R (Youngsam) v The Parole Board

The case concerned a prisoner serving a determinate sentence who had been released on licence but then recalled to prison. He complained that there had been a delay in convening a Parole Board hearing concerning his detention, and that this breached his rights under article 5(4) of the European Convention on Human Rights (ECHR).

The principal issue on appeal was whether article 5(4) of the ECHR applies at all to recalled determinate sentence prisoners. This in turn raised the question of what was the ratio decidendi of the Supreme Court’s decision in Whiston v Secretary of State for Justice [2015] AC 176. In a judgment backed by the majority in Whiston, Lord Neuberger had opined that article 5(4) did not apply at all to this class of prisoners (save perhaps in unusual circumstances). But in a partly dissenting judgment, Baroness Hale had stated that – since the case could and should be determined on a narrower basis – the majority’s remarks to that effect were obiter dicta.

The Court of Appeal unanimously held that the majority’s view in Whiston about the scope of article 5(4) formed part of the binding ratio in that case and therefore had to be followed by all lower courts. Nicola Davies LJ gave the lead judgment, explaining that Lord Neuberger had expressed this view after carefully analysing the previous case law, and had stated that he wished to “confront squarely” and “grasp the nettle” regarding the difficulties in those cases. Since this analysis clearly formed a core part of the reasons treated by the Supreme Court as necessary for its decision, it formed part of the ratio and should be followed. It was important to recognise that Baroness Hale’s remarks had themselves been obiter. Further, the Supreme Court had subsequently affirmed and applied the majority’s reasoning in Whiston in Brown v Parole Board for Scotland [2018] 1 AC 1. Haddon-Cave LJ agreed.

Leggatt LJ concurred, but took the opportunity to discuss and consider a range of judicial and academic statements about the doctrine of precedent, and what parts of a decision are to be treated as part of its ratio. His insightful analysis emphasised the importance of the reasoning given in the precedent case in identifying its ratio. But he concluded that, in cases where there was room for argument, finding the ratio involved a multi-factorial assessment that took account of the “wider legal context”. This process admitted of a degree of “flexibility”, making it “impossible” to provide a simple definition or test for what constitutes the ratio, of the kind some academics had proposed. However, he sought to give guidance on the kinds of factors that could be relevant in discerning between ratio and obiter in precedent cases. 

David Lowe acted for the Interested Party, the Secretary of State for Justice.