BROWN v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Peter Brown, is a United Kingdom national, who was born in 1962 and lives in Leeds. He was represented before the Court by Mr S. Purchas, a solicitor practising in Leeds. In December 1997, the applicant was sentenced to eight years' imprisonment for supplying heroin. On 12 April 2002, at the two-thirds point of his sentence, the applicant was released on licence, pursuant to section 33 of the Criminal Justice Act 1991. The licence expiry date was set at 29 April 2003, the three-quarter point of his sentence (section 37 of the Criminal Justice Act 1991). The licence conditions included that he live “where reasonably approved by [his] supervising officer and notify him or her in advance of any proposed change of address”. A separate condition required him to live at his mother's address and not to live elsewhere without the prior approval of his supervising officer. The applicant owned a house in Oulton, Leeds. The licence condition was designed to reduce contact with his erstwhile partner A., a drug addict who lived at that address, with his daughter C. and her other daughter. He was allowed to visit his daughter C. at that address. In early November 2002, A. left the Oulton house and did not return. The applicant moved in to look after the children, there being insufficient room at his mother's home. On 25 November 2002, at his next probation appointment, the applicant informed his probation officer that he had moved. The applicant states that no action was taken or direction given that he leave the address. The applicant states that allegations of domestic violence were made by A. to her own probation officer, although not to the police. On the basis of these allegations, a request was made by senior probation officers (not including the applicant's) that he be recalled to prison for breach of his licence conditions. On 19 December 2002, the applicant was recalled to prison for breach of the residence condition in his licence by the Home Secretary under section 39 of the Criminal Justice Act 1991. In the document setting out the reasons for recall, it was stated that he was recalled because he had moved without prior approval and the risk that he posed because of his antecedents and his behaviour in moving meant that it was not right for him to remain on licence. On 23 December 2002, the applicant's solicitors made representations to the Parole Board which had the power to order his release, in which he inter alia denied the allegations of domestic violence and alleged that the decision to recall was based on insufficient information, largely an unreliable account of A. and without any investigations being carried out. On 15 January 2003, the applicant was informed that his representations had been rejected. The decision stated that the applicant had clearly breached the conditions of his licence by not residing at his mother's address as instructed, nor had he notified his supervising officer in advance of his proposed change of address. The condition had been specifically inserted in his licence to reduce contact with his ex-partner. This failure to comply with the licence conditions suggested that the objects of probation supervision had been undermined. The applicant instituted proceedings for judicial review, challenging that decision as unlawful, disproportionate or unreasonable and as following an unfair or unlawful process; he argued that both the common law and Articles 5, 6 and 8 of the Convention had been breached and sought damages. On 11 April 2003, the High Court judge refused permission, finding that the Parole Board had not revoked his licence because of allegations by A. or suspicions as to drug-taking. He noted that the reasons given were clear, that the applicant had notified the probation service after the event and the condition had been inserted to prevent/reduce contact with A. He held that the Board was entitled to regard the breach of the condition in those circumstances as justifying recall. The applicant's renewed application was rejected by a different High Court judge on 11 June 2003. He noted a report prepared for the Parole Board prior to his release which stated: “Although there are no current drug concerns it would be unrealistic to suggest that [the applicant] will not be 'at risk' post release. An additional licence condition to initially reside at his parents ... and not to move in with his partner Ms A. until he has demonstrated that he has remained drug-free for a significant period and she has overcome her own drug problem seems appropriate. Although such a condition would not prevent him seeing Ms A. and providing support to his children, it would allow the Probation Service to monitor the situation closely.” The judge found nothing unfair in the procedure whereby the Parole Board rejected the applicant's representations and held that although the decision was harsh it was impossible to say that it was arguably irrational: the Parole Board had known all the facts and the fact that the girl friend was not at the address when he moved there did not entitle him to breach his licence. On 22 September 2003, the Court of Appeal refused permission to appeal. The judge stated: “The procedure was fair. The Appellant broke a condition of residence which was important and of which he was well aware. He was given the opportunity to make representations and the representations he made were considered. The decision did not depend on the truth of the allegations made by Ms. A. and the Parole Board was right not to attempt any investigation of her allegations. The reasons given for the decision were adequate and ... rational. Even if it could be argued that it was harsh, it was not disproportionate.” Concerning the applicant's arguments under the Convention, the judge referred to domestic case-law on the point (see below). On 30 September 2003, the Legal Services Commission refused to fund a renewed application to the Court of Appeal. On 13 November 2002, R. (West) v. the Parole Board ([2003] Prison Law Reports 70, the Court of Appeal rejected, by two votes to one, the argument that the recall of a prisoner on licence who has been serving a determinate sentence amounted to a determination of a criminal charge for the purposes of Article 6 of the Convention. On 31 July 2003, in R. (Smith) v. the Parole Board ([2003] EWCA 1269), the Court of Appeal held that neither Article 5 nor the civil provisions of Article 6 were engaged by recall of a prisoner on licence serving a determinate sentence.