Whiston v Secretary of State For Justice

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Whiston v Secretary of State for Justice [2014] UKSC 39

Judgment handed down: 2 July 2014

In Whiston v Secretary of State for Justice, the Supreme Court considered the issue of whether a person released from prison on a home detention curfew who

is subsequently recalled to prison under s. 255 of the Criminal Justice Act 2003, has rights pursuant to article 5(4) of the European Convention on Human

Rights. Specifically, the appeal was concerning the issue of how far it is open to a person who is still serving a sentence imposed by a court, to invoke

article 5(4).

Article 5(4) of the European Convention on Human Rights states:

    ‘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.’

Mr Whiston was sentenced to 18 months in prison for robbery on 5 October 2010. He was entitled to automatic release on licence after serving half of his

sentence on 5 July 2011 under s. 244(1) of the Criminal Justice Act 2003, whereby:

    ‘As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite custodial period, it is the duty of

    the Secretary of State to release him on licence under this section.’

On 21 February 2011, he was released on licence under a home detention curfew pursuant to s. 246 of the Criminal Justice Act 2003. On 7 April 2011, the

Secretary of State decided to revoke the licence under s. 255 of the Act which allows the Secretary of State to recall prisoners released early under s.

246 of the aforementioned Act, because his whereabouts could no longer be monitored in the community. The decision of the Secretary of State to recall the

Mr Whiston back to prison was not subject to any statutory judicial control or review.

Mr Whiston contended that, as a result of the licence being granted on 21 February 2011, he regained his liberty and therefore, the subsequent revocation

of this licence and his consequent recall to prison constituted a deprivation of his liberty, which infringed article 5(4) of the European Convention on

Human Rights mentioned above.

Lord Neuberger led the judgment, with whom Lord Kerr, Lord Carnwath and Lord Hughes unanimously agreed that the appeal was to be dismissed from the Supreme

Court. Lady Hale also provided a concurring judgment.

Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinant term of imprisonment by a competent court, there is (at least in the

absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article

5(4). This is because, for the duration of the sentence period, “the lawfulness of his detention” has been “decided… by a

court”, namely the court which sentenced him to the term of imprisonment.

The court decided that based on this approach, article 5(4) could not normally be invoked in a case where, in relation to those serving determinate terms,

domestic discretionary early release provisions are operated by the executive. The notion that article 5(4) is satisfied by the original sentence was

decided to be principled. The court concluded that the common law should be able to provide appropriate protection to the rights of people in the position

of Mr Whiston without the need for intervention from the Convention.

Lady Hale shared a similar view to that of the other law Lords, in that the revocation of a discretionary licence does not infringe article 5(4) of the

European Convention on Human Rights. Lady Hale however, held that the law draws a principled distinction between determinate prisoners who have reached the

point in their sentence at which they are entitled to be released on licence, and those who have not. The former are recalled from their licence, and their

representations to the Secretary of State are unsuccessful, they are entitled to have their case referred to the Parole Board. The latter, whose release on

licence are discretionary, are not. Lady Hale therefore distinguished that once a prisoner goes beyond the point of compulsory release on licence, then

article 5(4) would certainly apply. But in this instance, this was not the case.

Supreme Court Press Summary available at:

Full case transcript available at:

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