Calder, R (on the application of) v Secretary of State for Justice

In this appeal, the claimant appeals against the judgment of HH Judge Gore QC, sitting as a Deputy Judge of the High Court in the Administrative Court in Manchester, dismissing his challenge by way of judicial review of the lawfulness of his recall to prison under s.254 of the Criminal Justice Act 2003 (CJA 2003) as amended. He had been released on licence after serving one half of the custodial term of an extended sentence for public protection passed on him on 12 February 2009.

He contended on the appeal that the judge should have quashed the decision to recall on what were essentially three bases: (1) that there was insufficient evidence of a breach of his licence conditions to justify a recall, (2) that the reasons given for his recall were inadequate and (3) that the judge was wrong in concluding that there was an alternative remedy in the Parole Board’s scrutiny of the initial decision of the Secretary of State to recall the claimant and in their decision on his release.

The claimant was born on 15 February 1982. He had an extensive criminal record comprising offences of dishonesty and of failure to comply with court orders and motoring offences. In 2008 he was sentenced to 27 months in a Young Offender Institution for conspiracy to rob a bookmaker’s shop.

The offence for which he was sentenced on 12 February 2009 occurred in November 2006. He attacked the victim with a knife, causing wounds to his left arm and forearm, two wounds to the lower back and bruising to the right eye. The appellant was arrested, but subsequently he failed to answer to his bail. It was therefore not until 12 February 2009 that he pleaded guilty and was sentenced for that offence. It appears that the claimant had been diagnosed with bipolar affective disorder; he had been prescribed medication but had failed to take it at the time of the offence. The sentence passed was an extended sentence for public protection of 8 years 8 months comprising a custodial term of 5 years 8 months and an extended term of 36 months.

In accordance with the provisions of s.247 of the CJA 2003 the Secretary of State was obliged to release the claimant on licence once he had served one half of his custodial term. The Secretary of State therefore released him on licence on 15 March 2011, on the expiry of half of the custodial term. The terms of the licence included condition 5(1). This condition required him to:

“be well behaved, not commit any offence and not to do anything which could undermine the purposes of your supervision which are to protect the public, prevent you from re-offending and help you resettle successfully into the community.”

The claimant attended his probation appointments, save for one where there was an explicable absence. He went to live with his partner and their children and obtained employment at a go karting company and then subsequently started his own re-pointing business. He was supervised at MAPPA1, the lowest level of supervision. Although the claimant’s response to supervision was described as good, that was qualified in the following terms:

“It should be noted that his previous Offender Manager, Debra Kaur, commented on delius contact on 2 July 2013 that a home visit conducted that day to his new address raised some concerns – as quoted: ‘This was a massive new detached house and there were 2 cars on the drive, one of which was a VW 4 x 4, which his partner, Sarah said was her dad’s. I asked Terry about how much he earns and he said that it was between £400 and £500 per month. Asked him about how much the rent was on the house – he stated it was only £700. This seems highly unlikely given the size of the house and the quality of the property which was very lavishly decorated. His partner, Sarah does not work but said she gets about £400 family tax credits per month. They have 2 children to support and it does not seem feasible that their lifestyle can be funded by Terry’s supposed wage.’ I understand from further delius contacts that Mr Calder was defensive when he was asked about his financial situation and affordability of this property.”

On 24 January 2014 Detective Chief Superintendent Jackson, head of the Greater Manchester Police Organised Crime Division, contacted Mr Kyle, an experienced probation officer who had been employed in Greater Manchester for 11 years and in the Probation Service for 27 years. Detective Chief Superintendent Jackson told Mr Kyle that, as a result of rivalry between two organised crime groups in Manchester, the mother and brother of the claimant had both been shot and injured earlier in that week. As a result of intelligence received, it was his view that the claimant and Jason Danson were going to access unlicensed firearms as part of planning and organising an attack on a rival group. He believed that both the claimant and Danson presented an immediate threat to the lives of rivals in other gangs and he believed that the threat was both immediate and credible. The Detective Chief Superintendent could not impart the detailed intelligence but stated he believed that recall was necessary.

Mr Kyle discussed the intelligence with Mr Daniel Diamond, the Probation Operations Manager responsible for the Gang Management Unit in Greater Manchester and who had close liaisons with the police. He confirmed to Mr Kyle the level of the threat was high in terms of organisation, structure, activity and capacity.

Mr Kyle believed that the claimant was planning to access unlicensed firearms and was taking part in organising an attack on the rival group. He therefore had breached his licence condition to be of good behaviour. It was his opinion that the information about the threat to life provided by the Chief Superintendent meant a recall to custody was necessary and defensible in order to protect the public.

A draft Recall and Review Report was sent by Mr Kyle to the Public Protection Casework Section of the National Offender Management Service which exercises the power of recall for the Secretary of State. It was referred to Mr Marlon Haytread. His initial reaction, as recorded, was that the draft report contained insufficient information about the threat. He spoke to Mr Kyle and told him that the report needed to be revised to include more information. Mr Kyle made further inquiries of the police and revised the report concluding:

“It would appear that is an immediate increased risk of violence which may be serious to others and therefore risk of serious harm has now been deemed Very High.”

It was on the basis of the revised report, which included the information I have set out at paragraph 6 above, that the claimant was recalled to prison.

After the claimant’s recall, the Secretary of State referred the recall to the Parole Board in accordance with his duty under s.255C of the CJA 2003 to which I refer in more detail at paragraph 34 below.

On 4 March 2014 a Parole Board panel decided to refer the matter for an oral hearing following written representations from the claimant’s solicitors. The proceedings before the Parole Board were protracted, involving a number of hearings. They were not concluded until 3 December 2014.

The Parole Board in its decision of 15 December 2014 directed the claimant’s release subject to standard licence conditions and additional licence conditions, including a period of residence at an approved premises and restrictions on those whom he might contact, restrictions on the use of mobile phones and other restrictions necessary to protect the public. There has been no challenge to the lawfulness of that decision.

On 14 January 2015 the appellant was released from custody. However, on 16 March 2015 the appellant was again recalled to prison. That recall has not been challenged by way of judicial review. A further reference to the Parole Board is pending.

Whilst the reference to the Parole Board in respect of his first recall was pending, proceedings for judicial review of the decision to recall were commenced in Manchester on 15 April 2014. In detailed grounds running to 33 pages it was contended that the recall of the claimant was to assist the police in managing a situation which did not directly involve the claimant; it was contended therefore it was unlawful.

Permission was granted by HH Judge Raynor QC on 14 May 2014. Evidence was then filed on behalf of the Secretary of State including statements from Mr Haytread and Mr Kyle. The proceedings came on for hearing before HH Judge Gore QC at the Manchester Civil Justice Centre in October 2014. As the judge noted in his judgment the hearing bundle before him extended to over 1,000 pages covering a wide range of events and issues, few of which he considered were in fact relevant.

The judge concluded in a reserved judgment delivered orally on 31 October 2014 (before the Parole Board had made its decision) that the evidence of the threat taken together with the evidence of a criminal lifestyle were sufficient to justify recall. He held that there had been anxious scrutiny by Mr Kyle and Mr Haytread and that they were entitled to decide on the evidence that recall was necessary. He also concluded that the reasons were not so inadequate as to make the decision unlawful.

The judge also held that that the decision by the Secretary of State on recall would be scrutinised and reviewed by the Parole Board in the reference which at the time of the judgment was still in the process of being heard. He would therefore, if he had decided that the recall was unlawful not have ordered the claimant’s release; that remedy was discretionary and there was a suitable alternative remedy being pursued in the proceedings before the Parole Board. He would simply have declared the recall unlawful and left it to the Parole Board to determine whether the claimant should be released.

The powers of the Secretary of State

The power to revoke a licence is set out in s.254 of the CJA 2003:

“(1)

The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2)

A person recalled to prison under subsection (1)—

(a)

may make representations in writing with respect to his recall, and

(b)

on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

(6)

On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large.”

Case law has developed two conditions which the Secretary of State must satisfy to establish the lawfulness of the decision to recall.

The requirement that there are reasonable grounds for concluding there was a breach of licence conditions

First the Secretary of State must establish that he could on reasonable grounds conclude that the appellant was in breach of his licence conditions: see paragraph 5 of the judgment of Sir Anthony Clarke MR in Gulliver v Parole Board [2007] EWCA Civ 1386, [2008] 1 WLR 1116 (to which it will be necessary to refer in more detail when considering the third issue).

The only breach of the licence conditions relied on is the condition to which we have referred at paragraph 5. The sole question therefore was whether, on the evidence, the Secretary of State was reasonably entitled to conclude that the appellant was in breach of the condition which required him to be well behaved and not to do anything which would undermine the purposes of supervision which were to protect the public, prevent the claimant from re-offending and help him to resettle successfully in the community. I have omitted the words “not to commit any offence”, as it is not alleged that the actions of the claimant had, by the time he was recalled, amounted to an offence.

It is not, in my judgment, necessary in any way to try and add a gloss to the words of the condition. The term “well behaved” and “not to do anything which would undermine the purposes of your supervision which are to protect the public, prevent you from re-offending and help you to resettle successfully into the community” are sufficient in themselves not to require further judicial exegesis: the exegesis suggested in R (McDonagh) v Secretary of State [2010] EWHC 369 (Admin) at paragraph 28 is not necessary.

It was contended on behalf of the claimant that the only matters to which the court was entitled to have regard in assessing whether there was sufficient evidence were the matters communicated by the police and not the evidence in relation to a supposed criminal lifestyle.

I do not agree. The essence of the information put before the Secretary of State by the Greater Manchester Police was that the claimant was a member of an organised crime gang which was involved in a dispute with another gang. The material relating to his lifestyle (set out at paragraph 6 above) was relied on by Mr Kyle and set out in the Recall and Review Report. It was plainly relevant supporting evidence of the claimant’s membership of a gang and Mr Kyle was right in taking it into account.

Taking the information supplied by the police, the claimant’s background and the material relating to his criminal lifestyle, I have no doubt that the Secretary of State had before him sufficient material on which he could reasonably conclude that he was in breach of his licence conditions, particularly the condition requiring him not to do anything which could undermine the purposes of his supervision which were to protect the public. There was no other error in the judge’s approach either in the law of in relation to the other material before the Secretary of State. The observations of the judge at paragraph 3 of his judgment were immaterial to the reasoning or to the decision which was amply justified for the reasons set out above.

The requirement that it was necessary to recall the claimant

The second condition that must be satisfied is that in all the circumstances recall was necessary. In R( Jorgenson) v Secretary of State for Justice [2011] EWHC 977, Silber J concluded at paragraph 16 that it was not every breach of a licence which would justify a decision to recall an offender:

“In my view, in every case where the Secretary of State could reasonably conclude there has been a breach, he or she must then proceed to consider as an important free-standing separate issue, which is what steps should be taken to deal with this breach. In other words, the mere fact that a prisoner released on licence is in breach of his her licence or is reasonably believed to be in breach does not mean that recall must automatically be ordered. Of course, in many cases there will be no difficulty in concluding that the Secretary of State was entitled to order recall such as where the licensee has committed identical offences to those for which he was originally sentenced.”

He then went on to say that almost invariably there would have to be consideration of two specific sub-issues, namely whether the offender had acted intentionally in breach of his or her licence conditions and whether the safety of the public would be at risk if the offender remained out on licence.

The Secretary of State does not dispute these requirements. In the present case it is not necessary to consider them at any length for it is plain, in the circumstances of this case, that once the Secretary of State had reasonably concluded that there was evidence that the applicant was in breach of the licence conditions on the basis l have set out, it is clear that recall to prison was necessary. Lives of members of the public were at risk and the breach had been intentional.

I therefore conclude that the Secretary of State was lawfully entitled to recall the claimant to prison and this ground of appeal fails.

It was contended on behalf of the claimant that the reasons set out were inadequate. It is in my view clear from what I have already set out that the information and conclusions set out in the Recall and Review Report were adequate. This ground of appeal therefore fails.

The contentions of the parties

As I have set out at paragraph 18, the judge concluded that the Parole Board would scrutinise the initial decision of the Secretary of State in its decision on the reference by the Secretary of State and there was therefore an alternative remedy. The judge would, if he had decided that the recall was unlawful, therefore have exercised his discretion by refusing to order release; he would simply have declared the recall unlawful.

It was contended on behalf of the claimant that, although the Parole Board had at the time of the decision in Guillver a power and duty under the Directions issued in 2005 by the Secretary of State to review the recall decision, those Directions had been amended and the Parole Board no longer had any such power under the Directions issued in 2009. It could only review the continued detention and not the initial decision. The judge was therefore wrong in the view he had expressed. The Secretary of State’s submission was that the position was as set out in Gulliver.

Although a decision on this issue is, in the light of my decision on the first two issues, not an issue that can, on that view, affect the outcome of the appeal, I will set out my conclusion on the issue which was the subject of oral argument and subsequent written submissions, in the light of the importance of the question as to whether a recalled prisoner has a right to seek judicial review of the lawfulness of his recall and therefore his continued detention.

The statutory provisions

The powers and duties of the Parole Board are set out in s.239 of the CJA 2003; subsection (2) provides that its duty is to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.

Under s.255C (4) of the CJA 2003 (the provision was inserted into the CJA 2003 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012) the Secretary of State is required to refer to the Parole Board the case of a recalled prisoner if the recalled prisoner makes representations within 28 days or does not do so within 28 days. Subsection (5) provides that:

“Where on a reference under subsection (4), the Board directs [the recalled prisoner’s] immediate release on licence under this Chapter, the Secretary of State must give effect to the direction”

On receipt of such a reference s.239 (3) and (4) require the Parole Board to consider any documents given to it by the Secretary of State and any oral or written information obtained by it and to deal with the case “on consideration of all such evidence as may be adduced before it”.

Those duties can be supplemented by the power of the Secretary of State to give Directions under s.239(6). Directions were given by the Secretary of State in April 2005 which required the Parole Board to review any decision taken by the Secretary of State to recall an offender to prison and to determine whether the recall was appropriate. In December 2009, those Directions were replaced by new Directions which referred to the Parole Board only “reviewing the offender’s continued detention”. The 2009 Directions have been revoked and there are no Directions currently in place.

As there are no Directions in place, the scope of the Parole Board’s powers and duties, including the question as to whether it can or must consider the lawfulness of the decision to recall, must be derived from the provisions of the 2003 Act. Although the legislative provisions under which Gulliver (to which we have referred at paragraph 21 above)was decided are in all material respects the same as the current legislative provisions, a significant point of difference between the parties is whether the judgments in Gulliver dealing with this issue were premised on the Directions made in 2005 which specifically required the Parole Board to review the recall decision.

In Gulliver the Parole Board had decided that, although the Secretary of State could not establish on the evidence on which the recall had been made that there were reasonable grounds for concluding the recalled prisoner had been in breach of the licence conditions, the recalled prisoner had on all the evidence available to the Parole Board been in breach of his licence and his recall would have been justified on that different basis. The Parole Board then determined, having regard to all the available evidence, that they should not recommend his release.

Sir Anthony Clarke MR giving the first judgment concluded that the recall was lawful. The Parole Board was not confined to considering the lawfulness of the recall, but had to make its own judgment on all the evidence in deciding whether to recommend release. The courts had reached a similar conclusion in relation to indeterminate prisoners, and as the statutory context was similar the same principles applied to determinate prisoners (see paragraph 21 of his judgment). On the evidence it was entitled to make the decision it did. It therefore was correct in deciding that the recall was lawful. Moreover the remit of the Parole Board was not confined to considering the lawfulness of the recall, but it was bound under s.254(1) to have regard to all the circumstances in determining whether he should be released on licence. Sir Igor Judge PQBD in his short judgment emphasised at paragraphs 43 and 44 the supervisory responsibility of the Parole Board over the Secretary of State’s original decision and the process that led to it, in addition to making the recommendation on release. He made clear the importance of the supervisory responsibility in these terms:

“The supervisory responsibility provides a valuable check on the original decision-making process. The recall order is examined by an independent body, the Parole Board. This provides a discouragement for the slovenly or the cavalier or the corrupt.”

In my view it is clear from the judgments that the court reached the view that the responsibility of the Parole Board included consideration of the original decision of the Secretary of State solely by reference to the statutory provisions. The only reference to the Directions is at paragraph 23, where Sir Anthony Clarke MR after referring to the Directions given by the Secretary of State which had been relied on by counsel for the Secretary of State said he doubted whether they were an aid to the construction of the statute.

It is therefore clear in my view that views expressed in the judgments in Gulliver that the powers and duties of the Parole Board extended to reviewing the original decision of the Secretary of State were based entirely on the statutory provisions which, as I have said, are in all material respects identical to the provisions that govern the position of the claimant.

Although the views expressed might be said not to be necessary to the decision in Gulliver, they were an important part of the reasoning. In any event, I see no basis for thinking them in any way incorrect. It was pointed out to us on behalf of the claimant that Kenneth Parker J in R (Saleh) v Parole Board [2010] EWHC 179 (Admin) had expressed the view that

“The key function of the Board is to asses risk rather than to focus on the circumstances of the recall. That was the position under the previous legislation (see Gulliver at paragraph 35 of the judgment of Sir Anthony Clarke MR and paragraphs 43 to 44 of the judgment of Sir Igor Judge PQBD).”

It is clear from the whole of the judgment of Kenneth Parker J that he was emphasising the focus of the task of the Parole Board and the relevance of the decision to recall to that task. The challenge before him was a challenge to a decision which refused to recommend release and to a refusal to hold an oral hearing for that purpose. He was not saying that the Parole Board had no power or duty to review the recall decision.

We were also referred to the Parole Board’s view set out in The Parole Journey 2012/13 at page 13 that:

“The Parole Board does not determine whether the recall to custody was justified but must consider whether the prisoner should remain in prison for the protection of the public.”

The Parole Board was not represented before us, but the view it has expressed is inconsistent with the law as set out by this court in Gulliver.

In my view therefore the Parole Board has both a power and a duty to consider the decision on recall. For the reasons given by Sir Igor Judge that duty is an important and necessary duty.

The effect of the power on the jurisdiction of the Administrative Court

In Gulliver the court expressed its view as to the availability of judicial review of the decision to recall. Sir Anthony Clarke MR said at paragraph 39:

“The second point is whether, and in what circumstances, a decision by the Secretary of State to recall a prisoner can be challenged by way of judicial review. It is not necessary for us to resolve this issue in this appeal, since this is not a challenge to the decision of the Secretary of State but a challenge to the decision of the Parole Board. As I see it, there may be exceptional cases in which it might be appropriate to apply for judicial review, but they will be few and far between.”

Sir Igor Judge PQBD said at paragraph 45:

“There may, of course, be exceptional cases where the revocation decision process is so subverted that the prisoner may seek a different or separate remedy, by way of judicial review or, indeed, habeas corpus. In such cases the court may be satisfied that the Parole Board may not be able to provide an adequate or sufficient remedy. If so, it will deal with the application accordingly.”

In the submissions to us it was accepted on behalf of the Secretary of State that a court’s important duty was to review cases concerning the liberty of the subject and that it was unlikely that the court would be overburdened if applications by recalled prisoners to review the lawfulness of the recall were permissible in proper circumstances. We were told that between April 2014 and March 2015 there had been 18,450 recalls, but in only 36 cases had letters before action challenging the lawfulness of the recall been received; 20 of those had applied for permission and in only 6 of those cases had permission been granted. We were told that the reason for the very low number of applications was that where representations were made to the Secretary of State in relation to a decision to recall the Secretary of State routinely exercised the power under s.254(2A)- (2B) to reconsider the decision.

Thus although, as I have stated, I consider that the views expressed in Gulliver as to the statutory responsibility of the Parole Board to examine the original decision were right and there is no reason to depart from them, a court should never simply refuse an application for judicial review of the decision to recall on the basis that the issue will be decided in due course by the Parole Board. A court will consider all the circumstances including the timescale within which the issue will be decided by the Parole Board and the strength of the submissions put forward to challenge the decision of the Secretary of State in the light of the threshold the Secretary of State has to meet to establish the lawfulness of the recall.

In my view the question of the alternative remedy is therefore a question generally for consideration at the permission stage. Once permission is granted, bearing in mind the duty of the court to protect the liberty of the subject and determine for itself issues of liberty, it is unlikely generally to be a factor of material weight at the hearing of the judicial review.

I would therefore dismiss the appeal.

I agree.

I also agree.