The right to release

The more I look into the law on parole and human rights, the clearer it becomes to me (until more than the current sentence from Hulls on this topic goes on the public record) that the concern of the parole boards about having the Charter applied to them is with these bits of Charter s. 21:

21(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

21(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.

Now, just reading these provisions on their own without reference to ECHR caselaw, these two provisions are about the start and continuation of deprivation of liberty. The requirements aren’t exactly mind-bending: deprivation of liberty must occur through lawful procedures and there must be a (court) procedure to test that the detention continues to be lawful.

These provisions make most sense when you consider the usual criminal process context of arrest: cops need a law to arrest someone and must swiftly bring a person before a court to test to lawfulness of that arrest. However, they can also apply in other contexts. Indeed, the ECHR equivalent to Charter s. 21(3) actually contains an exhaustive list of when someone can be deprived of liberty:

5.1 …No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Now, as Article 5.1.a makes clear, one such situation is after a person has been convicted. Although neither Article 5.1 or Charter s. 21 uses the term, this is the sentence phase, when someone may be given a sentence of imprisonment and will be detained pursuant to that.

I would have thought, then, that the sole effect of Charter s. 21 on people serving a sentence of imprisonment is to require that the original sentence be done ‘in accordance with procedures, established by law’ and that prisoners have a right to ask a court to rule on whether their detention, at any moment, is in accordance with that original sentence. This would be satisfied by Victorian sentencing law and the right to habeas corpus (in Victoria known, less gloriously, as Order 57 of the civil procedure rules) (as well as other Victorian provisions allowing someone to challenge their sentence.)

But that’s where ECHR law on Article 5.4 mixes things up. Article 5.4 is basically identical to Charter s. 21(7) (apart from the word ‘court’, which isn’t defined in the ECHR):

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.

Here’s some boilerplate Article 5 jurisprudence from a 2002 ECtHR judgment:

Article 5 § 4 provides a crucial guarantee against the arbitrariness of detention, providing for detained persons to obtain a review by a court of the lawfulness of their detention both at the time of the initial deprivation of liberty and, where new issues of lawfulness are capable of arising, periodically thereafter (see, inter alia, Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, § 123, and Varbanov v. Bulgaria, no. 31365/96, ECHR 2000-X, § 58)

The crucial bit is that the testing the lawfulness of the original detention order (e.g. the sentence) may not be enough if ‘new issues of lawfulness are capable of arising’. And, in a series of cases, mainly against the UK, the ECtHR has held that decisions about parole (aka ‘release on licence’) are just such a moment. Here’s an example from 2003:

The Court has found above that the tariff comprises the punishment element of the mandatory life sentence. The Secretary of State’s role in fixing the tariff is a sentencing exercise, not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment. After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence of murder. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5 § 4. It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5 § 1 of the Convention.

So, it’s possible for 21(7) to require more than just a court checking that the original sentence is valid. If continuing detention is subject to ‘elements [that] may change with the course of time’ then a court review must be available to test these ‘new issues of lawfulness’. The ECHR has ruled that this requires either a real court or a court-like body, meaning that politicians are no good and parole boards who are therefore to be given the main job must have ‘the necessary judicial procedures and safeguards’, which may include some of the resource burdens that Victoria’s parole boards are worried abot.

Now, here’s the key refinement on my previous post: the crucial issue in the ECtHR jurisprduence is the view that, at some point during an English sentence, the purpose of detention switches from punishment to protection. As near as I can tell, that seems to be an accurate assessment of English imprisonment law, which treats release on licence as a right that emerges once the ‘tarrif’ has expired, albeit a right that is mediated by the parole board. A telling provision showing the English approach is this one:

244 Duty to release prisoners

(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.

(3) In this section “the requisite custodial period” means– (a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more or any determinate sentence of detention under section 91 of the Sentencing Act, one-half of his sentence….

In short, there’s a right to (what Victorians would call) parole. But what about the other category of fixed-term prisoners in England?:

247(2) As soon as– (a) a prisoner to whom this section applies has served one-half of the appropriate custodial term, and (b) the Parole Board has directed his release under this section, it is the duty of the Secretary of State to release him on licence.(3) The Parole Board may not give a direction under subsection (2) unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

Now, here there’s no automatic right to parole absent a parole board direction. But is there a right to a parole board direction? On a literal reading, there isn’t. Indeed, there’s a threshold to be crossed in sub-section (3) before such a direction even becomes available and there appears to be nothing to require a parole board to give a direction. But, although, s-s(3) is expressed as a necessary condition for a direction from the Board, rather than a sufficient one, it seems to me that sub-s(3) would surey be the focus of any Parole Board determination, to the point that it’s hard to imagine that the Board would refuse to give a direction to someone even though the criterion is satisifed.  From scanning through lots of judgments looking at these words, that seems to be how they’re treated. So, again, the result is that there’s a right to parole that, this time, is dependant on whether or not a person is currently dangerous.

All this is a contrast to Victoria:

74(1) The Board may by instrument order that a prisoner serving a prison sentence in respect of which a non-parole period was fixed be released on parole at the time stated in the order (not being before the end of the non-parole period) and, unless the Board revokes the order before the time for release stated in the order, the prisoner must be released at that time.

There’s no right to be released absent a parole board determination and no test to be applied. Moreover, Victorian law lacks the concept of separate punitive and protective portions of a sentence that appears in England. To the contrary, the High Court ruled years ago, when it first dealt with a non-parole sentencing system:

The inconsistency that has been found between treating the non-parole period as fixing a minimum period of confinement and the circumstance that the prisoner may be released from confinement after the expiry of that period without serving the full sentence is not, we think, well-based. For the purpose of showing such an inconsistency, the non-parole period is treated as a minimum sentence and the full sentence is regarded as an indeterminate sentence. We think nothing is to be gained by regarding the power of the paroling authority to release from prison as converting the full sentence into an indeterminate sentence. To interfere with that sentence is not within the authority of the paroling authority. Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him. The sentence stands and during its term the prisoner is simply released upon conditional parole. Indeed, we think it is a misnomer to refer to a minimum sentence and a maximum sentence. In truth there is but one sentence, that imposed by the trial judge, which cannot be altered by the paroling authority.

So, in short, as I said in my previous post, Australian parole law is sufficiently different from English parole law that ECHR decisions on Article 5.4’s applicability to parole decisions cannot simply be assumed to apply to Charter s. 21(7) and Victorian parole.

Also, as mentioned last time, the confinement of ‘court’ in Charter s. 21(7) to actual courts, rather than suitably endowed parole boards, makes the ECtHR jurisprudence inapplicable to parole boards in any case. Here’s that jurisprudence:

While the “court” referred to in this provision does not necessarily have to be a court of law of the classic kind integrated within the judicial machinery of the country, it does denote bodies which exhibit the necessary judicial procedures and safeguards appropriate to the kind of deprivation of liberty in question, including most importantly independence of the executive and of the parties (see De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, pp. 41-42, §§ 76 and 86; X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, § 53, and Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, p. 30, § 61).

Nearly all of the ECtHR and UKHRA cases have been about satisfying this requirement. Indeed, as recently as April this year, the UK CoA issued a declaration of incompatibility about an older UK provision that provided that said that the Sercretary of State ‘may’ – not ‘must’ – release a prisoner on recommendation of the parole board. But in Victoria, giving parole boards the final say wouldn’t be sufficient; rather, offenders would have to be permitted to ask courts to make the decision about release. In that case, exemption parole boards from the the conduct mandate won’t make any difference. Instead, the danger to be avoided would be a declaration that s74 of the Corrections Act is incompatible with Charter s. 21(7). And, no, I’m not predicting that such a challenge would succeed or even that’s it’s likely to be made!

It’s difficult to look at this issue thoroughly, because none of the relevant arguments raised by the parole board are clearly on the record. If and when such arguments emerge, it’ll be possible to properly test them including any reliance they place on the ECtHR jurisprudence.

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