Hilland, Re Application for Judicial Review (Northern Ireland) (Rev1) [2024] UKSC 4
Citation:Hilland, Re Application for Judicial Review (Northern Ireland) (Rev1) [2024] UKSC 4
Rule of thumb: If a prisoner is out on license/parole & there is ‘reasonable suspicion’ of them committing another criminal offence – with no conviction – what happens to them? They are to be immediately sent back to jail – if a person has any association with crime when out on parole they are straight back to jail until the Police investigation in the case is over.
Background facts: This case is on the subjects of criminal procedure, and prisons & rehabilitation.
The facts of this case were that Hilland had numerous convictions for driving whilst under the influence of drink/drugs. Hilland was sentenced to 2 years in prison for this. The sentence stated that the first year was to be spent in prison, and the next year he was to be allowed out on license/parole. Hilland completed the first & was back out on parole. Hilland was suspected by Police of driving again whilst disqualified & under the influence of drink/drugs. Police were in the early stages of prosecuting Hilland for this. Hilland intended to plead not guilty to these charges. The Prison Service of Northern Ireland then recalled Hilland to prison to complete the remaining part of his sentence behind bars.
Parties argued: Hilland argued that it was only ‘reasonable suspicion’ of the criminal offences he was accused of, but he had not actually been convicted, so he argued that it was a violation of his Article 14 Right to Prohibition on Discrimination & his Article 5 Right to Liberty for him not to remain out on license/parole until the allegations were proven. The Prison Service argued that being under reasonable suspicion of criminal offences whilst out on parole was a black & white breach of parole conditions which meant that the convicted person had to return to prison – it is a term of the parole/license that the convicted stays completely away from criminal offences.
Court held:
Ratio-decidendi:
143. ‘Adapting the words used by the ECtHR in Stott v UK, at para 106, I consider that the aim pursued by the different sentencing regimes, of which the practice as to the revocation of a prisoner's licence and their recall to prison form part, is to cater for different combinations of offending and risk in appropriate ways. I also consider this to be a legitimate aim. 144. For several reasons I consider that there is a reasonable relationship of proportionality between the aim pursued and measures put in place to realise it. 145. First, a DCS is appropriate for offenders who ordinarily do not present a risk of serious harm. Accordingly, the practice as to revocation and recall of DCS prisoners is appropriate for exactly that category of prisoners. The appellant contends that the Department of Justice "can and should require a risk of serious harm" before revoking the licence of a DCS prisoner and recalling them to prison. However, if that practice was adopted then DCS prisoners, who ordinarily do not present a risk of serious harm, would not be recalled to prison even though, as here, there was a constellation of factors such as those listed at (a) to (f) in para 18 above. The objective justification for the difference in treatment in relation to revocation of their licence and their recall to prison as between DCS prisoners and ICS and ECS prisoners is the particular characteristic of the offenders. The characteristic of a DCS prisoner is that ordinarily they do not present a risk of serious harm, whereas the characteristic of an ICS or ECS prisoner is that they must pose a significant risk of serious harm.
146. Second, the overall arrangements in respect of DCS, ICS and ECS can be said to correspond to the scale of seriousness of each sentence: see para 107 of Stott v UK. A DCS prisoner has the disadvantage of a less stringent practice in relation to recall but the higher risk ICS and ECS offenders are subject to other more stringent conditions which do not apply to offenders subject to a DCS. A DCS sentence is for a fixed term. A DCS prisoner will be automatically released on licence at the end of the custodial period and can be released on licence 135 days prior to the end of that period. A DCS prisoner's licence will come to an end on the expiry of the DCS. In contrast an ICS and a life sentence are indeterminate. An ICS prisoner can only be released on licence on the direction of the Parole Commissioners. If an ICS prisoner is released on licence, then their licence will continue for the rest of their life, unless the Parole Commissioners give a direction to the Department of Justice that the licence should end. This means that absent a direction from the Parole Commissioners they are subject to an interference with their private lives and are potentially subject to recall to prison indefinitely. The release on licence of an ECS prisoner between the half-way point and the expiry of the appropriate custodial term is not automatic but rather depends on an assessment of risk by the Parole Commissioners. In contrast to a DCS prisoner who is automatically released on licence at the expiry of the custodial period, an ECS prisoner may be incarcerated for the entirety of the appropriate custodial period. Furthermore, an ECS prisoner will be subject to licence conditions for an extended period with consequential interference with their private life and the potential for recall to prison. 147. Third, there is a margin of appreciation for the relevant authorities, namely the Parole Commissioners who are independent of the Department of Justice, and the ORU whose practice reflects that of the Parole Commissioners. I consider that the practice contained in the Parole Commissioner's Guidance with respect to the revocation of a prisoner's licence and their recall to prison is well within the discretion afforded to those authorities to strike a balance between the interests of public protection and the interests of the individual prisoner. 148. I would dismiss this ground of appeal’.
Lord Stephens
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.