IPRT Prison Law Seminar: Parole Reform and the ECHR Dublin, 22 October 2012 James Mehigan, Tooks Chambers

Summary Brief history of the development of the Parole Board in the UK in light of ECHR judgments. Article 5: right to liberty and security of the person. Articles 6 & 8. Outline of some successful challenges to the Parole Board of England & Wales Outline of some issues that may arise in Ireland.

Article 5: Right to Liberty and Security of the Person ‘ One of the most frequently invoked Convention Articles’ (Leach, 2011) As it relates to parole: 1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with procedures prescribed by law: (a) the lawful detention of a person after conviction by a competent court; … 4 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. 5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Article 5(1)(a): detention following conviction Changes to Parole Board’s functioning have been dramatic. Largely brought about by challenges in Strasbourg. This has taken over 20 years. Board now holds oral hearings. If no oral hearing the prisoner has a right to make representations on this. Prisoner entitled to i) publicly funded legal representation in most indeterminate cases ii) disclosure Board’s decision to release is now final (transfer to open remains a recommendation) Full reasons are given

Article 5(1)(a): detention following conviction Perhaps the most useful case to consider in the Irish context is Weeks v UK (1988) 10 EHRR 293. Relates to a recall before Home Secretary issued a ministerial statement clarifying how he would exercise his discretion in releasing life sentence prisoners. (30 November 1983)

Article 5(4): right of access to court to challenge detention Right to challenge the ‘lawfulness’ of the detention Judicial supervision may be incorporated in the original decision ordering detention. (e.g. indeterminate sentences De Wilde, Ooms and Versyp v Belgium (1972) 1 EHRR 438) Habeas corpus procedure satisfies the requirements of Article 5(4) Brogan, Brannigan and McBride v UK (1988) Article 40 challenges?

Article 5(4): right of access to court to challenge detention Article 5(4) has also been found to have been breached in the following circumstances: glass partition in a remand centre hindered effective consultations between lawyer and prisoner; reasonable belief that their conversations were not confidential. Castravet v Moldova (2007) insufficient reasons given for authorizing detention (brief, stereotypical wording will not do). Svipsta v Latvia (2006) failure to hold periodic reviews of the lawfulness of detention of post- tariff life sentence prisoners. Thynne, Wilson and Gunnell (1990) 13 EHRR 666 body reviewing lawfulness did not have the power to order release. Benjamin and Wilson v UK (2002)

Article 5(5): right to enforceable compensation for unlawful detention In order for the Court to find a violation of Article 5(5) there must be a finding of a violation of one or more elements of Article 5. A requirement that the detainee must have suffered damage in order to claim compensation does not contravene Article 5(5) but ‘damage’ includes both pecuniary and non-pecuniary loss. UK has been found to be in breach of Article 5(5) in the past. Brogan et al v UK (1988) Caballero v UK (2000) Breaches of Article 5(5) are an exception to the general rule that damages cannot be obtained against a court; HRA 1998,s 9(3)-(5).

Article 6: right to a fair hearing Article 6 is not as relevant to parole reform in England & Wales as it may first appear. In deciding if a prisoner should be released the Parole Board is not determining a ‘criminal charge’ within the meaning of Article 6. R (on the application of Smith) v Parole Board [2005] UKHL 1 It is undecided whether Article 6 applies in so far as liberty is a ‘civil right’.

Article 8: right to private and family life Article 8 is most relevant to the parole process in England & Wales when it comes to imposing license conditions on prisoners after they are released. Courts have recognize that the imposition of license conditions is capable of engaging the offender’s Article 8 rights R (Craven) v SSHD and Parole Board [2001] EWHC 850 (Admin) License conditions must be necessary and proportionate for the purposes of ensuring public safety and/or prevention of crime. Victims and offenders’ rights need to be balanced and victims cannot insist on disproportionate or unreasonable license conditions.

Successful challenges to the Parole Board of England & Wales Challenges to the merits of decisions are rarely successful. Therefore challenges tend to be successful only if they can point to procedural failings such as where the: Board’s reasons are inadequate R (Botmeh and Alami) v Parole Board [2008] EWHC 1115 (Admin) Board misapplies any statutory directions it is required to follow R (Tinney) v Parole Board [2005] EWHC 863 (Admin) Board makes its decision on the assessment of risk on the basis of factually inaccurate material R (Morton) v Parole Board [2009] EWHC 188 (Admin) Board has breached the requirements of procedural fairness R (Headley) v Parole Board [2009] EWHC 663 (Admin)

Mechanics of Challenging the Parole Board in Ireland Invoking the ECHR in Ireland: Constitution ECHR Act v Human Rights Act Judicial Review Applications to ECHR

Potential issues that might arise in Ireland (1) Areas where the Irish Parole Board may be at risk of successful challenge under the ECHR: Setting ‘tariff’ – Same as a sentence, needs to be independent of executive Parole board or equivalent must have the power to order release Arbitrary detention if courses/rehabilitation facilities not provided Delay between reviews – (2-3 years for some prisoners)

Potential issues that might arise in Ireland (2) Further areas where the Irish Parole Board may be at risk of successful challenge under the ECHR: Decision not judicial in character & does not involve prisoner Legal aid for representation at hearings – ‘interview’ v oral hearing