A Critical Analysis of R (Smith and West) v Parole Board - Essay Example

?Harris Kamran Law Analytical Paper 21 August A critical analysis of R (Smith and West) v Parole Board [2005] UKHL The criminal cases and proceedings often present with complexities that are ingrained in the structure and nature of the articles and clauses of the constitution and the common law. The discussion and analysis of such cases reveals much needed lessons that should be incorporated in the future cases to prevent the mistakes and misjudgments made during the cases under discussion. One such case is R (West and Smith) v Parole1. This paper purports to discuss and analyze this case in order to understand the effects of its implications on criminal and administrative law. Background: in 2005, the Parole Board recalled the released of two prisoners, West and Smith, on the grounds that they had not acted in accordance with their conditions, and had breached the grounds on which they had made parole, posing a risk to the safety of the society at large2. West was a short-term prisoner who had been recalled on the grounds that he had spent one night away from the designated location without notifying his supervisor, and had been allegedly drunk and involved in the breaking down of a door at a girl’s hostel­3. Smith, a long-term prisoner, had been recalled on the pretext that he had proven incapable of fighting his habit of drug abuse on two occasions of his parole even after he had been given a written warning after the first incident4, and since he had been sentenced to prison due to a sexual crime5, his inability to live in accordance with his parole conditions were deemed as a safety risk to the society6. Analysis: The case under discussion presents a complex scenario in that it depends upon variables from the statutes of the common law and the Conventions of the Human Rights Act 19987 both directly and indirectly, and it is, at times, difficult to determine which of the clauses of the said statutes are applicable to the case. For this reason, the discussion and analysis of the case is subsequently divided into two parts; the first part deals with the application and relevance of the statutes of the common law, and the second part would deal with the articles of Convention as they apply to the case. Common Law: this subsection of the analysis would determine whether the pertinent case enjoys the benefit and protection afforded by the common law. The right to an oral hearing is a fundamental right provided by the common law when the Parole Board recalls prisoners released on probation under license due to any reason as deemed appropriate by the parole supervisor and the Parole Board8. The nature of the oral hearing is essentially an interview session, which might be informal in nature as this is considered sufficient9, with the option of presenting witnesses and new evidence in light of new facts or established facts the implications of which might have been changed due to influence of new developments in the case upon probation release of the prisoner10. The prisoner upon recall and once in custody is appraised of the right to file an appeal in order to challenge the Parole Board’s decision of recall11. This appeal is usually and mostly in the form of a written application directed to the Parole Board12. However, the prisoner has to be explicitly informed of his right to request an oral hearing if he feels that his case would be better presented by direct communication with the Board, or if he feels the need to present new evidence or witnesses13. Similarly, it is mandatory upon the Board to arrange an oral hearing if the need for such an arrangement is felt in light of any change in the established facts, or the implications of those facts due to a change in the circumstances of the prisoner upon his release; the need to present witnesses; or if the Board, due to any reason, feels that a fairer ruling would be only possible if the appellant was to engage in oral hearing14. It is generally considered that in many cases the mere use of a written application does not do justice to the proceedings of the trial and ruling by the Board, as it does not provide a fair chance to the appellant for clarifying his position and for presenting his view of the case15. In Goldberg v Kelly 397 US 254, 269 (1970)16, the United States Supreme Court put forward the relevance of the oral hearing: ‘Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision...Therefore, a recipient must be allowed to state his position orally...’17. However, despite the value associated with oral hearing, only four out of one thousand nine hundred and forty five cases were granted the right of an oral hearing by the Parole Board during the course of the ‘period from 1 April 2003 to 31 October 2004’18. Similarly, at the time when the appellants of this case submitted their written application, their application was viewed along with twenty four other similar applications for an appeal against recall19. In such circumstances, it can not be safely predicted that due justice was granted to the context of each application, no matter how careful the Parole Board would have been20. Let us consider the reasons for such a policy by the Board, as this would be helpful to determine whether West and Smith were entitled to an oral hearing. It is understandable that the arrangement of oral hearings for all the appellants requesting such an arrangement is not practical and affordable for the Parole Board in that such arrangements usually have to be made at the prison or other holding facility where the prisoner is being held21, involve the presence of Board officers, the submission of evidence and witnesses, and other formalities and proceedings which can put a considerable strain on the Board22. Therefore, it is not suggested that the Board make such arrangements for all the appellants, nor is the Board required to do so by law23. But where such a hearing is helpful to provide a ‘fairer procedure’24 to the appellant, it becomes mandatory for the Board to arrange an oral hearing25. Secondly, the Board makes the decisions of granting oral hearings on the pretext of assuming whether the hearing would change the outcome and decision of the Board in recalling the prisoner26. This attitude is, with due respect, flawed. The Board should consider whether such a hearing is ‘likely’27 to change the decision, and if it is likely indeed, it becomes mandatory for the Board to arrange a hearing28. In the case of West v Parole29, the established facts had not been changed30. However, newer developments had occurred with regard to the behavior of the appellant, in that he was alleged for spending a night away from the designated location, and of drinking and breaking down a door at a hostel31. Although he presented his case in the written form, an oral hearing would have served him more fairly in that it would have given him a chance to present witnesses regarding the door breaking and drinking32, and would have presented a witness vouching for his behavior at the changed location, and giving reasons for such an action. In the case of Smith v Parole33, again the established facts had not been changes, and probably the decision of the Board would have remained the same despite an oral hearing34; however, the appellant would have got a chance to present his psychiatrist as a witness to his efforts to shun the drug abuse35, and maybe another witness from the hostels he was staying at to submit that indeed the hostel environment was such that it was impossible for the appellant to abstain from drug abuse36. The point to be noted here is that it is important to give a chance to the appellants to present their case and to clarify and justify their positions, despite the effect that such an arrangement is assumed to have on the decision of the Parole Board37. The point is not to predict the outcome and to thereby deny the right to an oral hearing, extended to short-term and long-term prisoners38 along with prisoners with life sentences, as it was originally meant to apply to39. Hence, the House of Lords adopted a judicial and fair approach when ruling in favor of the appellants40. Convention Articles: this subsection focuses on the application of the Conventions Articles as they may or may not apply to the pertinent case, especially Articles 5 and 6 of the Human Rights Act of 199841. Analysis would be made as to the relevance of the Convention with regard to criminal proceedings, the Parole Board decision of overriding the plea for oral hearing in light of the Articles, and the decision of the House of Lords with regard to those Conventions. It should be noted that some of the implications might be indirect as opposed to directly effecting the decision, as submitted earlier. To begin our discussion, let us first determine the role of the Court and the Parole Board with regard to the sentencing, release on parole, and the recalling of the release thereof of the prisoner by the Court and the Board. Through a series of Court cases and appeals42, it has been ascertained that any action the result of which curtails the right to freedom of the individual in living freely in the society with liberty is deemed a criminal case, and the subsequent proceedings of such a case as criminal proceedings43. Therefore, by nature, the original sentencing of the Court resulting in the imprisonment of the individual is a punitive action, in that it is meant as a punishment for the prisoner due to his performance of a criminal act44. The role of the Court, therefore, is to provide punishment to the individual by sentencing him to prison45. The Parole Board, on the other hand, does not rule a fresh and different sentencing from the original sentencing of the Court46; it merely analyses the conduct of the prisoner released with license on parole, so that it can be ascertained if the prisoner is presenting a liability to the safety and well-being of the society in general47, and if he is a source of nuisance in the society. The aim of releasing prisoners on parole is to mediate their regulated, controlled, and supervised integration into society, so that they can continue to live a productive48 and harmless life, and they cease to be a source of danger, in any form, to the society49. If the Board finds such offensive acts by the parole prisoners as are liable to put them in the category of harm to the society, the Board is authorized to repeal the release of the prisoners and recall their liberty50. Such an action, therefore, is not punitive in nature, but is preventative, in that it is aimed just to prevent risk to the society. Moreover, by acting in the said manner, the Board is simply enhancing and furthering the sentence and ruling of the Court, and is not passing a new ruling51. Since the decision of the Board is not punitive in nature, it is subject to the Human Rights Convention Articles, especially Articles 5_ in particular 5(4)52_ and Article 6, and to common law53. The implications of common law have been discussed in the previous subsection in detail. Let us now turn our attention to the Articles 5 and 654 in particular. Article 6 has two limbs55: the first part of the Article addresses the criminal law as regards to the rights of the criminals, and the second part of the Article addresses the civil rights56, and affords protection to the citizens with regard to their liberty and freedom. According to the first part of the Article 6, there was no breach of the rights of the prisoners since they were released on parole, and as already discussed, the nature of the Parole Board is not punitive, and hence, not criminal in effect57. Moreover, the prisoners, having been released, albeit conditionally, were no longer liable under criminal proceedings since they were now free citizens of the society as much as was specified by the 2004 Parole Rules58, and although the Board held the right to repeal their freedom on pretext to risk to society59, they were not criminals as long as they were out in the society, and so were not covered by the first part of the Article 6. Having established this, the obvious conclusion would be that if the prisoners were not covered by the criminal limb of the Article, they were naturally covered by the civil rights limb of the Article60, and by repealing their parole without giving them a due chance of oral hearing, the Parole Board had breached their civil rights. In fact, this was the stance taken by the appellants61. However, this is not obviously the case, and indeed their appeal was not upheld by the House of Lords on this pretext62. The matter of determination of which cases, proceedings, and rights fall under civil rights is an issue of much debate, and is not very distinctly set in record, especially as it pertains to the criminal law an criminal justice63. There have been cases in which the denial of the right to oral hearing has been deemed as a breach of the civil rights of the prisoners by the court64; however, there have been cases too where such actions by the Board have not been judged under civil rights by the Court, indeed, the pretext of civil rights has not even been considered65. This concludes that the matter of civil rights as it relates to the pertinent case is ambiguous, as there are cases which fall neither under criminal rights nor under civil rights66. As already established, the Parole Board does not pass a new ruling, therefore, the effect of the ruling is not to limit the liberty of free, albeit conditionally, citizens by sending them to prison; rather the Board furthers the original sentence of the Court which was passed regarding criminals and not liberal, free citizens67. Therefore, in effect, the Board does not breach the civil rights of the appellants. Whereas the Article 6 does not directly effect the decision of the Board, the Article 5, and specifically 5(4)68, does, both directly and indirectly. Through this Article, the appellants are afforded the right to a fair policy by the Board when dealing with criminal issues69, and with the repealing of their parole liberty. The Parole Board, being autonomous, independent, and impartial body70, is considered a judicial body similar to the Court; indeed, in this matter, where the implications apply to the Court, they can be automatically considered to apply to the Board71. Therefore, under Article 5(4), the Board is expected to act in a fair manner towards providing a ‘fairer procedure’72 in its dealings, which in the pertinent case, means that the Board was obliged to grant the right of an oral hearing to the appellants. Without this right, the Board can be considered to have acted unlawfully and curtailed the rights of the appellants by not providing them with a fair procedural hearing73. The ruling of the House of Lords in this regard, then, is fair and judicial in that it ruled in favor of the appellants74. Summary: this section summarizes the findings of the paper, and gives conclusions as to the effects of this case to administrative law. Through a discussion of the case R (West and Smith) v Parole75, it is evident that the ramifications of the decisions of the Board and the value of the grant of the right to oral hearing are far diverse than expected and assumed by the Board76. It is obvious that the Board needs to reevaluate its approach towards administrative law, as it directly effects the civil rights and the right to liberty of the conditionally released prisoners that the Board is dealing with77. Since the prisoners, after they had been unconditionally released, had been capable of suing the Board for such an act of unlawfulness78, it follows that the Board had essentially breached a fundamental right of the appellant by denying them the right to an oral hearing. The Board is only absolved of such an arrangement if the prisoners, after their recall from parole, explicitly waive their right to an oral hearing79. In the pertinent case, this was not the scenario, and although in the case of Smith, the decision of the Board might not have changed had it granted an oral hearing, such an arrangement was, nevertheless, mandatory on the Board80. This is an important lesson to be learned by the Board; it should not base its decisions on assumptions, as such assumptions, even when made with the best of intentions and most carefully, tend to shift in favor of the Board and tend to neglect the rights and appeals of the prisoners81. To discharge administrative laws and duties based on assumptions, therefore, is an unlawful and risky act which goes against the rulings of the common law directly and the Convention Articles indirectly. Footnotes 1 R (Smith and West) v Parole Board [2005] UKHL 1. 2 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 3 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 4 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 5 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 6 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 7 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 8 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 9 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 10 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 11 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 12 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 13 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 14 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 15 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 16 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 17 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 18 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 19 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 20 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 21 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 22 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 23 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 24 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 25 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 26 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 27 Simon Brown LJ, ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 28 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 29 West v Parole Board [2005] UKHL 1 30 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 31 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 32 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 33 Smith v Parole Board [2005] UKHL 1 34 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 35 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 36 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 37 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 38 ‘Under Part 2 of the 1991 Act’ ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 39 Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666; R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837; R (Sim) v Parole Board [2004] QB 1288, as cited in ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 40 ‘Notes on Key Cases’ (Oxford University Press, 2011). 41 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 42 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 43 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 44 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 45 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 46 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 47 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 48 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 49 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 50 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 51 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 52 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 53 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 54 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 55 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 56 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 57 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 58 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 59 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 60 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 61 ‘Notes on Key Cases’ (Oxford University Press, 2011). 62 ‘Notes on Key Cases’ (Oxford University Press, 2011). 63 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 64 Aerts v Belgium (1998) 29 EHRR 50 as cited in ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 65 Ganusauskas v Lithuania (App. 47922/99), 7 September 1999; Kerr v United Kingdom (App. 44071/98), 7 December 1999; Brown v United Kingdom (App. 968/04), 26 October 2004 as cited in ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 66 R (McCann and Others) v Crown Court at Manchester [2003] 1 AC 787, 818, para 59 as cited in ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 67 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 68 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 69 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 70 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 71 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 72 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 73 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 74 ‘Notes on Key Cases’ (Oxford University Press, 2011). 75 R (Smith and West) v Parole Board [2005] UKHL 1. 76 ‘Notes on Key Cases’ (Oxford University Press, 2011). 77 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 78 Fitzgerald QC, ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 79 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 80 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). 81 ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005). Bibliography ‘United Kingdom House of Lords Decisions’ (Bailii, 27 January 2005) accessed 21 August 2011 ‘Notes on Key Cases’ (Oxford University Press, 2011) accessed 21 August 2011 Read More