PENOLOGY AND CRIMINOLOGY

Convictions for wilfully obstructing free passage along a highway without lawful authority or excuse contrary to the Highways Act 1980 s.137(1) were quashed where the prosecution had failed to establish where the boundary to a highway lay so that they had not proved that protesters were obstructing the highway.

[2017] EWHC 1955 (QB)

Prisoners whose death sentences for murder had been commuted to long sentences of hard labour by way of presidential pardon had received lawful sentences. However, as some of those pardons had been granted in batches without any opportunity for individual representations, they required remission to the President for reconsideration.

[2017] UKPC 25

The secretary of state was not obliged to exercise his power under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.128 as a means of relaxing the Parole Board’s test for releasing prisoners serving existing sentences of imprisonment for public protection, following the abolition prospectively of such sentences from December 2012. Given the difficulties in finding a suitable alternative release test, the secretary of state was entitled to instead improve the operation of those sentences to enable more prisoners to meet the conditions for release.

[2017] EWHC 1948 (Admin)

The court set out the principles of procedural fairness standards that applied when the secretary of state considered applications from life prisoners for release on compassionate grounds under the Crime (Sentences) Act 1997 s.30.

[2017] EWHC 1967 (Admin)

In refusing a prisoner’s application to be repatriated to Albania to serve the remainder of his sentence for conspiracy to commit robbery and kidnapping, the Secretary of State for Justice had relied too heavily on the fact that when the sentence was converted into Albanian law, the prisoner could be released three years and nine months earlier than in the UK. The Albanian court had imposed the highest sentence available to it, since under the prisoner transfer scheme it was not entitled to aggravate the sentence.

[2017] EWHC 1895 (Admin)

The ECHR art.3 and art.5(1) rights of an offender serving a sentence of imprisonment for public protection had not been breached by the length of detention as compared to the gravity of his original offending. Nor was the anti-discrimination provision of art.14 engaged because those sentenced in respect of identical offences after a change in the law which took effect shortly after the offender’s sentencing would not still be in custody.

[2017] EWCA Civ 1053

The policy contained in Prison Service Instruction 52/2011 did not unlawfully discriminate on the ground of nationality by requiring that where a foreign prisoner had been notified of liability to deportation but no decision to deport had been made, the prisoner should be deemed unsuitable to be considered for release on home detention curfew unless there were exceptional circumstances. The difference in treatment between such a prisoner and a prisoner who was not liable to be deported was not based on nationality, but on liability to be deported.

[2017] EWCA Civ 989

A prisoner had not suffered procedural unfairness where the prison governor upgraded his security category and status based on information that the prisoner was potentially involved in trafficking illegal substances and products into the prison. Although the governor had not fully disclosed the reasons for his decision, such non-disclosure could be justified on the basis of protecting sources of information, intelligence methods and the integrity of an ongoing investigation, and was statutorily recognised by the Data Protection Act 1998 s.29.

[2017] NIQB 65

The revised statutory scheme for the disclosure of convictions, introduced under the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 following a finding that the original scheme violated ECHR art.8, remained deficient and in need of further amendment. The concept of the revised scheme did not necessarily offend art.8, but its operation in individual cases might. The provisions relating to disclosure of serious offences and multiple offences were not “in accordance with the law”.

[2017] EWCA Civ 321

The court considered whether assurances from the Bulgarian authorities about the conditions in which prisoners might be held in Bulgarian prisons following their extradition from the UK to Bulgaria pursuant to European arrest warrants were sufficient to show that there was not a real risk of a breach of ECHR art.3.

[2017] EWHC 827 (Admin)

Changes made by the Criminal Legal Aid (General) (Amendment) Regulations 2013 to remove legal aid for pre-tariff Parole Board reviews, categorisation reviews of Category A prisoners and decisions on placement in close supervisions centres would lead to systemic unfairness. The high threshold of showing systemic unfairness had not, however, been reached in respect of decisions about offending behaviour programmes and disciplinary proceedings.

[2017] EWCA Civ 244

The conclusion of the majority in R. (on the application of Whiston) v Secretary of State for Justice [2014] UKSC 39 that a prisoner lawfully sentenced to a determinate term of imprisonment by a competent court was unable to challenge their loss of liberty during that term on the ground that it infringed ECHR art.5(4) should be regarded as binding on all inferior courts, notwithstanding the fact that it was obiter.

[2017] EWHC 729 (Admin)

A panel of Parole Commissioners considering a prisoner’s suitability for release from prison had not erred in failing to hear oral evidence from a psychologist who had provided favourable written reports about the prisoner. Although the panel had the power within the Parole Commissioners’ Rules (Northern Ireland) 2009 to call such a witness, there was no compelling reason why it was necessary to do so.

[2017] NIQB 34

A two-year prohibited activity requirement preventing a vulnerable 19-year-old from visiting her partner in prison was having a negative effect on her emotional well-being and was disproportionate. It had been imposed following her plea of guilty to conveying a mobile phone into prison for her partner, but the possibility of her committing similar offences in future could be addressed by the prison authorities invoking the Prison Rules to prevent her from having physical contact with her partner during visits.

[2017] EWCA Crim 405

The imposition by the Probation Service of licence conditions restricting an offender’s contact with his children was lawful and proportionate, and objectively justified, given the facts and circumstances of the case. A local authority’s functions and powers under the Children Act 1989 in care proceedings concerning children could not be used to defeat the Probation Service’s functions and powers under the Criminal Justice Act 2003 and the Criminal Justice (Sentencing) (Licence Conditions) Order 2015.

[2017] EWCA Civ 155

The Secretary of State for Justice was granted an injunction preventing the Prison Officers’ Association from asking its members to withdraw from “voluntary tasks”. The request constituted an inducement to withhold services contrary to the Criminal Justice and Public Order Act 1994 s.127 and “industrial action” in s.127(1A) was not confined to services which prison officers might be contractually obliged to undertake.

[2017] EWHC 699 (QB)

It was not appropriate for the court to make a declaration regarding the lawfulness of curfew requirements imposed on a foreign criminal pending deportation, where the facts of the case had not been fully established and the period of restriction could not be accurately determined. A general declaration that the imposition of an unlawful curfew under the Immigration Act 1971 Sch.3 para.2(5) constituted a false imprisonment was unnecessary, as that had already been established in R. (on the application of Gedi) v Secretary of State for the Home Department [2015] EWHC 2786 (Admin).

[2017] EWHC 330 (Admin)

The claim of a prisoner detained in a hospital that the Lord Chancellor’s powers under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were to be interpreted so as to give effect to a right to free legal representation by a lawyer of his choice in tribunal proceedings under ECHR art.5(4), art.6 or art.8 was unarguable.

[2017] EWHC 410 (Admin)

Sentences of eight years’ and four and a half years’ imprisonment, imposed for blackmail and for threats to kill respectively, were not excessive where a prisoner with a bad record for violence had barricaded his cell door, taken his cellmate hostage and threatened to cut his throat.

[2017] EWCA Crim 472

Provisions in the Criminal Injuries Compensation Scheme excluding the making of compensation awards to applicants with unspent convictions which had resulted in custodial or community sentences did not constitute a disproportionate interference with their ECHR rights. An applicant’s inchoate entitlement to compensation based on their satisfaction of the scheme’s eligibility criteria did not amount to a “possession” for the purposes of Protocol 1 art.1.

[2017] EWHC 2 (Admin)

An offender was sentenced to nine years’ imprisonment for causing death by dangerous driving where he had consumed a large amount of alcohol, had driven dangerously for a prolonged period and had failed to stop at the scene. In cases of dangerous driving causing grievous bodily harm or death a deterrent sentence had to be imposed.

[2017] NICA 1

The detention of a young offender for an additional 11 days after the expiry of his sentence had not breached his rights under ECHR art.5(1). Although the award of additional days had been quashed after the days had been served, it had been imposed in accordance with a judicial procedure prescribed by law and had remained lawful until the date of its quashing.

[2016] EWCA Civ 1033

A sentence of 12 months’ imprisonment imposed on a demonstrator convicted of violent disorder following an early plea of guilty was suspended. The offender had exceptional personal mitigation, which should have been taken into account.

A parole board had acted irrationally in refusing to transfer to open conditions a prisoner serving an indeterminate sentence of imprisonment for public protection. It had made its decision on the basis of outdated psychological evidence and, by focusing on the issue of release rather than transfer, it had asked the wrong questions and failed to give adequate weight to the evidence in favour of transfer.

[2016] EWHC 2601 (Admin)

If the Secretary of State for Justice proposed to ask the authorities of another Member State to allow a foreign national to serve a custodial sentence in that state, a deportation order would have to be made first. The First-tier Tribunal had therefore erred in the instant case by proceeding on the basis that the transfer request should have been made before the deportation decision was taken.

[2016] UKUT 449 (IAC)

The Parole Board had applied the presumption in favour of release in its refusal to direct a prisoner’s re-release after his recall for breaching his licence conditions. It had been rational for the board to conclude that he posed a high risk of serious harm to his ex-partner as that assessment of risk had been based on a significant number of elements.

[2016] EWHC 2178 (Admin)

On a proper construction of the Crime (Sentences) Act 1997 s.28(5), the Secretary of State for Justice was not under any duty to release a life prisoner as soon as the Parole Board had directed their release. In a case where residence at approved premises was specified as a licence condition, she was only obliged to release once a place at the approved premises was available for the prisoner.

[2016] EWHC 2057 (Admin)

An offender’s progress in prison completing courses, jobs, charitable work and acting as a buddy did not amount to exceptional and unforeseen progress such as to justify reducing his minimum term.

[2016] EWHC 2008 (Admin)

An offender had reached the level of exceptional and unforeseen progress in prison required to reduce his minimum term following his murder conviction.

[2016] EWHC 2007 (Admin)

A local authority’s refusal to enter a care leaver on its housing register was unlawful, as it had based its decision on the leaver’s spent criminal convictions contrary to the Rehabilitation of Offenders Act 1974 s.4(1).

[2016] EWHC 1850 (Admin)

Transport for London’s policy of revoking a private hire driver’s licence following a caution for touting served the legitimate aim of increasing public safety by deterring touting and was in accordance with the ECHR. The Rehabilitation of Offenders Act 1974 Sch.2 para.1, requiring a caution to be regarded as spent at the time that it was given, was irrelevant to the lawfulness of that policy since the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 art.2 excepted private hire licences from the scope of the rehabilitation provisions.

[2016] EWHC 2597 (Admin)

A criminal behaviour order prohibiting an appellant from sourcing and selling vehicles was clearly justified and appropriate and its imposition, despite the absence of notice, was not unfair. However, the ten-year period of the order was reduced to seven years.

[2016] EWCA Crim 1236

A person attending a police station in order to answer police bail was in police detention. Upon being sentenced for an offence, such a person was entitled to a reduction in the length of their sentence of imprisonment by any period during which they were in such police detention in connection with the offence for which the sentence was passed.

[2016] NIQB 67

A sentence of life imprisonment imposed on a mentally disordered offender following his conviction for manslaughter on the grounds of diminished responsibility was quashed, and replaced by a hospital order and a restriction order. New psychiatric evidence revealed the course of a deteriorating mental condition which required continuing hospital treatment, and it was imperative that the offender would be subject to appropriate medical supervision on release.

[2016] EWCA Crim 670

When the prosecution intended to seek a sexual harm prevention order, a draft of the proposed order should be provided to the defendant and the court at least two clear days before the sentencing hearing so that it could be appropriately scrutinised. It was not necessary to include a term in the order concerning sports coaching which simply reflected the terms of the Safeguarding Vulnerable Groups Act 2006.

[2016] EWCA Crim 1020

Where a prisoner’s licence had been revoked and he had been recalled to prison, it would not be appropriate to hear an application for bail. Instead, the Parole Commissioners should be left to consider whether the prisoner should be re-released.

[2016] NIQB 54

The statutory schemes for self-disclosure of convictions under the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 and for disclosure certificates under the Police Act 1997 Pt V both infringed ECHR art.8 because they went further than was necessary to achieve their aims and because they produced arbitrary results.

[2016] NIQB 43

The power to set aside the grant of leave for judicial review should be exercised very sparingly. The alleged breach of a claimant’s ECHR rights by a public body was a public law issue and he was entitled to assert that right in a public law court.

[2016] NIQB 42

Whilst there had been a procedural error by a judge in conducting a review of a prisoner’s minimum term for murder by considering a victim personal statement by the victim’s widow, who did not want the statement to be disclosed to the prisoner, the statement was irrelevant to the main issue in the review, which was whether the prisoner had made exceptional progress. Therefore, there was no material unfairness to justify quashing the secretary of state’s decision to accept the judge’s recommendations and refusing to reduce the prisoner’s minimum term.

[2016] EWHC 984 (Admin)

A sex offender failed to show that the Child Sex Offenders Disclosure (CSOD) Scheme set out in non-statutory guidance issued by the Secretary of State for the Home Department was unfair and unlawful because it did not allow an individual to apply for exemption from the scheme and did not contain a presumption in favour of seeking representations in every case from the potential subject of disclosure.

When upholding a deportation order issued by the secretary of state on the basis that the deportation of a foreign criminal was conducive to the public good, the Upper Tribunal considered the meaning of “persistent offender” for the purposes of the Nationality, Immigration and Asylum Act 2002 s.117D(2)(c).

[2016] UKUT 187 (IAC)

A declaration was granted that a defendant had failed to comply with a subject access request under the Data Protection Act 1998 s.7 and an order made that the defendant comply with that request. The defendant failed to establish that either a crime or a privilege exemption applied, and there was no good reason not to exercise the court’s discretion in favour of the claimants who had made a valid request.

[2016] EWHC 643 (QB)

The Department of Justice had been entitled to recall a prisoner who had breached the conditions of his licence and demonstrated a complete lack of meaningful engagement with the probation service. There was no error of law or fact in its decision.

[2016] NIQB 30

The Probation Service was not liable for physical and emotional abuse suffered by a woman who had begun a relationship with a prisoner on licence without knowing that he had murdered his partner. It had no duty of care to investigate more than it had when it had learned that the relationship might be happening, and no duty to disclose the prisoner’s offending to her.

The Crown was not bound by the Health Act 2006 Pt 1 Ch.1 because, as a general rule, the Crown was not bound by a statute unless bound expressly or by necessary implication. For that reason, state-run prisons were not obliged to implement the prohibition on smoking in certain places.

[2016] EWCA Civ 125

There had been no breach of ECHR art.5 where a judge had mistakenly sentenced an individual to imprisonment for public protection, which she could not lawfully do at the time. A court which had done its best to apply the law in good faith would not generally be acting arbitrarily for the purposes of art.5 simply because it had made a mistake as to the existence of a particular power. A person detained by order of a court in a system which included an appellate jurisdiction for the correction of errors would not generally be able to complain that his detention had been arbitrary.

[2016] EWHC 345 (Admin)

Thirteen climate change demonstrators, who had caused the closure of a main runway at Heathrow Airport, were found guilty of aggravated trespass and an Aviation Security Act offence. They were sentenced to suspended terms of six weeks imprisonment.

Northern Ireland’s Prison Service’s policy of denying enhanced status under the Progressive Regimes and Earned Privileges Scheme to prisoners who had unsuccessfully appealed their convictions and applied to the Criminal Cases Review Commission seeking reference of their cases to the Court of Appeal was not irrational, unreasonable or unfair.

[2016] NIQB 18

A previously-dismissed appeal against the extradition of a mother of two infant children was reopened and granted, as information on which the court had relied was found to be false; the requesting state had no guaranteed place for her in a prison mother and baby unit, and so extradition would not be a lawful and proportionate interference with her ECHR art.8 rights.

The guidance issued by the Parole Board in December 2013 as to the test to be applied by its panels when considering whether to direct the re-release of determinate sentence prisoners who had been recalled to custody after re-offending was correct and lawful. The board had to apply the same “public protection test” as the secretary of state, and was not permitted to balance the risk of offending against the benefits of release.

[2016] EWCA Civ 51