by both sides that there is no bright line that an oral hearing is always or never required), but specifically having regard to the circumstances of the case.[36]The significance of context is underlined by R (MacKay) v Secretary of State [2011] EWCA Civ 522 which Mr Southey identifies as demonstrating a common law requirement for an oral hearing even when detention is not directly in issue: that case concerned review of the Category A status of a life sentence prisoner. The justification for the requirement in that case, however, was that there was an inconsistency between the view of the Category A Review Team and the Parole Board. Further, the effect of failing to re-categorise an offender serving life imprisonment for murder as he reached tariff (i.e. the specified minimum term) is very real: it inevitably leads to a very much longer period in custody because attempts at rehabilitation and preparation for release will either not take place while he remains on Category A or be very much more constrained.[37]Third, returning to recall from HDC, the context is that the recall period will, by definition, be comparatively modest and will be part of the custodial term. Further, a consideration of the justification of that decision is likely to require a comparatively straightforward decision on the facts. There is normally no question of an evaluative judgment or one that depends on expert evidence or assessment of risk. In most circumstances, there will not be the slightest need for oral evidence and no reason to suppose that the official account of events will be favoured. Even in this case, it is not suggested that the appellant could not comply with the terms of his conditions. Indeed, as I have observed, it is truly remarkable that, sitting at the bottom of the stairs, with the official from Serco standing in front of him, he should even have suggested that he should or could not comply with what he well knew were the conditions of his licence.[38]In truth, this is not a case which required flexibility of oral presentation or oral evidence to determine the truth of the appellant’s account (cf Goldberg v Kelly (1970) 397 US 254) or investigate potential mitigation. The Secretary of State was entitled to conclude that the appellant’s account made little sense and that there was a clear breach of the conditions of the licence not least because the officer and the appellant were face to face with each other and the obligation to comply with the licence (irrespective of any request he might have made) was on the appellant. He should not have been arguing about immediate compliance in the first place.[39]Finally, I should deal with Mr Southey’s submission that this decision is of particular importance not merely because of the additional period in custody (which the appellant has long since served) but because of the policy that those recalled while on HDC will not be eligible in respect of any future sentence for similar release. First and of prime importance, whether the appellant is sentenced to a period of imprisonment in the future is entirely in his hands and it would be wrong for this court to proceed on the premise that he is entitled to some consideration against the possibility that he will continue to commit crime in the future.[40]Second, in any event, although the policy in relation to future release was based on the maintenance of public confidence (which it is legitimate to assume properly requires strict compliance with conditions), it was then recognised that exceptional circumstances could be claimed to modify its strict application. Thus, at the time the decision was made, it may have been reasonable to anticipate that it would have been open to the appellant to argue that he was, in fact, at home at the relevant time and that the breach was not, therefore, the most egregious. For that reason also, an oral hearing would not have been justified.[41]In relation to exceptional circumstances generally, I recognise that the law has now changed and that the policy has been replaced by s. 246(4)(g) of the 2003 Act (as substituted by s. 112(3)(a) of LASPO 2012) so that the power to release under s. 246(1) does not apply if the prisoner has been recalled under s. 255(1)(a) at any time. If this change in the law could have any impact on the decision whether or not to permit an oral hearing if one is requested (which for the reason identified in [39] above, I doubt), the facts, context and circumstances of this case are, in any event, such that it does not affect the conclusion that I have reached.

Conclusion

[42]Miss Lieven argued that having conducted a thorough investigation into the circumstances which led to the recall of the appellant, and taking into account the written material and representations that he submitted, the evidence was sufficiently conclusive to make a decision that the recall should be upheld and that an oral hearing was not, in those particular circumstances, required in the interests of fairness. In common with the Divisional Court and the very careful analysis of Kenneth Parker J, I agree and I would dismiss this appeal.

Lord Justice Jackson :

[43]I agree.

Lady Justice Black :

[44]I also agree.

Cited in 1 later judgment