Prisoner released on licence - Parole Board recommending revocation of licence - revocation proceedings on papers alone not infringing prisoner's convention rights to liberty or fair trial

R (Smith) v Parole Board: CA (Lords Justice Kennedy and Brooke and Mr Justice Holman): 31 July 2003

The claimant was released from prison on licence after serving two-thirds of his sentence.

He failed to comply with a condition of the licence and his licence was referred to the Parole Board.

The board, having considered in private written representation communicated by his solicitors, recommended that his licence be revoked and that he be recalled to prison to serve the remainder of his sentence.

He sought permission to apply for judicial review of the board's decision on the ground that its failure to give him an oral hearing infringed his rights under articles 5 and 6 of the European Convention on Human Rights and was contrary to common law.

The judge refused permission to rely on article 5.

The Court of Appeal allowed his appeal against that decision and proceeded to hear the substantive claim.

Anthony Scrivener QC and Sharon Watson (instructed by Rooney & Co, Birkenhead) for the claimant; David Pannick QC and Parishil Patel (instructed by the Treasury Solicitor) for the Parole Board.

Held, dismissing the claim, that since the right of a convicted prisoner to liberty had been taken away from him at the time when he had originally been sentenced to serve a determinate term, he had no liberty until after the expiry of that term and a recommendation by the Parole Board to revoke his licence and recall him to prison did not infringe his right to liberty; that, when conducting proceedings pursuant to section 39(1) of the Criminal Justice Act 1991, relating to the revocation of the prisoner's licence, the board was acting as a court for the purpose of article 5(4) of the convention; and that its failure to conduct an oral hearing did not contravene article 6(1) or the common law.