FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 968/04 
by Peter BROWN 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 26 October 2004 as a Chamber composed of:

Mr M. Pellonpää, President
 Sir Nicolas Bratza
 Mrs V. Strážnická
 Mr J. Casadevall
 Mr R. Maruste
 Ms L. Mijović, 
 Mr D. Spielmann, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 22 December 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Peter Brown, is a United Kingdom national, who was born in 1962 and lives in Leeds. He was represented before the Court by Mr S. Purchas, a solicitor practising in Leeds.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In December 1997, the applicant was sentenced to eight years' imprisonment for supplying heroin.

On 12 April 2002, at the two-thirds point of his sentence, the applicant was released on licence, pursuant to section 33 of the Criminal Justice Act 1991. The licence expiry date was set at 29 April 2003, the three-quarter point of his sentence (section 37 of the Criminal Justice Act 1991).

The licence conditions included that he live “where reasonably approved by [his] supervising officer and notify him or her in advance of any proposed change of address”. A separate condition required him to live at his mother's address and not to live elsewhere without the prior approval of his supervising officer.  The applicant owned a house in Oulton, Leeds. The licence condition was designed to reduce contact with his erstwhile partner A., a drug addict who lived at that address, with his daughter C. and her other daughter. He was allowed to visit his daughter C. at that address.

In early November 2002, A. left the Oulton house and did not return. The applicant moved in to look after the children, there being insufficient room at his mother's home.

On 25 November 2002, at his next probation appointment, the applicant informed his probation officer that he had moved. The applicant states that no action was taken or direction given that he leave the address.

The applicant states that allegations of domestic violence were made by A. to her own probation officer, although not to the police. On the basis of these allegations, a request was made by senior probation officers (not including the applicant's) that he be recalled to prison for breach of his licence conditions.

On 19 December 2002, the applicant was recalled to prison for breach of the residence condition in his licence by the Home Secretary under section 39 of the Criminal Justice Act 1991. In the document setting out the reasons for recall, it was stated that he was recalled because he had moved without prior approval and the risk that he posed because of his antecedents and his behaviour in moving meant that it was not right for him to remain on licence.

On 23 December 2002, the applicant's solicitors made representations to the Parole Board which had the power to order his release, in which he inter alia denied the allegations of domestic violence and alleged that the decision to recall was based on insufficient information, largely an unreliable account of A. and without any investigations being carried out.

On 15 January 2003, the applicant was informed that his representations had been rejected. The decision stated that the applicant had clearly breached the conditions of his licence by not residing at his mother's address as instructed, nor had he notified his supervising officer in advance of his proposed change of address. The condition had been specifically inserted in his licence to reduce contact with his ex-partner. This failure to comply with the licence conditions suggested that the objects of probation supervision had been undermined.

The applicant instituted proceedings for judicial review, challenging that decision as unlawful, disproportionate or unreasonable and as following an unfair or unlawful process; he argued that both the common law and Articles 5, 6 and 8 of the Convention had been breached and sought damages.

On 11 April 2003, the High Court judge refused permission, finding that the Parole Board had not revoked his licence because of allegations by A. or suspicions as to drug-taking. He noted that the reasons given were clear, that the applicant had notified the probation service after the event and the condition had been inserted to prevent/reduce contact with A. He held that the Board was entitled to regard the breach of the condition in those circumstances as justifying recall.

The applicant's renewed application was rejected by a different High Court judge on 11 June 2003. He noted a report prepared for the Parole Board prior to his release which stated:

“Although there are no current drug concerns it would be unrealistic to suggest that [the applicant] will not be 'at risk' post release. An additional licence condition to initially reside at his parents ... and not to move in with his partner Ms A. until he has demonstrated that he has remained drug-free for a significant period and she has overcome her own drug problem seems appropriate. Although such a condition would not prevent him seeing Ms A. and providing support to his children, it would allow the Probation Service to monitor the situation closely.”

The judge found nothing unfair in the procedure whereby the Parole Board rejected the applicant's representations and held that although the decision was harsh it was impossible to say that it was arguably irrational: the Parole Board had known all the facts and the fact that the girl friend was not at the address when he moved there did not entitle him to breach his licence.

On 22 September 2003, the Court of Appeal refused permission to appeal. The judge stated:

“The procedure was fair. The Appellant broke a condition of residence which was important and of which he was well aware. He was given the opportunity to make representations and the representations he made were considered. The decision did not depend on the truth of the allegations made by Ms. A. and the Parole Board was right not to attempt any investigation of her allegations. The reasons given for the decision were adequate and ... rational. Even if it could be argued that it was harsh, it was not disproportionate.”

Concerning the applicant's arguments under the Convention, the judge referred to domestic case-law on the point (see below).

On 30 September 2003, the Legal Services Commission refused to fund a renewed application to the Court of Appeal.

B.  Relevant domestic law and practice

On 13 November 2002, R. (West) v. the Parole Board ([2003] Prison Law Reports 70, the Court of Appeal rejected, by two votes to one, the argument that the recall of a prisoner on licence who has been serving a determinate sentence amounted to a determination of a criminal charge for the purposes of Article 6 of the Convention.

On 31 July 2003, in R. (Smith) v. the Parole Board ([2003] EWCA 1269), the Court of Appeal held that neither Article 5 nor the civil provisions of Article 6 were engaged by recall of a prisoner on licence serving a determinate sentence.

COMPLAINTS

1.  The applicant complained under Article 5 of the Convention that his recall was unlawful and disproportionate to the aim being secured. It was based on a technical breach of a condition which had not caused his probation officer to take action at the immediate time and the purpose of the condition was not undermined by the breach as Ms A. was not present at the house when he moved in. The failure of the Parole Board to make any reference to future compliance in accordance with the directions of the Home Secretary meant that the Board had not taken all relevant matters into account and rendered the decision disproportionate and “not in accordance with the law”. On the facts there was also insufficient causal connection between the detention following recall and his original detention, namely no link with the sentence for drug supplying and so there was a breach of Article 5 § 1(a) in that regard.

2.  The applicant complained under Article 5 § 4 that there was a change in the basis of his detention, namely his recall was for preventive rather than punitive reasons and he was therefore entitled to a court-like review of his continued detention and to test whether it was justified.

3.  The applicant complained under Article 6 that in reality he was punished for the criminal offence of breaching a licence condition and, on suspicion of committing underlying criminal offences (drugs/domestic violence), detained for a further four months and that the rights guaranteed by Article 6 should have been afforded. He also claimed that there was a determination of his civil right to liberty and to be with his daughter under Article 8, the interference with which was not “in accordance with the law” and disproportionate.

THE LAW

1.  The applicant complains about his recall to prison invoking Article 5 of the Convention which provides as relevant:

“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; ...”

The Court recalls that the applicant was sentenced to a determinate prison sentence of eight years after conviction by a competent criminal court and accordingly, his detention fell within sub-paragraph 1(a) above.

The applicant seeks to argue that after his release on licence he was lawfully at large and his situation was analogous to the situation applicable to the conditional liberty allowed to those on life licence (for example, Weeks v. the United Kingdom, judgment of  2 March 1987, Series A, no. 114) and restricted patients on release from hospital (for example, X. v. the United Kingdom, judgment of 5 November 1981, Series A, no. 46) and therefore that his recall had to be properly linked to the basis of his original conviction and in conformity with the varying requirements of Article 5.

The Court considers however that there is a crucial distinction between the cases cited by the applicant and the circumstances of his own case. Discretionary and mandatory lifers, after the expiry of the punitive element of their sentence, are detained on the basis of risk – the justification for their continued detention is whether it is safe for the public for them to live in the community once more. Similarly the recall of restricted patients is based on factors arising from their mental health. The applicant however has been sentenced to a fixed prison term by a court as the punishment for his offence. The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re-offending. The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within the scope of Article 5 § 1(a) of the Convention.

Article 5 § 1 does provide that at all times detention must be “in accordance with the law”. The Court notes that the basis for the applicant's recall was considered by the Parole Board, which found that he was in breach of the terms of his licence, and that its decision was in turn subject to judicial review. In the judicial review proceedings the applicant's arguments concerning the lawfulness of his recall and the Parole Board's procedure were rejected by the High Court and the Court of Appeal. On the whole bound to respect domestic courts' interpretation of domestic law (see for example, Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, § 41), the Court detects no arbitrariness or other feature that would justify it departing from their assessment.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complains of lack of a court review of the justification of his continued detention after recall, invoking Article 5 § 4 of the Convention which provides:

“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”.

The Court recalls that where an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures (see, mutatis mutandis, V. v. the United Kingdom, no. 24888/94, ECHR 1999-IX, § 119; Stafford v. the United Kingdom, § 87). No new issues of lawfulness concerning the basis of the present applicant's detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of Article 5 § 4 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3.  The applicant complains under Article 6 of the Convention that he had no proper access to a court to review his deprivation of liberty.

Article 6 § 1 of the Convention provides:

“ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Court observes that the applicant invokes Article 6 in both its criminal and civil aspects.

As concerns the criminal head, the Court rejects the applicant's argument that his recall amounted to punishment for a criminal offence. Neither by classification in domestic law nor on consideration of the nature of the “offence” does breach of a residence condition in a licence appear as criminal. The domestic courts found that the Parole Board decision was based on the applicant's failure to follow the conditions concerning his residence and not on assertions of domestic violence. Nor is the fact that the decision to recall resulted in the applicant being in prison for another four months under the sentence originally imposed by the trial court sufficient to bring the matter within the scope of a “criminal charge”. In the circumstances this detention remains linked to the original conviction not to any imposition of a sanction for any new criminal conduct.

Even assuming that the right to liberty is a civil right (for example, Aerts v. Belgium,  judgment of 30 July 1998, Reports 1998-V, § 59), the Court notes that this applicant may bring proceedings in the domestic courts to assert the unlawfulness of his detention and claim damages at any time. The fact that the domestic courts might reject such claims, as happened in this case, does not affect the availability of access to court for the purposes of Article 6.

It follows that these complaints must be rejected, respectively, as incompatible ratione materiae and manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4.  The applicant finally complains that his recall prevented him from being with his daughter. Article 8 of the Convention provides as relevant:

“1.  Everyone has the right to respect for his ... family life, ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Assuming the decision to recall the applicant to prison interfered with his right to respect for his family life, the Court considers that it was “in accordance with the law” and must be regarded as “necessary in a democratic society” for the aim of the prevention of crime and disorder, namely, as part of the lawful execution of sentences imposed by competent criminal courts. As pointed out by the Court of Appeal, the applicant was well aware of the condition in his licence and that he was subject to recall during his licence period. Nor has he provided any explanation for his failure to notify his probation officer in advance as he was required to do. The Court finds no suggestion of disproportionality.

It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Matti Pellonpää 
 Registrar President

BROWN v. THE UNITED KINGDOM DECISION


BROWN v. THE UNITED KINGDOM DECISION