Johnson v Secretary of State for the Home Department  EWCA Civ 427 (9 May 2007)
The UK Court of Appeal has held that a delay in determining eligibility for parole may amount to arbitrary and unlawful detention.
This was an appeal from a decision of a deputy High Court judge. The applicant, Mr Johnson, was sentenced in May 2000 to seven years in prison. This meant he was a ‘long term prisoner’ under the Criminal Justice Act 1991 (UK) c 53. As such he was entitled to be released on license after he had served half his sentence if the Parole Board (‘Board’) so recommended. Six months before he was eligible for parole, Mr Johnson indicated that he wished to be considered for parole. While decisions were usually taken by the Board prior to the prisoner’s parole eligibility date, Mr Johnson’s application for parole had not been heard almost eight and a half months after the eligibility date. In this time Mr Johnson sought permission to apply for judicial review. On 13 February 2004, the Board recommended Mr Johnson’s release and he was released ten days later. Mr Johnson alleged that the Board’s delay in hearing his case was a breach of art 5(4) of the European Convention on Human Rights, as protected by the Human Rights Act 1998 (UK), which provides that: 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 his detention is not lawful. Mr Johnson claimed he had an enforceable right to compensation under art 5(5) of the Convention. At first instance Sullivan J refused permission to apply for judicial review because the parole application had, by then, been considered and damages was not an available remedy under the law at that time. Mr Johnson appealed, and after a change in the law, was granted permission to apply for judicial review. The deputy high court judge considered there was no breach of art 5(4) of the Convention and consequently did not address the question of compensation under art 5(5). Mr Johnson appealed.
Decision of the Court
The Court of Appeal found there had been a breach of art 5(4) of the Convention as Mr Johnson’s detention had been arbitrary, and therefore unlawful, for the period between his becoming eligible for parole and his release. The matter
was remitted for consideration of appropriate compensation under art 5(5). The Court relied on the decision in R (Clift) v Secretary of State for the Home Department  UKHL 54, where the House of Lords held that the right to liberty protected by art 5 of the Convention applied to any provision in domestic law allowing a prisoner to seek early release. Although art 5 does not require an early release scheme to be put into place, once such a scheme is in operation art 5 applies to it. The Court considered that a determinate sentence is a ‘composite package’: art 5(4) applies once the non-parole period is over but does not apply while parole is not available. The Court considered that, for the purpose of art 5(4), the situation of Mr Johnson was analogous to that of a prisoner serving an indeterminate (life) sentence. The application of art 5(4) to indeterminate sentence prisoners was considered in R (Noorkoiv) v Secretary of State for the Home Department  EWCA Civ 770. In that case, the Board was under a statutory duty to hear the parole application of an indeterminate sentence prisoner once he became eligible for parole. It was held that art 5(4) was violated by the Board’s failure to hear the application speedily. The Court considered that this case applied equally to determinate sentence prisoners, and that the absence of a statutory obligation to hear Mr Johnson’s parole application was immaterial. In both situations the prisoners’ applications were treated arbitrarily because different determinate or indeterminate sentence prisoners were having their parole applications heard ‘at different periods of time after their eligibility date’. Thus although Mr Johnson’s detention was not itself arbitrary, it was unlawful because he could show that, had his parole hearing occurred earlier, he would have been released earlier. Thus there was ‘an unjustified and … arbitrary period of delay’ contrary to art 5(4), which gives a prisoner a right to have his parole application heard speedily so that his detention does not become arbitrary.
Implications for the Victorian Charter
Section 32(2) of the Charter permits Victorian courts to use the judgments of foreign courts to assist in the interpretation of Charter rights. The judgment of the Court in this case will be relevant to future consideration of s 21(7) of the Charter, which provides that ‘[a]ny person deprived of liberty … is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must: (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.’ Of particular interest is the finding that the equivalent to s 21(7) will be breached where a prisoner is eligible to make a parole application but that parole application is not considered promptly. The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2007/427.html. Jane Tipping, Human Rights Law Group, Mallesons Stephen Jaques