This matter concerned an appeal from the decision that ECHR, art 5(4) does not apply to determinate sentence prisoners who are recalled to prison following release on parole licence.
The question was whether given that recall is not subject to review by the Parole Board or any other judicial body, it breaches the appellant’s right under art 5(4) to take proceedings to challenge the lawfulness of detention.
The Court of Appeal considered the case law in depth. In so doing, the judgment of the Court contains important analysis about determining what is a ratio.
In particular, it considered the Supreme Court decision of Whiston v Secretary of State for Justice  AC 176. In that case, the Supreme Court had held that, in accordance with the jurisprudence of the ECtHR, once a person had been lawfully sentenced by a competent court to a determinate term of imprisonment, he could not, in the absence of unusual circumstances, challenge his loss of liberty during that term on the ground that it infringed art 5(4). The lawfulness of the prisoner’s detention had been determined by the original sentence.
In the instant case, the appellant contended that the remarks of Lord Neuberger in Whiston that art 5(4) did not apply to recalled determinate sentence prisoners were obiter, and that this conflicts with the binding ratio of R (West) v Parole Board  1 WLR 350 where the House of Lords held that art 5(4) was applicable to such recall. The Court of Appeal, however, rejected this contention. The Court referred to Lord Neuberger’s express statement in Whiston that “the decision in West was per incuriam” in relation to holding that art 5(4) was engaged. The Court concluded that due to the detailed analysis by Lord Neuberger of the case law and the clarity of his reasoning, it could not be doubted that the proposition that art 5(4) does not apply to fixed-term prisoners was a necessary and decisive step in explaining their conclusion that the appeal should be dismissed, and as such it represented the ratio decidendi of the case.
The Court of Appeal considered that no subsequent authority undermined the authority of Whiston as regards that facts of the instant case and upheld the finding of the judge in the lower court that this view is binding on inferior courts.
The Court finally considered the matter of delay in the appeal, finding that though the delay was regrettable, the twelve-week timetable set out in PSI 30/2014 is an instruction applying to NOMS HQ, prisons and providers of probation services but not binding on the Parole Board.
Therefore the Court of Appeal dismissed the appeal on all grounds.
Nick Armstrong was involved in this case.