Court of Appeal judgment on Article 5(4) ECHR and fixed term prisoners

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R (Youngsam) v Parole Board [2019] EWCA Civ 229 The Court of Appeal has upheld the judgment of the High Court ([2017] 1 WLR 2848) that Article 5(4) of the ECHR has no application to the release and recall from prison of prisoners serving fixed term or determinate sentences during the currency of their term of imprisonment, including in the period when they are entitled to be released on license but are recalled for breach of license conditions. The judgment is important in clarifying the law in this area. It is anticipated that the Appellant will seek permission to appeal to the Supreme Court or to the European Court of Human Rights. The judgement is also particularly noteworthy for the discussion of the rules of judicial precedent, including in the concurring judgment of Leggatt LJ. Expressing his indebtedness to the “excellent oral and written submissions” of all counsel, Leggatt LJ observed:

  1. In looking for the ratio decidendi of a case, the starting-point is always the rulings and reasons given in the judgment(s) to justify the court’s decision, read in the light of the facts of the case and the issues that arose. Generally, this is also where the inquiry ends. But where there is scope for argument that a rule or ruling stated in the precedent case was framed too broadly, or that the decision is for some other reason better explained on a different basis which would enable it to be distinguished, the search for the ratio will also involve an evaluation of the strength and persuasiveness of the reasons expressed in the judgment(s) or otherwise advanced or available for the ruling.  Such an evaluation will require consideration of a wider legal context in order to assess whether and to what extent the reasoning and the result reached in the precedent case are consistent with other authorities and legal principles (including subsequent authorities and developments in the law). 
Tim Buley acted for the Respondent Parole Board.

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