Middleton, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 315 (Admin)

Case No CO/3913/2002[2003] EWHC 315 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 19 February 2003
Strand
London WC2
B E F O R E:
MR JUSTICE PITCHFORD
Between
THE QUEEN ON THE APPLICATION OF PETER BARRIE MIDDLETONClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS FLO KRAUSE (instructed by The Smith Partnership, Derby, DE1 1S) appeared for CLAIMANTMR STEVEN KOVATS (instructed by The Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©Wednesday, 19 February 2003
[1]MR JUSTICE PITCHFORD: The claimant, Peter Barrie Middleton, was sentenced, following a trial at the Crown Court at Teeside on 11 November 1992, to life imprisonment for the offence of murder. The tariff period set was ten years. In May 1999 the Parole Board recommended the claimant's transfer to open conditions, and he was so transferred on 8 July of that year. On 15 March 2002 the Parole Board considered the claimant's case, towards the expiration of his tariff period, and recommended his release.[2]The claimant was notified by the Secretary of State that the recommendation of the Board was being considered by him, but there is no evidence that the Parole Board's decision was communicated to the claimant at that time. In the course of considering the recommendation of the Parole Board, the European Court of Human Rights published its judgment in the case of Stafford v the United Kingdom [2002] 35 EHRR 1121, judgment being given on 28 May 2002. The Secretary of State's consideration to which I have referred took place under the powers provided by section 29 of the Crime (Sentences) Act 1997, subsection (1) of which provides:
"If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial Judge if available, release on licence a life prisoner who is not one to whom section 28 above applies."
The Secretary of State did seek the views of the trial judge, Waller J, as he then was, and of the Lord Chief Justice. The papers remained with the judiciary for a period of almost two months and were received back in the lifer unit on 28 May. On 17 June 2002 the Secretary of State decided to release the claimant in accordance with the Parole Board's recommendation. At that time there was a lifer population of some 5200 prisoners, of whom over 3700 were mandatory lifers, in prisons in England and Wales.[3]In time it became apparent that it would be necessary to legislate to amend section 29 of the Crime (Sentences) Act 1997. Mr McMurdo, the senior manager in the lifer unit at HM Prison Service headquarters, a Head of Casework Section, says that it is hoped that a legislative opportunity will arise in the autumn of 2003. On 17 October 2002 the Secretary of State announced, in a parliamentary answer, that he was introducing interim measures as a response to the decision in Stafford, pending the enactment of the legislation, and the procedure to be followed would apply to those mandatory lifers whose Parole Board Reviews would take place after 1 January 2003. It was originally the target that release would take place within ten weeks of receipt of a Parole Board recommendation. Mr McMurdo says that that period has now been reduced to ten days.[4]The claimant was eventually released, for reasons to which I shall come, on 28 August 2002. He now seeks a declaration that between 28 May and 28 August 2002 he was unlawfully detained in breach of Article 5(1)(a) ECHR, and damages for that unlawful detention.[5]It is now necessary to examine what happened following the decision made by the Secretary of State on 17 June 2002 that the claimant would be released. On 18 June, the day after the Secretary of State's decision, the prison at which the claimant was serving his sentence telephoned the lifer unit, informing them that the claimant had recently breached his temporary release licence, and failed a mandatory drug test. The lifer unit asked the prison for a written report on those incidents.[6]On 9 July 2002 the report of the governor was received. That report disclosed that on 12 June 2002 the claimant had breached his temporary release licence by making a journey to Wetherby, whereas his release had been on condition of a journey to York. Having questioned the claimant, it was the view of the governor that his explanation for his presence in Wetherby was implausible. That had caused some anxiety, since the circumstances were similar to a previous breach of licence in 2001, when the claimant had been drinking in the company of former army friends, and alcohol had been a feature of the lifestyle of the claimant which had led, at least in part, to the commission of the offence of murder. When interviewed by a member of the Parole Board on 10 January 2002, the claimant had assured the Board that that incident in January 2001 was an isolated one which would not occur again.[7]The second matter of concern was the failure of the mandatory drug test. The drug in question was an opiate called buprenorphine. Later, the claimant, who protested that he had no knowledge of having taken such a substance, suggested that it might have had something to do with surgery to his nose which had taken place in May 2002. I am not sure whether that issue was ever satisfactorily resolved.[8]The governor took the view that the two incidents did not significantly increase the risk which the claimant posed to the public, but did suggest that the Parole Board might wish to consider the claimant's release further. On 9 July 2002 the lifer unit received a report from the probation officer, also expressing concern, not merely about the breach, but about the claimant's attitude towards his period of time in custody. On 10 July 2002 the Secretary of State informed the claimant that he would be inviting the Parole Board to consider his case, and sought from the claimant any representations he wished to make. The first representation was that he was being unlawfully imprisoned, and the second set out written representations concerning the merits of the alleged breaches and their implications. Having received those representations, the Secretary of State made his decision to refer the matter to the Board on 30 July 2002.[9]However, in the meantime, on 20 August the claimant served the present claim on the Treasury Solicitor and the Secretary of State elected to reconsider that decision. He decided that the information before him did not present an increased level of risk. On 23 August he discussed the matter with the probation service, with a view, in particular, to setting the terms of the claimant's licence and checking the availability of a hostel place. On 27 August the Board Panel Chairman approved an amendment to the claimant's licence, and on 28 August 2002 he was released.[10]Mr Kovats, on behalf of the Secretary of State, submits that the claimant's detention as at 28 May 2001 was lawful, being in compliance with domestic legislation. He concedes, however, that, if the Secretary of State acted in a way which contravened the claimant's Convention rights, then the claimant has a remedy in this application for review, including a right to an award of damages. He argues that Stafford was decided on its own facts. The European Court was there examining an alleged breach of Article 5(1)(a), not in a context in which a tariff had merely expired, but in the context of a man who had been released and subsequently recalled for an offence of fraud, and thereafter detained beyond the period to which he had been sentenced for fraud, and therefore for a reason which was not relevant to the imposition of the original sentence. He submits that the words:
"No one shall be deprived of his liberty, save in the following cases and in accordance with the procedure prescribed by law: "(a) The lawful detention of a person after conviction by a competent court..."
Are satisfied in this case, since, at all times after 28 May 2002, the claimant was detained in consequence of the sentence of life imprisonment imposed at trial.[11]He contends that Article 5(4) was satisfied by the existence of a right of challenge by the complainant at all times since 28 May 2002. It is right to observe, however, that this claimant would not have known of the recommendation of the Parole Board until the Secretary of State had made his decision, unless he had asked and the authority was prepared to inform him. In my view, the Court's decision in Stafford upon the effect of Article 5 in the context of sentences of life imprisonment for murder cannot be so narrowly construed. In explaining the reasons for its decision, the Court said:
"63. Where the 'lawfulness' of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. In addition, any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, amongst many authorities, the Amuur v France judgment of 25 June 1996) ... "64 ... In the case of Weeks v the United Kingdom ... Which concerned the recall to prison by the Secretary of State of a applicant who had been released from a discretionary life sentence for robbery, the Court interpreted the requirements of Article 5 as applying to the situation as follows: "
'The lawfulness required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by the sub-paragraph (a) of Article 5 §1 (see as the most recent authority the Bozano judgment of 18 December 1986 ...) Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue' of the 'conviction' ... In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue ... '" Having examined the development of United Kingdom and European decisions in the field, the Court continued:
"80. The Government maintained that the mandatory life sentence was nonetheless an indeterminate sentence which was not based on any individual characteristic of the offender, such as youth and dangerousness and therefore there was no question of any change in the relevant circumstances of the offender that might raise lawfulness issues concerning the basis for his continued detention. However, the court is not convinced by this argument. Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness."
[12]It seems to me that, once the Parole Board has determined that the prisoner should be released, his tariff having expired and no grounds of risk and dangerousness existing for continued detention, (see R v Secretary of State for Home Department, ex parte Anderson, House of Lords [2002] UKHL 47) further detention for any reason properly characterised as arbitrary would offend the rule of law and thus Article 5(1)(a) of the Convention.[13]Miss Krause, on behalf of the claimant, argues that the day after the Stafford judgment the claimant's detention became unlawful. That is, in my view, a hopeless proposition. Mr Kovats rightly pointed out that, at the moment of judgment in Stafford, the Secretary of State was fulfilling his statutory obligations under section 29 of the Crime (Sentences) Act 1997. Stafford amounted to a sea change in Europe in the perception and policy of a mandatory life sentence for murder. As the European Court recognised, it was changing a line of cases culminating in the decision of Wynne v United Kingdom.[14]The Secretary of State was entitled, it seems to me, to take a reasonable time to consider the implications of the decision, to take advice from the law officers and to formulate an appropriate policy for the advantage of all those prisoners subject to a life tariff. It is noticeable that it was not until 17 October 2002 that the Government was in a position to announce its response to Stafford in the House of Commons. I accept the submission made on behalf of the Secretary of State that the European Court itself recognises the necessity, before a Convention State acts upon a finding of incompatibility, to ensure legal certainty and continuity if possible.[15]In Walden v Liechtenstein Application No 33916/96 the European Court of Human Rights examined the application of a male pensioner who claimed that his Article 4 rights had been violated by application of the laws of the state of Liechtenstein. A married couple's old age pension was calculated at 150 per cent of the husband's sole entitlement. That had the effect of reducing their joint pension below the sum which would have been payable to the wife, had she been unmarried. The applicant challenged the legislation in the national courts in December 1993. The State Court found in 1996 that the legislation was unconstitutional, since it discriminated against the applicant in particular, and married couples in general. The Court would not, however, suspend the operation of the legislation, as it had power to do, since disadvantages would accrue to other pensioners. A new statutory code was in the process of preparation. Ultimately, Mr and Mrs Walden received their new pension as from 1 January 1997. At page 6 of the judgment, in which the application was dismissed as inadmissible, the Court said this:
" ... The Court considers that despite the State Court's finding of May 1996 that the applicant's right to non-discrimination had been violated as regards his old age pension rights, the applicant can claim to be a victim within the meaning of Article 34 of the Convention of the alleged violation as the contested provisions were not set aside and, thus, remained applicable to him until 1 January 1997, when the amendment of the Old Age Pension Act entered into force. "
However, the Court notes that the parties' submissions in the present case concentrate on the question whether the State Court should have set the contested provisions aside. While the Government argue that the State Court was prevented from doing so for reasons of legal certainty, the applicant contends that it should not only have annulled the relevant legislation but should have done so with retroactive effect. "In this context, the Court recalls its case-law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional (see the Marckx v Belgium judgment of 13 June 1979 ... ). Moreover, it is also been accepted, in view of the principle of legal certainty that a constitutional court may set a time limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period ... "[16]Miss Krause submits that the reasoning in Walden should not apply when the claimant's personal liberty is at stake. I disagree. I consider the reasoning is common to both situations. Both concern rights under the Convention, but what is different is the nature of those rights. Accordingly, I accept that a national government will be expected to act with the expedition appropriate to the rights under consideration.[17]In my judgment, the decision-making period between 28 May and 17 June 2002 was wholly reasonable. I adopt the view of Simon Brown LJ in R v Parole Board, ex parte Robinson, a decision of the Divisional Court given on the 29 July 1999. The Court there held that the Parole Board having decided that a discretionary life prisoner posed no unacceptable risk to the public, it was not empowered to revisit that decision unless the decision-making process was flawed or circumstances had changed. Once the decision is first made, all that then usually remains is the making of detailed arrangements for implementation of the decision within a comparatively short time. This observation impacts both on the period before and the period after 17 June 2002.[18]What happens if circumstances have changed? In the context of reviews by the Mental Health Tribunal, Lord Phillips MR, giving the judgment of the Court of Appeal in R (on the application of IH) v Secretary of State for the Home Department and Secretary of State for Health [2002] EWCA Civ 646, said at paragraphs 70 and 71:
"70 ... If the tribunal remains seised of the matter until the actual direction for conditional discharge is given, it seems to us highly desirable that the Tribunal should be able to have regard to relevant fresh material, should there be any. We view as unsatisfactory the conclusion ... that a Tribunal should be compelled to discharge a patient whose condition has deteriorated since the Tribunal first considered the matter. "71. Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances ... "
This situation is not a direct analogy, if any analogy, with the Secretary of State's position here. Tribunals stand in the position of the Parole Board, and the Parole Board was not, at 17 June, seised of matters concerning the claimant's release; they had already communicated their decision on 15 March 2002. Nevertheless, new material was in the hands of the Secretary of State, which undoubtedly required mature consideration. I believe it to be conceded, on behalf of the claimant, that the Parole Board would have been entitled to consider changes of circumstances. The finding of breaches of the claimant's temporary leave had possible consequences to the Parole Board's decision to release.[19]In my judgment, the Secretary of State acted lawfully in gathering the evidence before release, and in reaching the view that the Parole Board should be invited to consider whether the evidence affected the risk to the public of release. He was also entitled, on reflection, to take the course himself of releasing the claimant, concluding, no doubt, that the further information would not alter the Parole Board's views. That was an opinion perhaps endorsed by the Chairman of the Panel, who accepted an amendment to his licence conditions.[20]It follows that, in my judgment, at no time between 28 May and 28 August 2002 was the claimant's detention in fact unlawful, and, accordingly, the claim must be dismissed.[21]MISS KRAUSE: My Lord, there is an application to appeal. I have not had time, obviously, to digest the judgment, but, in view of your Lordship's ruling on the extent of the application of Article 5(4) in the case of Stafford and the --

MR JUSTICE PITCHFORD: Article 5(1), I think you mean, do you not?

[23]MISS KRAUSE: Yes, 5(1)(a), I apologise -- and the contrast with the common law position in terms of false imprisonment here, and the gap which then results between the application of the Convention and the common law to what is, in effect, the same vice; that is really the basis for the application to appeal.[24]MR JUSTICE PITCHFORD: Well, I have to be case specific, Miss Krause, and I decided the Article 5(1) issue in your favour and accepted the basis upon which you invited me to judge the issue, in a sense, so I am afraid I am not going to give you leave.[25]MISS KRAUSE: I am obliged. May I have detailed legal aid assessment?

MR JUSTICE PITCHFORD: Do we have a certificate?

[27]MISS KRAUSE: Yes.

MR JUSTICE PITCHFORD: Yes, you may.

[29]MISS KRAUSE: I am grateful.

MR JUSTICE PITCHFORD: Thank you both very much.

Cited in 2 later judgments