R. (on the application of Sim) v Parole Board: The Case of the Parole Presumption

R. (on the application of Sim) v Parole Board
[2004] H.R.L.R. 15
Court of Appeal (Civil Division)

December 19, 2003

 

Brief Summary:

The principal issue raised by this appeal is how Art.5 of the European Convention on Human Rights affects the detention of an offender who has been recalled to prison while on licence (parole) under an extended sentence passed under s.85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“PCCA”). Article 5 embodies the right to liberty and security of person. Section 85 of the PCCA enables a court to impose in cases of a sexual or violent offence a sentence which consists of a custodial term and an “extension period” during which the offender will be on licence beyond the normal licence period.  When determining whether to revoke the offender's license, the Parole Board used the same standard as it uses when determining whether to release someone on license, with the presumption in cases of doubt being in favor of detention.  The court found that presumption violated Article 5 and held that, when the offender has already been on parole, the presumption should be in favor of continued release in cases of doubt.

 

The Facts:

A man was convicted of a sexual offence and sentenced to two and a half years in prison with an extension period of five years, pursuant to s.58 of the Criminal Justice Act 1991 . Following his release after the expiry of half his prison sentence, he was recalled to prison on account of having breached the conditions of his licence (parole) by not returning to his residence on time, arriving to his residence under the influence of alcohol, and being arrested by the police with regard to an alleged indecent exposure to teenage girls.

He had his recall referred to the Parole Board, who refused to direct his release. He applied for judicial review of that refusal, but his application was dismissed. In the course of dismissing the application, Elias J. held that Art.5 of the European Convention on Human Rights (right to liberty) applied to the decision to recall a person to prison during an extended licence period.  Elias, J also held that the detention had to be consistent with the aims of the original sentence and subject to regular reviews compliant with Art.5(4).  Finally, Elias, J held that s.44A(4) of the Criminal Justice Act 1991 had to be interpreted as meaning that the Parole Board were obliged to conclude that it was no longer necessary to detain the person unless positively satisfied that the interests of the public required his confinement. The Secretary of State, who was party to the judicial review proceedings, appealed against these declarations.

The Holding:

Article 5 of the European Convention on Human Rights applied to the Parole Board's decision whether to direct the release of a person recalled during an extended licence period. The essential feature of the person's situation during that time was that no court had ordered his detention during that period. The court had merely authorised the executive to determine that the person should be recalled. This was not the same as the situation where a person had been released on licence prior to the expiry of the period for which the court had ordered him to be actually detained.

In situations where the parole board was determining whether to release someone on parole, the standard under Section 44A(4) of the 1991 Act provided that, “the [Parole] Board shall direct the prisoner's release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)”. Applying traditional rules of interpretation, this meant that the Parole Board had to ask itself whether it was satisfied that confinement of the prisoner was no longer necessary to protect the public. In case of any doubt, the Board had to decline to direct release. However, when the person was already on parole, it was a violate of Article 5 for the Board to use the same standard, with the presumption leaning towards detention.  Instead, for prisoners already on license or parole, the Parole Board should interpret s.44A(4) of the 1991 Act so that there was a default position in favour of release in cases of doubt.

Section 3 of the Human Rights Act 1998 enabled the section to be interpreted as requiring the Board to be positively satisfied that continued detention was necessary in the public interest if it was to avoid concluding that it was no longer necessary.

 

Villain? 

 

A repeated sex offender trying to remain on parole.  Villain.