Youngsam, R (on the application of) v The Parole Board & Anor, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Advocates

Nick Armstrong (instructed by Bhatt Murphy Solicitors) for the Appellant
Tim Buley (instructed by Government Legal Department) for the Respondent

Judges

LORD JUSTICE LEGGATT
LORD JUSTICE HADDON CAVE
LADY JUSTICE NICOLA DAVIES DBE

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Youngsam, R (on the application of) v. The Parole Board & Anor

Smart Summary

Factual and Procedural Background

The appeal arises from a decision by Turner J regarding the applicability of article 5(4) of the European Convention on Human Rights ("ECHR") to the recall of determinate sentence prisoners from parole licence. The appellant was sentenced to 18 years for attempted murder in 2002, released on licence in 2013, and recalled to custody multiple times for breaches of licence conditions. After a series of procedural steps involving Member Case Assessments and scheduling of parole hearings, the appellant challenged the delay in listing his Parole Board recall hearing and the applicability of article 5(4) to his recall. Turner J concluded that article 5(4) did not apply to such recalls and found no breach of the common law duty to avoid undue delay. Permission to appeal was granted by a single judge.

Legal Issues Presented

Whether article 5(4) of the ECHR applies to determinate sentence prisoners recalled to prison following release on parole licence.
Whether there was unlawful delay, at common law or pursuant to article 5(4), in listing the appellant's Parole Board recall hearing.

Arguments of the Parties

Appellant's Arguments

The appellant contended that the majority opinion in Whiston v Secretary of State for Justice that article 5(4) does not apply to recall of determinate sentence prisoners was obiter dicta and conflicted with the binding ratio in Smith v West, which held article 5(4) applied.
The appellant argued that the judge erred in treating the statement in Whiston as binding despite it being obiter.
The appellant also challenged the delay in scheduling the Parole Board hearing, alleging failure to properly apply the timetable set out in Prison Service Instruction PSI 30/2014 and failure to consider a material email dated 27 July 2015.
Relying on the decision of the Strasbourg Court in Etute v Luxembourg, the appellant sought to distinguish the domestic position and argue for the applicability of article 5(4) in his case.

Respondent's Arguments

The respondent maintained that the statement in Whiston was not obiter but the ratio decidendi and binding on lower courts.
The respondent contended that article 5(4) does not apply to determinate sentence prisoners recalled to custody during the sentence period because the lawfulness of detention is determined by the original sentencing court.
Regarding delay, the respondent argued that the Parole Board was not bound by PSI 30/2014, and the delay was not unreasonable in the circumstances.
The respondent relied on the authority of Whiston and its subsequent affirmation in Brown v Parole Board for Scotland to support the non-applicability of article 5(4) in the appellant’s circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Whiston v Secretary of State for Justice [2015] AC 176	Article 5(4) does not apply to recall of determinate sentence prisoners during the currency of their sentence; lawfulness of detention is decided by original sentencing court.	Held to represent the binding ratio decidendi; lower courts are bound by this principle.
Smith v West [2005] 1 WLR 350	Article 5(4) applies to recall from parole licence of determinate sentence prisoners.	Considered conflicting authority; court preferred the reasoning in Whiston over this.
R (Giles) v Parole Board [2004] 1 AC 1	Article 5(4) does not apply to determinate sentences where lawfulness is incorporated in the original sentence.	Reviewed and relied upon to support the non-applicability of article 5(4) to determinate sentence recalls.
R (West) v Parole Board [2005] 1 WLR 350	Article 5(4) applies to recall of prisoners released on licence; procedural fairness requires oral hearing.	Held to be per incuriam in relation to article 5(4) and thus not binding.
R (Black) v Secretary of State for Justice [2009] AC 949	Discussed applicability of article 5(4) and obiter dictum that article 5(4) applies on recall.	Obiter dicta in this case considered incorrect and not binding.
Brown v Parole Board for Scotland [2018] 1 AC 1	Affirmed Whiston holding that article 5(4) does not apply during custodial period of extended sentences.	Confirmed the binding nature of Whiston and its reasoning.
Etute v Luxembourg (App No 18233/16)	Article 5(4) applies where conditional release is revoked and new decision affects lawfulness of detention.	Distinguished from UK law; did not alter the court's conclusion that Whiston governs UK determinate sentence recalls.
R (Kadhim) v Brent LBC [2001] QB 955	Definition of ratio decidendi as any rule expressly or impliedly necessary for the judge’s conclusion.	Applied to analyze ratio in Whiston.
Broome v Cassell & Co Ltd [1972] AC 1027	Lower courts must loyally accept decisions of higher courts.	Reinforced the binding nature of Supreme Court decisions.
Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854	Distinction between ratio decidendi and obiter dicta; only ratio is binding.	Used to emphasize importance of correct identification of ratio.
Young v Bristol Aeroplane Co Ltd [1946] AC 163	Principles on when Court of Appeal is bound by its own previous decisions.	Used to illustrate binding nature of precedent and ratio.
Leathley v John Fowler & Co [1946] KB 579	Reinforced binding effect of ratio despite technical obiter dicta.	Supported the court’s approach to precedent.
Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465	Recognition of tort liability for negligent misrepresentation.	Illustrated acceptance of ratio over conflicting obiter dicta.
WB Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850	Judicial acceptance of ratio despite academic disagreement on obiter dicta.	Supported binding nature of ratio.
Italmare Shipping Co v Ocean Tanker Co Inc (The Rio Sun) [1982] 1 WLR 158	Guidelines for leave to appeal from arbitration awards.	Demonstrated judicial adherence to House of Lords' guidance.
NWL Ltd v Woods (The Nawala) (No 2) [1979] 1 WLR 1294	Interpretation and qualification of ratio in precedent cases.	Illustrated flexibility in applying ratio.
Muller v Linsley & Mortimer [1996] PNLR 74	Interpretation of precedent limiting scope of ratio.	Showed lower courts may narrow ratio but not depart from binding authority.

Court's Reasoning and Analysis

The court undertook a detailed examination of the relevant Strasbourg and domestic jurisprudence concerning article 5(4) of the ECHR and its applicability to determinate sentence prisoners recalled from parole licence. It analyzed the Supreme Court’s majority judgment in Whiston, which concluded that article 5(4) does not apply during the currency of a fixed-term sentence, as the lawfulness of detention is incorporated in the original sentencing decision. The court recognized that although some dissenting or obiter views existed, the majority’s reasoning was clear, well-founded, and had been subsequently affirmed in Brown v Parole Board for Scotland.

The court rejected the appellant’s argument that the Whiston majority’s broader statement was obiter dicta, holding instead that it represented the binding ratio decidendi. The court also considered and dismissed the appellant’s reliance on the decision in Etute v Luxembourg, distinguishing the factual and legal context from the UK system.

Regarding procedural delay, the court found that although the Parole Board could have been more proactive and the delay regrettable, the delay was not unreasonable in the circumstances and did not breach the common law duty or article 5(4), even if the latter were applicable.

The court further elaborated on the nature and identification of ratio decidendi, emphasizing that the ratio is any legal proposition treated by the deciding judge as necessary for the conclusion. It rejected the notion that obiter dicta from the Supreme Court could override binding precedent and underscored the importance of adherence to higher court decisions within the hierarchical judicial system.

Holding and Implications

The court DISMISSED THE APPEAL.

The holding confirms that article 5(4) of the ECHR does not apply to determinate sentence prisoners recalled to prison during the currency of their sentence, as the lawfulness of their detention has already been judicially determined at sentencing. The court reaffirmed the binding nature of the Supreme Court’s majority decision in Whiston and its subsequent affirmation in Brown v Parole Board for Scotland. The appellant’s challenge concerning delay in scheduling the Parole Board hearing was also rejected as not amounting to unlawful delay. No new precedent was established; rather, the court reinforced existing legal principles and clarified the binding effect of prior Supreme Court authority on lower courts.