The parole board's decision to continue to detain a prisoner who had been subject to recall during an extended licence period was a decision which attracted the safeguards of Art.5 European Convention on Human Rights and therefore the detention had to be consistent with the objectives of the original sentence and would be subject to regular reviews compliant with Art.5.4Appeal by the Home Secretary as to how Art.5 of the European Convention on Human Rights affected the detention of an offender who had been recalled to prison while on licence under an extended sentence passed under s.85 Powers of Criminal Courts (Sentencing) Act 2000. The respondent ('S') was convicted of two offences of indecent assault and an offence of indecency with a child under 14 years old. In February 2000 S was sentenced to an extended sentence under s.85 of the 2000 Act. The sentence consisted of a custodial term of two and a half years and an extension period of five years. S was released from prison having served half his sentence in January 2001. The terms of his licence placed S under supervision until his licence expired in August 2006 and required him to comply with certain conditions. In July 2001 S's supervising officer requested his recall to custody for three reasons: (i) S had not returned to his bail hostel one night; (ii) he had been arrested with regard to an alleged indecent exposure to teenage girls; and (iii) he had returned to the bail hostel under the influence of alcohol on two occasions. The Home Secretary revoked S's licence and recalled him to prison as he had broken the conditions of his licence. S contested this decision and an oral hearing took place following which the Parole Board refused to direct his release. S then brought judicial review proceedings to quash that decision. At that stage S was no longer suspected of the indecent exposure offence. Elias J found that there was no basis for quashing the Parole Board's decision which was justifiable and involved no unfairness. He further made two declarations: (a) that the decision to continue to detain a prisoner who had been subject to recall during an extended licence period was a decision which attracted the safeguards of Art.5 and therefore the detention had to be consistent with the objectives of the original sentence and would be subject to regular reviews compliant with Art.5.4; and (b) Section 44A(4) Criminal Justice Act 1991 should be construed so that the Parole Board was obliged to conclude that it was no longer necessary to detain the recalled prisoner unless the Board were positively satisfied that the interests of the public required that he should be confined. The Home Secretary appealed Elias J's two declarations. S raised a cross-appeal on whether hearsay evidence was rightly admitted at the Parole Board hearing.HELD: (1) The crucial question was whether the subsequent detention after recall of a person in S's position could be said to be justified under Art.5(1)(a) because of the original sentence imposed by the court. Where an offender was detained during the extended period of a s.85 sentence, such detention was subject to review by a judicial body. No court had ordered his detention during that period and prima facie the sentencing court took the view that he could be dealt with in the community during that period. That was the critical factor which distinguished the situation from that considered in R (Giles) v Parole Board (2003) UKHL 42 and R (Smith) v Parole Board (2003) EWCA Civ 1269, both of which were concerned with detention falling within the term of imprisonment imposed by the competent court. In cases of extended sentences under s.85, it was the executive which decided upon an offender's recall and because that detention was not ordered by a court it had to be supervised by a judicial body. It was so supervised as provided by s.44A of the 1991 Act. Therefore Elias J was correct in his conclusion on the first issue, Art.5(4) applied to decisions to recall and detain an offender serving a s.85 extended sentence who had been released on licence. (2) All parties agreed that the wording of s.44A(4) of the 1991 Act could be read and given effect to in the way identified by Elias J through the application of s.3 Human Rights Act 1998. Elias J construed the provision flexibly so that the Parole Board had 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. No argument was raised that such a construction was impossible through the use of s.3 of the 1998 Act therefore it was accepted that such a construction could properly be achieved. The appeal on the second issue was therefore ill founded. (3) The disputed matters of hearsay evidence were not the key factors in the Parole Board's decision and as such did not render the proceedings unfair or in breach of S's Convention rights. The board's decision was not perverse and the board was entitled to take the view that it did.Appeal dismissed, cross-appeal dismissed.

[2003] EWCA Civ 1845

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