The Supreme Court has handed down judgment in R (ota) Whiston v Secretary of State for Justice and held that recall to prison from home detention curfew (HDC) during the ‘custodial period’ of the sentence of a court, under the Criminal Justice Act 2003, s 255 does not amount to a fresh deprivation of liberty under ECHR, Article 5(4) so as to trigger a right to an Article 6-compliant review.
The Supreme Court held that the Strasbourg jurisprudence indicated that where a person was lawfully sentenced to a determinate term of imprisonment, he was not able to challenge his loss of liberty during that term on the ground that it infringed Article 5(4). This was because “the lawfulness of his detention” had previously been “decided . . . by a court”, in accordance with that Article. Where the Secretary of State exercised her discretion to release a prisoner before the end of the requisite custodial period of their sentence, Article 5(4) was not infringed if that licence was subsequently revoked.
The argument turned on an apparent anomaly between the approach taken by the House of Lords in R (West) v Parole Board  1 WLR 350 in which the House of Lords found that the recall of a prisoner (who had been released as of right after the custodial element of his sentence) for breach of his licence conditions did engage Article 5(4) – and the approach taken in HDC cases. In West the recall was held to be a new deprivation of liberty and so not authorised by the original sentencing decision. Did the fact of an intervening period of liberty cause a hiatus with the original authority for the custodial period such as to trigger a fresh right of review? The Supreme Court unanimously held that it did not – with Lady Hale helpfully clarifying that the rationale for the distinction between those recalled during the custodial period of a sentence and those recalled after mandatory release on licence was that in the former, the deprivation was related to the offence while in the latter to the risk of re-offending.
In the result, the Supreme Court has taken a decision which will not, as potentially feared, have a chilling effect on the use of HDC by imposing the administrative consequences of a right to hearing by the Parole Board.
The appellant was represented by Hugh Southey QC of Matrix Chambers and Amanda Weston of Garden Court Chambers. Amanda was instructed by Kathryn Mark of Chivers Solicitors.
A video of the handdown is available on YouTube.
The judgment is available here: R (on the application of Whiston) v Secretary of State for Justice  UKSC 39. You can download a PDF version here:  UKSC 38