Benson, R (on the application of) v Secretary of State for Justice [2007] EWHC 2055 (Admin)

Case No CO/6693/2007[2007] EWHC 2055 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 20th August 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF ANTHONY BENSONClaimantv
Between
SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Benjamin Myers (instructed by Messrs Belshaws Solicitors) appeared for ClaimantMs Lisa Busch (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: The claimant, Anthony Benson, is detained in prison as a result of his conviction for an offence of assault occasioning actual bodily harm. He was sentenced to 12 months' imprisonment on 11th March 2007. He was entitled to consideration by the Secretary of State of the exercise of his powers under section 246 of the Criminal Justice Act 2003 so that he could be released on licence effectively on what is called PID, that is to say released subject to conditions which included that he wear a tag which was to be monitored by the relevant provider, namely GS4. There were various other conditions to which I will come in due course. He was so released on 1st June 2007. Because he was serving a sentence of 12 months and one day, the release could not occur until he had served three months of his sentence (such is made clear by section 246) and the PID would last until he was entitled to general release once he had served half of the sentence imposed.[2]He was recalled on 24th July, it being alleged that he was in breach of conditions imposed by his licence. The result of that is that he is unable to be released again on the PID system and so must serve the balance of the half of his sentence which would take him to 7th September, when he will be entitled to release.[3]The claimant asserts that he is entitled in accordance with Article 5(4) of the European Convention on Human Rights to have an independent assessment of whether he should have been recalled and the system which operates does not provide him with that independent consideration. Secondly, he argues that in the circumstances the decision which resulted in his recall was unfair in as much as he was not given a proper opportunity to meet the allegations that were made and, in addition, it would seem that an erroneous approach was adopted to what had to be established in order to justify his recall to custody.[4]I deal first with the background in relation to the circumstances of the release and the recall. The licence contained a number of conditions, including a home detention curfew, which meant that he was required to be at his address effectively overnight. There were variations to it but essentially that is what it established. I do not think it is necessary for me to go into the precise details of the timing which were at any particular moment in issue. Condition 9 provided:
"Your compliance with the conditions of the Home Detention Curfew will be monitored by GROUP 4 SECURICOR 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 your curfew hours but not between midnight and 6.00am. However, the supplier may visit the curfew address between midnight and 6.00am in order to investigate a reported violation."
[5]The effect of that was that visits to identify, if they were not to be between midnight and 6.00am, would have had to have been in the evening between, I think it was, 8.30pm and midnight, which was part of the time that he was required to be at home. He was not required to be at home during the day, indeed from 6.00am, because he was working and was working long hours. That is one of the problems that he says led to his failure to afford access, which was the concern of the Secretary of State and what led to his recall.[6]There is a somewhat curious document which records that his licence had been revoked by a revocation order issued on 26th June 2007 because he had tampered with his tag. However, quite why that was issued is unclear. It certainly has not been relied on as a ground for recalling him and there is no evidence before me, nor was there any suggestion that it played a part in the decision when the claimant asked the relevant official in the ministry to reconsider his recall. GS4 have a duty to produce what is called a Curfew Activity Report and to notify the authorities if there has been a breach and to that end they make a number of checks, no doubt checking on the tag and whether it is working or appears to be working. There has been produced a copy of the report for 4th and 5th July, which are the relevant dates. This shows that there is a record of what is described as a PID Tamper at 7.58pm on the 4th. There was then apparently a call at 8.01 but there was no answer. That, of course, would not be in any way a breach because the curfew did not commence until 8.30. There is then a record that at 8.49 the claimant left home during curfew but there was a call made and, on the claimant's case, it was a call made him to him. It is described as "pd call" but when he called them, as is apparent from a later entry in the report, it is described as a call from him. Accordingly, I have no reason to believe other than that there was indeed a call to him which showed he was at home at 8.57, some seven or eight minutes after he is supposed to have left home. There is then a record that at 9.12 he is recorded as returning home late. Those entries strongly suggest that there may indeed have been some fault on the tag and it was obviously decided, and rightly decided, that there was a need to pay a home visit and investigate. Indeed, he was informed in the course of the call at 8.57 that there would be some such call and that a visit was required. Knowing that, he has stated that his wife waited up until midnight, expecting, not unreasonably expecting, and that if there was to be a call it would take place before midnight. There was no such call and so she went to bed. He had already gone to bed. He claims that he was working long hours and as a result he went to bed and slept soundly through the night. He also stated in the course of the call that he had not been in violation of the curfew but had been having a bath and it may be that that somehow had affected the integrity of the tag.[7]In any event, what happened was that someone from GS4 went round to the premises at three minutes to one in the morning of 5th July. The record states nothing other than what was said at 1.43:
"Visit required see previous log - Actioned by [someone] as Not Available at 05.07.2007 01:43:59."
Actually, what appears to have happened is that, as I say, someone went round at three minutes to one. I have been provided with a statement from the relevant employee of GS4 who states:
"I attended [the address] at 00:57hrs on 5 July 2007. I rang the doorbell a couple of times but there was no response. So I knocked hard on the door and rang the doorbell together three times but there was no reply. I called the contact number but again there was no reply. I booked on site at 00.57hrs and booked off site at 01.05hrs so I was on site a total of 8 minutes. The house was in darkness with the windows closed. In my opinion I would have expected a reply if anyone was present at the time of my visit."
There was a card left telling the claimant of the abortive visit and asking him to phone and he did so at 6.10 in the morning, stating that he was at home, had gone to bed at about 11.00 and informing GS4 that his doorbell did not work so it was necessary to knock rather than simply to ring. It is fair to say that the statement before me indicates that there was knocking as well as ringing.[8]Although I do not have a log in relation to it, there was a second incident at 10.15 on the evening of 9th July, this being, as I understand it, a rather belated follow up as a result of what had happened on the 4th and 5th. In any event, I have no evidence of what triggered that, save that on the document that I have there is reference back to the previous events of the 4th and 5th and what this records is that at 10.15pm the individual in question:
"Visited subject's address and knocked on the door, there was no answer. Premises in darkness. Contact letter left. No answer to contact number."
This again has been expanded by a statement produced by the relevant official who indicates that he did attend at that time and date. He says he knocked "by a sequence of 3 loud knocks repeated 3 times". He had not tried to use the doorbell because he was aware that the information had been given that it did not work. He rang the contact number but received no answer. He could not recall if the phone call went unanswered or if there was an answer phone. He was there for some five minutes, all the lights at the front of the property were out and he did not recall if any of the windows were open and it was his view that a normal person would have been woken by his knocking. For some reason the decision to recall was not executed until the 19th when the claimant was informed by his probation officer that the recall existed, whereupon he went of his own accord and surrendered himself to custody.[9]Section 255 of the Act provides by subsection (1) as follows:
"(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."
There is no further right of appeal to any body.[10]The reasons for his recall as served on him were as follows:
"It has been reported by the monitoring contractors that you failed to provide access to your curfew address on two separate occasions. The visits were confirmed as 0.55 on the 5th July 2007 [it should be 00.57 but nothing really turns on that] and 22.15 on the 9th July 2007. It is a condition of your licence that you must allow the contractor access to the property to check the monitoring equipment. The Secretary of State was therefore satisfied that, without this access, it was not possible to satisfactorily electronically monitor your whereabouts in the community."
He was then told that he could make written representations either himself or through a legal representative and representations were made, dated 25th July, through his solicitor. It is a lengthy and detailed document, which pointed out that there appeared to be some confusion largely because he was aware of the revocation order issued on 26th June, which does not seem to have been in any way relied on. He made the point that confirmed that he had been having a bath, no-one had attended and by midnight it was decided that no-one was going to. They were not aware, either he or his wife, that anyone had tried to knock them up in the early hours of the morning. So far as 9th July was concerned, he stated that he simply did not accept that any audible contact had been made, the doorbell did not work and the failure to answer was because he was not aware that anyone was trying to gain access. He also made the point that he was seen by the GS4 people, who did in fact change the tag on 5th July, but he was not then told that there was any problem; perhaps that in itself is not altogether surprising because no doubt it would be policy not to let the individual know that there might be a decision to recall him to custody because he might otherwise take steps to avoid such a situation.[11]This was considered and on the same day, 26th July, came the decision from what is called the Appeals Team in the Ministry of Justice, part of what is called the Parole and Public Protection Policy Section. This recorded what he had asserted, recorded what was being relied on and made the point that there had been, it was said, a breach of the condition because the condition was that he should provide access. As the letter stated:
"Your licence condition 9 clearly states that you must provided contractors access to the curfew address to install or check monitoring equipment and electronic tag, such visits will be made during your curfew hours but not between midnight and 6am, however, the contractors may visit the curfew address between midnight and 6am in order to investigate a reported violation, and this they were unable to ascertain as they were unable to gain access twice to the curfew address."
[12]Incidently, I have no evidence, and I do not know whether it is possible to ascertain, whether there was any defect in the tag because the tag has been recovered by the monitoring company, but no steps appear to have been taken to discover whether it is possible to ascertain whether there was a false alarm or whether there was possibly a genuine breach.[13]Those are the background circumstances. Article 5 of the Convention provides by paragraph 1:
"Everyone has the right to liberty and security of 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 the detention is not lawful."
[14]If Article 5(4) applies, the procedure whereby there is a limited right of written representation and the decision is to be made internally and there is no right of appeal to a court or independent body equivalent to a court, would be a breach of Article 5. Incidently, although this is not specifically asserted, it would seem that the provisions of section 255(2), which provide only for written representations, would be incompatible with the Convention. There have been recently a number of cases in which consideration has been given to the extent of the rights under Article 5 where prisoners have been released on licence. Putting it very broadly, it seems to me that the effect of a number of authorities is that if the release is at a stage when the prisoner's detention is for the purpose of protection of the public and the fixed term of any sentence imposed for punishment and retribution has expired then prima facie Article 5(4) will apply. Thus a lifer who has served his tariff may be released. If he is recalled, that triggers a right of consideration of the recall in accordance with Article 5(4) and, indeed, the Parole Board is set up by the statutory provisions as the body which will consider whether the recall and so the detention was lawful and whether the prisoner should remain in prison or be released. That, provided the board is truly independent, is prima facie consistent with the requirements of Article 5.[15]That has been extended in the case of those given a determinate sentence in relation to the part of the sentence which may be an extended part of it to cover danger to the public as opposed to punishment, retribution and deterrence. That appears to be the position in R (Sim) v Parole Board [1994] 1 QB 1288, although that case concerned, as its title suggests, the duties of the Parole Board in relation to such an individual who had been released. In R (Johnson) v Parole Board [2007] EWCA 427, a decision of March of this year, the principle was extended to cover the release of a prisoner subject to a determinate sentence after he had served the part of that sentence which he was required to serve in custody and had reached the stage when he was bound to be released under the provisions in force. In the case of a short term prisoner that would be half of his sentence. Once he had served half, he was entitled to be released. In fact, Johnson's case involved a long term prisoner who was entitled to be released following a decision of the Parole Board after serving half his sentence. There were some delays and the direct question in Johnson's case was whether there was a breach of Article 5(4) in the delay in putting his case before the Parole Board for the Parole Board to consider whether he should be released on licence and the Court of Appeal, relying on observations of Lord Bingham in Clift v Secretary of State for the Home Department [2007] 2 WLR 24, decided that there was. The relevant paragraph of Lord Bingham's speech in Clift's case is paragraph 16, in which he said:
"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."
[16]In Johnson, Waller LJ went on in paragraph 25 of his judgment to state:
"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'."
[17]Smith and West [2005] UKHL 1 is a decision of the House of Lords which concerned the release on licence after the service of half of a three year sentence and recall to prison on the basis that there had been a breach of the conditions of the licence. That was under the provisions of section 39 of the Criminal Justice Act 1991, which has now been overtaken by the 2003 Act and the provisions to which I have referred. The decision of the House in that case related to whether there was a duty in the circumstances to have an oral hearing and that claim succeeded, and what was decided, and I read from the headnote, was that:
"... in cases such as the present the sentence of the trial court satisfied article 5(1) of the Convention not only in relation to the initial term served by the prisoner but also in relation to a licence revocation since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court; however, a decision by the Parole Board to revoke a licence had to comply with article 5(4); but that the board had the essential features of a court within the meaning of article 5(4)..."
[18]It will be apparent, I think, from the various authorities that there has been a degree of difficulty in knowing precisely where the line is to be drawn as to the application of Article 5(4). But it is plain that there is consistent Strasbourg jurisprudence which establishes that, when a determinate sentence is imposed by a court, its lawfulness does not have to be reconsidered even though there has been a release and a recall during the period of that sentence.[19]There is a distinction between that situation and the situation where the prisoner remains in prison as a result of a decision essentially at the instance of the executive that it is not appropriate that he be released because he continues to be a danger. That part of his sentence, although formally imposed by the court, just as a life sentence is formally imposed by the court, does not have the same status as a determinate sentence and a decision to recall after release is not covered by the provisions of Article 5(1) and accordingly 5(4) will apply. By extension, perhaps, the same has been applied by the courts in this country to a situation following an automatic release on licence (automatic in the sense that it has to happen) but hitherto it has not been extended to the situation that exists in this case. In my judgment, having regard to the various authorities, it would be wrong for me to decide that Article 5(4) does apply in the situation that exists here. Accordingly, as it seems to me, the provisions of section 255(2) are not incompatible with the Convention. There is no right to have a consideration of the lawfulness of the detention since it is covered by the determinate sentence passed by the court. One can perhaps justify that by saying that it is simply the means whereby the sentence of the court is to be served. It may be in a closed prison. It may be in an open prison. It may equally be by means of a licence and tagging which itself involves a degree of restriction on liberty. Indeed, one has to note that there is a decision in relation to control orders whereby alleged terrorists have orders made, which involve tagging and curfew, and those can amount to deprivation of liberty within the meaning of Article 5 if the conditions are severe enough to justify it. That is, at present, a decision of the Court of Appeal, a decision which is being reconsidered by their Lordship's house but, as far as I am aware, no decision has yet been handed down. But that makes plain that this sort of licence involving tagging and curfew orders is capable of being regarded as a deprivation of liberty. It certainly is less than freedom, so far as the individual is concerned. In those circumstances, as it seems to me, it can properly be regarded as a manner in which the sentence is being served in the same way as, as I have said, open prison or closed prison. That may well be a way of justifying the distinction to be drawn between it and the situation where there has to be a release on licence and the licence cannot and does not contain such severe measures as are appropriate in release under section 246.[20]It follows that I am not prepared to declare or to find that there is a breach here of Article 5(4). But that by no means is the end of the case because, as Ms Busch rightly accepts, common law imposes an obligation upon the Secretary of State to act reasonably and fairly and what is reasonable and fair will depend on the circumstances of the individual case. The first point to make is that the condition of access is a condition that must in my judgment be applied in conformity with what is reasonable. It is not unreasonable as such to require the possibility of access even during the hours between midnight and 6.00am. But what is unreasonable is to regard it as a breach of condition if the individual in question was not aware of the attempt to gain access and has reasonably not taken any steps to ensure that such access could take place. Thus, for example, if the monitoring firm had telephoned, let us say, shortly before midnight and said they were going to come within the next two hours to monitor whether there had been a breach and accordingly access must be afforded, to take no steps to ensure that they could gain that access within that period might well be regarded as a breach of the condition because the individual would not have acted in a way which was in accordance with the obligations upon him. But to state as a broad proposition that, whenever access was attempted and was not achieved, breach of the condition resulted, is to go altogether too far.[21]It is to be noted that the statutory provision does not require recall. It gives the Secretary of State a discretion as to whether he will recall and, in considering whether he should exercise his discretion in favour of recall, it must be a material consideration to see whether there is any fault on the part of the prisoner. If he was not at fault, if it was not reasonable to expect in the circumstances that he should have given access, if his explanations for not affording the access are accepted, namely that he did not know there was anyone trying to obtain access and nor was he obliged to have expected anyone, then, as it seems to me, the Secretary of State would be hard pressed to justify a decision that the breach of the condition justified recall. He must, in my view, investigate any explanation that has been put forward in order to satisfy himself that recall is justified in all the circumstances.[22]I see no indication that that approach was adopted in this case. The decision does no more than indicate that there was a failure to provide the necessary access. I appreciate that we now have statements from the two monitoring officers who attended, in which they assert that they did knock loudly but, as Mr Myers points out, it may well be that if that were tested, or at least if the claimant in full knowledge of the allegations had been able to deal with them, he might have been able to show that what they had done was not reasonable. Equally, he might well in any written submissions have raised matters which required the decision-maker to go back to the monitoring officer to seek clarification. I am not suggesting that it is in every case necessary, even where there are factual issues, to hold any sort of hearing and indeed the provision of the Act suggests strongly that oral hearings are not required. On the other hand, it is important that a defendant knows what the allegations against him are in sufficiently detailed form so that he can make meaningful objections or put forward meaningful representations. Again, that was not done in this case and it is not clear precisely what information was available to the decision-maker.[23]I have no doubt that the procedure adopted in this case did not produce fairness for this defendant. It may be that even if proper procedures had been adopted, by which I mean procedures such as I have indicated are appropriate, the same result could have applied. But that is not the point. The reality is, as I say, that the claimant has been deprived of a proper opportunity of putting forward and having his defence to the allegations properly considered and it is particularly important to note that the record suggests, for the reasons I have already given when going through the factual background, that there must have been some fault on the system because of the record of his leaving just before he received the phone call on 4th July and coming back shortly afterwards. That simply seems to be highly improbable, although I suppose not entirely impossible as a matter of fact, and that does itself suggest that there may have been no reason to believe that he had breached in any way his curfew or failed to comply with other conditions of his tagging. That is, of course, what lies behind the allegations of failure to provide access but it is not relied on as a ground for recalling him in the circumstances of this case.[24]It follows that in my view this recall is flawed and the claimant is therefore entitled to some relief. The question now arises as to what would be the appropriate relief.[25]Mr Myers, what do you have to say about that?[26]MR MYERS: My Lord, there are two particular elements urged on behalf of the complainant. The first one was an application for a quashing order for the decision to revoke the licence and that, I put plainly, is the principal relief --

MR JUSTICE COLLINS: But what is the effect on him? What should I order in respect of him now?

[28]MR MYERS: I would anticipate that in effect it would be that he would return to the conditions that existed before the revocation of the licence, that he be back on home detention curfew.[29]MR JUSTICE COLLINS: I think that is probably right. We are back to the palm tree, are we not here, Ms Busch, to some extent? Having decided that the decision was not lawful, I mean, one view is that all that he is entitled to is a reconsideration of his appeal on a proper basis. I think technically that is probably all he is entitled to at this stage.[30]MS BUSCH: That is our position, my Lord, yes.[31]MR JUSTICE COLLINS: Mr Myers, I do not think that I can really properly give you more than that because it is the appeal decision that you are challenging, and rightly so. The recall itself may or may not have been justified and that depends upon a fair consideration. I think, having said that, and having regard to the full circumstances, I can say that I would hope that the Secretary of State on appeal, or whoever is responsible for the appeal, would look at it on the basis that, well, he was not treated fairly, it looks as if there may well be some doubt as to whether he was in breach of his curfew and in those circumstances, whatever may be the technical rights and wrongs, he has already served a period in custody and it may be that justice will be met in this individual case by letting him out. But I do not think I can direct, and I do not propose to direct. As I say, I think all that I can properly do is to quash and direct a reconsideration of the appeal.[32]MR MYERS: In which case, the second element of the relief that was sought on behalf of the complainant may not be something that I can pursue because that was in fact, given your Lordship's ruling perhaps --

MR JUSTICE COLLINS: What, damages?

[34]MR MYERS: Yes.[35]MR JUSTICE COLLINS: Well, at that stage, no, but it seems to me that if -- well, if, but only if, the decision to recall was wrong.[36]MR MYERS: In fact, my Lord, it occurs to me that since there is no violation of Article 5, in fact it may well be that I cannot proceed with that on his behalf.[37]MR JUSTICE COLLINS: I think you are probably right. I think you would have to pursue that in another way. I mean, you would have, if you had the basis for it, a civil claim. You do not need judicial review for that, if it is necessary to pursue it.[38]MR MYERS: To seek damages under the Human Rights Act might not be possible on the basis of this.[39]MR JUSTICE COLLINS: So in those circumstances, Ms Busch, what I will do is to quash the decision and direct a reconsideration.[40]MS BUSCH: Yes, my Lord. Thank you.[41]MR JUSTICE COLLINS: And I think you had better pay his costs. I assume he is legally aided.[42]MR MYERS: He is not legally aided and therefore I make an application for costs.

MR JUSTICE COLLINS: As I said, I think he is entitled to costs.

[44]MR MYERS: I am obliged for that, my Lord.[45]MR JUSTICE COLLINS: To be a detailed assessment if not agreed. All right.[46]MS BUSCH: My Lord, I do ask for permission to appeal.[47]MR JUSTICE COLLINS: You want to appeal, do you? No, I do not think it is an appropriate case for that. I have found in your favour on the Article 5(4) point and you have lost only on the facts of this case, as to whether the proper procedure is adopted. On the facts of that case, it was not fair and that is a one-off. It has no knock-on effect.[48]MS BUSCH: I am happy to address you further, otherwise --[49]MR JUSTICE COLLINS: I think you will have to go to the Court of Appeal if you want to take this further, but, as I say, it is purely on the basis that I take the view that you have won on the point that would really have worried you and you have only lost on the facts of the case. (pause)[50]We have to fill in this wretched form now. What I have put is "no point of principle, defendant lost on the facts because he did not consider the claimant's appeal fairly." All right?[51]Thank you, Ms Busch. I think I did to some extent to change my view from Friday, to some extent.

Cited in 7 later judgments