Case no: C1/2012/2477 Neutral Citation Number: [2013] EWCA ...

Neutral Citation Number: [2013] EWCA Civ 604 Case no: C1/2012/2477
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION Royal Courts of Justice
ADMINISTRATIVE COURT Strand
(MR JUSTICE SILBER)
London WC2A 2LL
Before: Monday, 22 April 2013
LORD JUSTICE MAURICE KAY

LADY JUSTICE BLACK
LADY JUSTICE RAFFERTY

Between: Appellant
Respondent
WEST

v

GOVERNOR OF HER MAJESTY'S PRISON BURE

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The Appellant appeared in person

Mr Christopher Staker (instructed by Treasury Solicitor) appeared on behalf of the
Respondent

JUDGMENT
(As Approved by the Court)

Crown copyright©

Lady Justice Rafferty:

1. This is an appeal against the judgment of Silber J on 7 August 2012 refusing the appellant
Mr Russell West's application for habeas corpus.

2. A certain amount of background is essential for an understanding of Mr West's
submissions, for which I for one am grateful. On 17 May 2010 in the Glasgow High
Court Mr West was convicted of indecent behaviour toward a girl contrary to section 6 of
the Criminal Law (Consolidation) Act 1995 (the Glasgow conviction). On 14 June 2010
in the Edinburgh High Court under section 210A of the Criminal Procedure (Scotland)
Act 1995, there was imposed an extended sentence of five-and-a-half years (the
Edinburgh sentence), its custodial term two-and-a-half years, its extension period three
years. On expiry of the custodial term the appellant would remain on licence for a further
three years (section 210A(2)(b)). The extension period was subject to sections 26A(3)
and (4) and to section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

3. On 18 January 2011, having served half the custodial term, the appellant was released on
licence to remain in force until the expiry of his extended sentence (section 26A(4) of the
Prisoners and Criminal Proceedings (Scotland) Act 1993).

4. I must deal, before moving on, with the position as understood before Silber J. Rather
than a formal order under the Crimes (Sentences) Act 1997, informal arrangements for
transfer to England of the appellant's supervision allowed him during his licence to live in
England. He abided by one condition of release, in that he reported to a hostel in
Ipswich, but a breach of his reporting conditions was subsequently notified by Essex
Probation Services to the Scottish Government.

5. On 1 February 2011 the Parole Board of Scotland revoked his licence and directed he be
re-detained. He had failed to keep in touch with his supervising officer, to inform him of
changes to residence or employment and to live in supported and then in approved
accommodation. He stayed at the approved hostel on the night of 17 January 2011 at
least. The next day he met his offender manager and public protection officers, signed
the Sex Offender Register, but thereafter failed to report back to the hostel and became an
absconder.

6. The licence remained in force until the end of the extension period. The 1 February 2011
decision of the Parole Board of Scotland under section 17 revoked it in relation to the
whole period.

7. On 14 March 2011 the appellant was arrested in Southend in Essex. The relevant
Parole Board report recites that, wearing a knuckleduster-type ring, he punched a police
officer in the face. The following day magistrates convicted him of possession of an
offensive weapon and of assaulting a police constable, committed him to the Crown
Court at Basildon for sentence and there, on 4 April 2011, he was sentenced to nine

months' imprisonment (the Basildon sentence) concurrent with any other existing period
of imprisonment. Since that date he has been a prisoner at Her Majesty's Prison Bure in
Norfolk.

8. By 19 August 2011 he had served half the Basildon sentence, and it expired on
3 January 2012. Absent any other sentence or custodial requirement, he would have been
released on 19 August. However, he remains imprisoned serving the balance of the
Edinburgh sentence after revocation of his licence.

9. On 11 October 2011, having considered the matter, the Parole Board for Scotland did not
order his immediate release. After the hearing before Silber J, on 30 October 2012 it
considered the appellant's case again and in a letter dated 9 November 2012 explained to
him its decision that he should continue to be confined for the protection of the public
from serious harm. He remains liable to be detained until his sentence expiry date of
28 May 2015 unless his earlier release is directed by the Parole Board or by the Secretary
of State for Justice.

10. His argument is that the custodial element, two-and-a-half years, of his sentence having
expired, he is in the three-year extension period and he should, as the sentencing judge
had in mind he contends, be released for "supervision in the community", the very
purpose of the sentence period.

11. Although I readily understand why Mr West has made the submissions he does, that is a
misreading of the legislation and a misconstruction of the sentencing remarks and
particularly of their power.

12. Section 26A(3) of the Criminal Proceedings (Scotland) Act 1993 provides that on release
on licence, in this case January 2011, the appellant's licence remained in force until the
end of the extension period, subject to revocation. Revocation by the Parole Board of
Scotland (February 2011) left him liable to be detained until the end of the extension
period.

13. Before Silber J, the respondent, represented today by Mr Christopher Staker, had argued
that the transfer of supervision from Scotland to England was pursuant to paragraph 4,
Schedule 1, of the Crimes (Sentences) Act 1997. Such a transfer could be restricted or
unrestricted (paragraph 6(1) of Schedule 1). To an unrestricted transfer paragraph 15(4)
of the schedule would apply. To a restricted, paragraphs 6(2)(c), paragraph 6(3) and
10(5) would apply. Without a transfer of supervision the Probation Service in Essex
would have known nothing of the appellant. Had the transfer been unrestricted, then the
Probation Service would have reported the breach of reporting conditions to the English
authorities rather than the Scottish, and the Parole Board of Scotland would not have
revoked the licence.

14. Each authority acted consistently with a restricted transfer. Indeed, in documents
dated January 2012 the appellant had sought transfer to England for the most
understandable of reasons.

15. Silber J was satisfied that the appellant was the subject of a restricted transfer. On that
basis, the respondent argued that the Prisoners and Criminal Proceedings (Scotland) Act
continued to apply in place of corresponding provisions in the law of England and Wales.
The effect is that the authorities in Scotland made determinations as to the recall and
release on licence pursuant to legislation in force in Scotland. That said, the appellant is
imprisoned in England as if his period of supervision had been an equivalent period
directed to be undergone in England and Wales.

16. Mr West has today conceded that there is nothing in any of his complaints based on
transfer and the legislative scheme is included in this judgment for the purposes of
completeness and no more.

17. Mr West's complaint before us centres upon Article 5 of the Human Rights Act. His
submission is that since the period of the custodial term has been served, upon his release
he was, by definition, within the supervision period and as such his recall and his
languishing in custody is impermissible.

18. He relies upon Article 5(1) and 5(4) of the European Convention on Human Rights to
challenge the lawfulness of his detention. He sensibly concedes that his grounds should
be read as one overarching point, albeit presented in a triad.

19. His first ground relies on Article 5(1) which reads, where relevant:

"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..."

20. His imprisonment to the end of the extension period following recall is in fact detention
by a competent court in accordance with the procedure prescribed by the statute. In any
event, a challenge in habeas corpus against the Governor of Her Majesty's Prison Bure is
misconceived even were the merits with the appellant (and they are not) since he could
hope to challenge only the Parole Board of Scotland. His argument is that the extension
period of three years was for "supervision in the community" and that imprisonment
during that extension period cannot be for this purpose (supervision in the community)
and is thus not prescribed by law for the purposes of Article 5(1).

21. This argument is unsustainable. The legislation provides that during the extension period
the appellant was on licence; his licence is revocable; and revocation is of the entire
remaining period: that is, the period until the end of his extension period. Since the

legislation does not state that the purpose of an extension period is to provide supervision
in the community, it follows that revocation and recall are not inconsistent with the
legislative purpose. It is true that in the sentencing remarks the judge made reference to a
period of supervision in the community, but one judicial reference to that effect cannot
override provisions of primary legislation. In any event, the sentencing judge, as a
contextual reading of his remarks makes plain, was aware of the legislation and loyally
followed it, as is clear from this quotation:

“The conditions of your licence will be fixed by the
Secretary of State. If, during that extension period, you
fail to comply with the conditions of your licence, it may
be revoked and you may be returned to custody for a
further period in respect of that case."

22. The effect of Mr West's submission is a challenge to primary legislation as inconsistent
with Article 5, in reliance at least in part on Weeks v the United Kingdom [1987] 10
EHRR 293 (Weeks) and the decision of the High Court in R(Sim) v the Parole Board
[2003] EWHC 152 (Admin) (Sim).

23. In deference to the well shaped arguments advanced by the appellant, I shall distil the
competing facts of Weeks and of Sim.

24. Weeks was 17 and sentenced to a discretionary life term for armed robbery. The
Secretary of State could thus have ordered his release once - if it were - it was concluded
that he no longer posed a danger to the public. The European Court of Human Rights
said:

“The intention was to make the applicant, who was
qualified both by the trial judge and by the Court of
Appeal as a ‘dangerous young man’, subject to a
continuing security measure in the interests of public
safety. The sentencing judges recognised that it was not
possible for them to forecast how long his instability and
personality disorders would endure… they accordingly
had recourse to an ‘indeterminate sentence’: this would
enable … the Home Secretary, to monitor his progress and
release him back into the community when he was no
longer judged to represent a danger to society or to
himself… In substance, Mr. Weeks was being put at the
disposal of the State because he needed continued
supervision in custody for an unforeseeable length of time
and, as a corollary, periodic reassessment in order to
ascertain the most appropriate manner of dealing with
him.

The grounds expressly relied on by the sentencing courts
for ordering this form of deprivation of liberty … are by
their very nature susceptible of change with the passage of
time, whereas the measure will remain in force for the
whole of his life. In this, his sentence differs from a life
sentence imposed on a person because of the gravity of the
offence."

25. Weeks was released on licence and recalled. He argued that his loss of liberty was
satisfied upon his release, the link broken at that stage, his rights under Article 5 restored
and his re-detention, fifteen months later, no longer justified under Article 5(1)(a).
Rejecting his claim for violation of Article 5(1), the court said:

“As a matter of English law, it was inherent in Mr. Weeks’
life sentence that, whether he was inside or outside prison,
his liberty was at the discretion of the executive for the
rest of his life (subject to the controls subsequently
introduced by the 1967 Act, notably the Parole Board).
This the sentencing judges must be taken to have known
and intended. It is not for the Court, within the context of
Article 5 (art. 5), to review the appropriateness of the
original sentence…

In this area, as in many others, the national authorities are
to be recognised as having a certain discretion since they
are better placed than the international judge to evaluate
the evidence…

In view of this unstable, disturbed and aggressive
behaviour, there were grounds for the Home Secretary to
have considered that the applicant’s continued liberty
would constitute a danger to the public and to himself. The
Minister’s decision to re-detain remained within the
bounds of the margin of appreciation available …it cannot
be regarded as arbitrary or unreasonable in terms of the
objectives of the sentence imposed…

In the Court’s view, therefore, a sufficient connection, for
the purposes of sub-paragraph (a) of Article 5 para. 1
existed between his conviction in 1966 and his recall to
prison in 1977.”

26. In Mr West's case the objective of the extension period was to put in place an extended
period of licence, during which, as I have explained, he might be recalled if necessary.
His licence was revoked in part because he absconded the day after release.
In October 2011 when the Parole Board for Scotland declined to order his re-release it
did so because (a) he had been unlawfully at large until arrest; (b) on arrest he assaulted a

police officer; (c) he was assessed as presenting a high risk of harm to children; (d), he
had done no work to address the risk; and (e) the risk was unacceptable and could not be
managed in the community.

27. There is, in my view, a plain connection between his recall and the intention of the
sentencer.

28. Mr West also relies upon Sim. Sim was a sex offender on whom an extended sentence
had been imposed and he was recalled after release on licence. At first instance,
considering whether Article 5(1) applied to a decision to recall in those circumstances,
Elias J said:

"In my judgment there is no infringement of Article 5.1
when a prisoner on licence is detained whether following
breach of the terms of the licence or because other
information raises fresh fears that he may commit further
offences. There is not in those circumstances a severing of
the causal link between the sentence for the original
conviction and the subsequent detention. On the contrary,
the sentencing judge will have appreciated at the time of
imposing the original extended sentence that there is a
possibility that further imprisonment may arise if there can
be no effective supervision ... in the community, or if that
supervision is failing to achieve its objectives. Such
detention is linked to the original sentence; indeed, it is
necessary to make the extended licence period effective. If
the very principle of recall were unlawful, there would be
no sanction for breaches of the licence which
demonstrated that the risk of further offending could not
be controlled by supervision in the community, and the
objective of the sentence would thereby be defeated.

Similarly, I do not accept that the fact that the sentence
may be for the duration of the extended sentence makes it
disproportionate. The sentence is subject to periodic
supervision, as Article 5.4 requires ..."

29. On appeal, R(Sim) v the Parole Board [2003] EWCA Civ 1845, Keene LJ said:

"...when an offender is detained during the extension
period of a section 85 sentence, such detention must be
subject to review by a judicial body. No court has ordered
his detention during that period: prima facie the sentencing
court took the view that he could be dealt with in the
community during that period ... In cases of extended

sentences under section 85, it is the executive which
decides upon an offender's recall ... and because that
detention has not been ordered by a court it must be
supervised by a judicial body. Otherwise there is a danger
of an arbitrary decision being made by the executive ... it
is so supervised ... through the mechanism of the Parole
Board ... Elias J was right in the conclusion which he
reached on this issue."

Consequently, Mr West's recall by the Parole Board of Scotland of his continued
imprisonment during the extension period is not inconsistent with Sim, and a true reading
of Sim cannot assist him.

30. His second Ground is that the Edinburgh sentencing judge was not entitled to impose an
extension period because the requirements of section 210A of the Criminal Procedure
(Scotland) Act 1995 went unsatisfied. That section mandates an extension period where
the court considers that the period for which the offender would otherwise be subject to a
licence would not be adequate for the purpose of protecting the public from serious harm
from him.

31. The appellant argues that the sentencer was not entitled to conclude that he posed a risk
of "serious harm" to the public. He has developed that point today by reference to the
degree of the harm involved in the offences for which he variously answered. He has
four examples. He remarked that although assaulting a police officer, he concedes,
confronts him with a difficulty, the harm he caused was far nearer the offence of common
assault than that of assault occasioning actual bodily harm, let alone of grievous bodily
harm. Indeed, the originating offence, sexual impropriety, did not within it contain any
suggestion of violence, and he reminds us there has been no suggestion of sexual
impropriety after release.

32. This Ground amounts to a challenge on the merits to the Edinburgh sentence. It should
have been brought in an appeal against the sentence in the relevant court and in Scotland.
Mr West has told us of the chronicle of appeals he has mounted, every one of them
unsuccessful. An appeal against sentence cannot be brought by way of habeas corpus
against the Governor of the prison in which it is currently served. The sentencing judge
said:

"I am concerned by the terms of the social inquiry report
and your attitude as revealed in it. It is clear that you still
present a risk and that has to be addressed, and in my view
you require an additional period of supervision on release
and for that reason I intend to pass an extended sentence."

In any event, the Parole Board for Scotland in its October 2011 decision recited the litany
of failures with which I have already dealt.

33. Although I think I understand Mr West's cast of mind and the route that leads him to
express this particular grievance, nevertheless he has not established any error of law in
the sentencer's conclusion that any period of licence to which Mr West would otherwise
be subject would not be adequate for the protection of the public from serious harm from
him. Consequently, the sentence is squarely within the meaning of section 210A of the
Criminal Procedures (Scotland) Act 1995, and leaving aside Mr West's contentions that
his previous offending may have involved violence but, at the most, minor harm, and
leaving aside what those comments might reveal about his level of insight, that was not
the issue for the sentencer. The issue was not serious harm in the past, but a risk of
serious harm in the future.

34. The final authority on which Mr West relies is Stafford v United Kingdom [2002] 35
EHRR 32. The court there said:

"[The applicant] must be regarded as having exhausted the
punishment element for his offence of murder – if this
were not the case, it is hard to understand why the
Secretary of State allowed his release ... When his
sentence for the later fraud offence expired ... his
continued detention under the mandatory life sentence
cannot be regarded as justified by his punishment for the
original murder. Nor, in contrast to the recall of ... Weeks,
was the continued detention of the ... applicant justified ...
on grounds of mental instability and dangerousness to the
public from the risk of further violence. The Secretary of
State expressly relied on the risk of non-violent offending
by the applicant. The Court finds no sufficient causal
connection ... between the possible commission of other
non-violent offences and the original sentence for murder
in 1967 ...

There was no power under domestic law to impose
indefinite detention ... to prevent future non-violent
offending ..."

35. Elaborating his submissions in the light of Stafford, Mr West points out that he was
recalled, as he understands it, for leaving his hostel in the first place, and for assaulting a
police officer in the second. He relies on the points with which I have earlier dealt in
fortifying this submission that there has been, after his initial arrest for a sexual offence,
no suggestion of similar offences after release, and that he cannot, on any view, on his
contention, have been said to have caused serious harm whilst on release.

36. There is a range of problems confronting him in this particular submission. First among
them is that the degree of harm attributable to him is a matter for assessment by the
Parole Board. He was recalled by the Parole Board for Scotland whilst on licence for the
offence for which he had been convicted in Scotland and before his conviction in

England for assault. He was therefore not re-detained because of that subsequent
offence. On any view, Stafford does not assist him.

37. His final ground is that Article 5(4) reads:

"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."

And, relying again on Weeks, he argues that he is entitled to ask a court to review the
lawfulness of his detention and order his release. Weeks, he suggests, decided that
Article 5(4) prevents decisions on the recall from licence being taken by the Parole Board
rather than by the court. In Weeks the court said:

"The ‘court’ referred to in Article 5 para. 4 does not
necessarily have to be a court of law of the classic kind
integrated within the standard judicial machinery of the
country ... The term ‘court’ serves to denote ‘bodies which
exhibit not only common fundamental features, of which
the most important is independence of the executive and
of the parties to the case ... but also the guarantees’ –
‘appropriate to the kind of deprivation of liberty in
question’ ... In addition, as the text of Article 5 para. 4
makes clear, the body in question must not have merely
advisory functions but must have the competence to
‘decide’ the ‘lawfulness’ of the detention and to order
release if the detention is unlawful. There is thus nothing
to preclude a specialised body such as the Parole Board
being considered as a "court" within the meaning of
Article 5 para. 4..."

38. The court went on to decide that the procedural mechanism then in existence for the
Parole Board to order recall did not satisfy the requirements of Article 5(4) because the
duty on the Board to act fairly had not been made out in procedure. That procedure did
not allow proper participation by the individual adversely affected.

39. The conclusion in Stafford was reached on an assessment of law and an interpretation
then prevailing as applied to the facts of the case. Here, the appellant has not identified
any aspect of current powers or procedure of and deployed by the Parole Board of
Scotland which were not Article 5(4) compliant. Assuming for a moment that he had
succeeded, his challenge would be to the powers, procedures and one decision of the
Parole Board of Scotland, not in habeas corpus proceedings against the Governor of Her
Majesty's Prison Bure.

40. In conclusion, therefore, I have tried to follow the presentation style of Mr West, for
which I am grateful, and considered his three Grounds of appeal within his overarching
submissions on Article 5(4) against the factual and procedural backdrop which brought
him here. For the detailed reasons I have given in this brief judgment, I am against him
on every one of his submissions and I would dismiss this appeal.

Lady Justice Black:

41. I agree.

Lord Justice Maurice Kay:

42. I also agree. The appeal is therefore dismissed.

Order: Appeal dismissed