Whiston, R (on the application of) v Secretary of State for Justice – read judgment
Since this part of Article 5 confers a right on any person who is detained to challenge the legality of the detention determined by a body sufficiently judicial in character, the lack of review would render the decision unlawful. As Lord Elias says in his opening remarks,
This is one of a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage that Article. Problems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
The appellant was sentenced to 18 months’ imprisonment for robbery. He was released on home detention curfew but was recalled because his whereabouts could no longer be monitored in the community. When he was recalled, he had yet to serve three months of the first half of his sentence, the so-called “custodial period” which confers no entitlement to be released on licence. Any licence of release during the custodial period must be subject to a curfew condition. If a prisoner on home curfew can no longer be electronically monitored, the secretary of state can exercise the power of recall under the Criminal Justice Act without the intervention of the Parole Board. The issue in this case was whether the release on home detention curfew constituted a the restoration of liberty during the custodial part of the sentence so that Article 5(4) was engaged if the prisoner was recalled. If the Convention was so engaged, he would have had a right of review by the Parole Board, and without it his recall would be unlawful.
The claimant relied on R (on the application of Smith) v Parole Board  UKHL 1, in which the House of Lords ruled that recall to prison depended on a fresh finding of fact to justify a new and independent deprivation of liberty. However that decision concerned recall during the non-custodial, second half of the sentence, during which a prisoner is entitled to consideration of release on licence.
The court rejected this appeal, holding that the renewed detention remained justified by the original sentence of imprisonment.
The Court’s reasoning
The safeguards under Article 5(4) applied to cases where the link with the original sentence imposed by the judge was broken, for example the imprisonment of somebody on bail. Home curfew during a custodial sentence was a different matter: the purpose of granting such freedom to the prisoner was to help him integrate into society. It was properly to be seen as a modified way of performing the original sentence imposed by the judge; the recall simply restored the primary way in which it was assumed that the sentence would be served.
the highly restricted liberty inherent in the home detention curfew scheme was intimately connected with the original custodial sentence. [para 33]
There is no doubt that a decision not to release on licence, whether home curfew detention or otherwise, does not engage Article 5 (R (on the application of Black)v Secretary of State for Justice (2009) andHussain v United Kingdom). Article 5(4) does not give a long term prisoner with a determinate sentence the right to take legal proceedings, at the half way stage of his sentence, to determine the lawfulness of his continuing detention. Nor does Article 5(4) apply to a refusal to release on home curfew detention: the period of detention is then still regulated by the decision of the court which imposed the original sentence. For the same reason, 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 his licence.
But it did not necessarily follow that whenever a prisoner is released on licence and later recalled before the custodial period has expired, the justification for his fresh detention will always be referable to the reasons justifying the original sentence. It may be that recall even during the custodial period could, in some circumstances, attract Article 5(4) safeguards. That issue did not ned to be resolved in this appeal.
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