Jason Kessie-AdjeiI v Secretary of State for Justice

On 30 March 2022 Mrs Justice Heather Williams dismissed the appellant’s challenge to the lawfulness of his detention from 15 January to 4 March 2021. The appellant had been recalled to prison after revocation of his licence. The recall was lawful as a matter of domestic law. The appellant’s case was that his detention was in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”). He also argued that HMPPS policy PSI 03/2015 did not conform with Article 5 of the Convention in respect of the discretionary power to disapply the effect of Section 49(2) of the Prison Act 1952.

The issues in the appeal are

The judge found that there was no incompatibility with Article 5(1) on any of the bases put forward by the appellant. He argues that she fell into error.

The appellant was born in May 1995. In May 2016 in the Crown Court sitting at Inner London he was sentenced to a period of 24 months’ imprisonment for an offence of robbery. The sentence was suspended for two years. On 9 February 2018 he appeared in the Crown Court sitting at Southwark. For an offence of possessing a bladed article in a public place he was sentenced to 12 months’ imprisonment. That offence had been committed during the operational period of the suspended sentence. The suspended sentence was activated in part. The appellant was ordered to serve 18 months of that sentence to run consecutively to the sentence imposed for possessing a bladed article. The total sentence was 30 months’ imprisonment.

On 3 April 2019 the appellant was released on licence. He was provided with the written terms of that licence. Amongst other things he was required to be of good behaviour and not to commit any other offence. He was told that failure to comply with any requirement would mean that the licence would be liable to be revoked. The appellant had a supervising probation officer allocated to him. This was a Mr Haddow. Mr Haddow had only been in post for a few weeks before assuming responsibility for supervising the appellant.

On 12 November 2019 the appellant was arrested for an offence of having a bladed article in a public place. He was charged with that offence. He appeared at the Medway Magistrates’ Court. His case was adjourned for a trial early in 2020. The appellant did not tell Mr Haddow about these events. Mr Haddow found out about the new charge on 17 December 2019 from a Probation Service computer database. He arranged to meet the appellant on 31 December 2019. At the meeting the appellant made it clear that he was aware of the possibility of recall to prison. Mr Haddow said that no decision had been made. That was because it required consideration by more senior colleagues in the Probation Service.

On 10 January 2020 Mr Haddow was told to initiate the recall process. He did so. The process was completed by a senior colleague. On the same day the Public Protection Casework Section of the Probation Service confirmed that the appellant’s licence had been revoked. Mr Haddow received a written notification which stated that the revocation order had been sent to the police with a request that the appellant be arrested.

On 9 March 2020 the appellant was sentenced in respect of the offence he had committed the previous November. He was sentenced to a period of imprisonment suspended for 2 years with an unpaid work requirement. Mr Haddow had a face to face meeting with the appellant shortly after the sentence was imposed. That was the first contact between them since the meeting on 31 December 2019. Thereafter, Mr Haddow had regular telephone contact with the appellant by way of supervision. The available computer records kept by Mr Haddow show that there were four telephone conversations between 17 April 2020 and 28 May 2020. The frequency then reduced to monthly contact, the last record of contact being at the end of September 2020. The computer records indicate that the supervision was in relation to the suspended sentence.

At no point did Mr Haddow inform the appellant that his licence had been revoked. His evidence was that, because the appellant had not told him of the arrest in November 2019, he was concerned that the appellant would abscond were he to do so. At some point in the weeks leading up to what would have been the date of the expiry of the appellant’s licence in July 2020, Mr Haddow made a comment to the appellant that it was good news that his licence was coming to an end. This apparently was in response to a remark made by the appellant about the expiry of his licence. Mr Haddow at that time was not thinking about the fact that the clock on the licence had stopped because it had been revoked yet the appellant was still at large. The judge found that Mr Haddow did not act in bad faith. There was no deliberate attempt by him to mislead the appellant.

On 15 January 2021 the appellant was arrested by the police. They did so in reliance on the revocation of licence dated 10 January 2020. That gave them the power to apprehend the appellant without a warrant. There is no evidence about why the police acted in January 2021. Nor is there any evidence as to why they did not arrest the appellant at some earlier stage.

Because the appellant had not surrendered when his licence was revoked, he was deemed to have been unlawfully at large since 10 January 2020. That was so even though he had not been informed of the revocation of his licence, there being no requirement under the relevant procedure for someone in the appellant’s position to be so informed. The usual effect of someone having been unlawfully at large was that any time so spent would be left out of account in calculating the outstanding sentence. In the appellant’s case that meant that he had 174 days remaining on his sentence with a release date of 7 July 2021. However, the appellant’s solicitors requested that the Secretary of State should exercise his discretionary power under PSI 3/2015 not to leave out of account the days when the appellant was unlawfully at large. The Secretary of State concluded that there were exceptional circumstances which justified 58 days of the time spent unlawfully at large counting towards the sentence. Those circumstances were the appellant not being informed of the revocation and recall so that he was in that sense unknowingly unlawfully at large. That gave a release date of 10 May 2021.

The appellant also made representations in relation to his recall pursuant to section 254(2) of the Criminal Justice Act 2003. They were considered by the Parole Board. On 4 March 2021 the Parole Board decided that the test for release was met i.e. it was no longer necessary for the protection of the public that the appellant should be detained. The appellant was duly released on 8 March 2021.

The power to recall a prisoner appears in section 254 of the 2003 Act. The relevant provisions for our purposes are:

There is a National Protocol concerning recall to prison. The Ministry of Justice and the National Police Chiefs’ Council are signatories thereto. One of the stated objectives of the Protocol is to ensure the early apprehension of prisoners whose licences have been revoked. The responsibilities of the Probation Service include maintaining a database of those unlawfully at large with quarterly updates being sent to the police. (The evidence in this case is that such updates were sent and that the appellant appeared on the updates each quarter until his arrest in January 2021.) The police via the Protocol undertook that, other than in cases of emergency recall (which did not apply to the appellant), offenders would be apprehended within 96 hours of the revocation order. The target identified in the Protocol was for that timescale to be met in 75% of cases.

The statutory provisions do not include any requirement that the offender must be notified of the revocation of the licence. There is an offence of remaining unlawfully at large after recall: section 255ZA of the 2003 Act. On indictment the offence is punishable with a term of imprisonment of up to 2 years. An element of the offence is that the offender has been notified of the recall whether orally or in writing. The consequence of failing to notify the offender will be that they cannot be prosecuted for the offence. His Majesty’s Prison and Probation Service (‘HMPPS’) policy requires the issue of a letter notifying any prisoner who has been unlawfully at large for more than 28 days of their recall to custody. In practice such a letter will only be issued where proceedings for an offence under section 255ZA are anticipated.

The appellant did not seek to argue (whether in the court below or on appeal) that the statutory and procedural provisions were incompatible with the Convention, in particular Article 5(1).

Article 5(1) of the Convention provides (insofar as is relevant):

In James v United Kingdom (2013) 56 E.H.R.R. 12 the Grand Chamber identified some key principles in relation to arbitrariness. They were summarised at [192] to [195]:

The example of “deception” in Strasbourg jurisprudence to which our attention was drawn was Čonka v Belgium (2002) 34 E.H.R.R. 54. The authorities in Belgium sent a written notice to a group of asylum seekers inviting them to attend a police station “to enable the file concerning their application for asylum to be completed”. In fact, the purpose of getting the group to the police station was to serve them with an order to leave Belgium and for their arrest in order to facilitate their removal. At [42] the court said:

In Del Rio Prada v Spain [2013] EHCR 307 the Grand Chamber considered the issue of foreseeability at [125]:

In relation to the term “after conviction” there must be a sufficient connection between the decision relied on and the deprivation of liberty. This was explained in James v United Kingdom at [189]:

In relation to the specific issue of revocation of licence and recall to custody, the Divisional Court (Fulford LJ and Garnham J) conducted a detailed review of the authorities, both domestic and in Strasbourg, in R(Khan) v Secretary of State for Justice [2020] EWHC 2084 (Admin). The principles to be drawn from the authorities were summarised at [121]:

The most recent domestic authority of relevance is Morgan v Ministry of Justice [2023] 2 WLR 905. The judgment of the Supreme Court was handed down on 23 April 2023. Self-evidently it was not available to Mrs Justice Heather Williams. The case concerned changes to early release provisions in Northern Ireland which mirrored those considered in Khan. The issues were not on all fours with Khan because there is a difference in the regimes for release on licence in England and Wales on the one hand and Northern Ireland on the other. The parties in Morgan did not argue that Khan was wrongly decided. Rather, the position in Northern Ireland meant that different considerations applied.

Morgan was principally concerned with whether the change to the early release provisions violated Article 7 of the Convention. The Supreme Court drew two propositions from the authorities concerning Article 7 as set out at [104]:

The Supreme Court distinguished the position vis-à-vis enforcement in relation to Article 5. Having cited Del Rio Prada the court said at [121/122]:

The judge found that as a matter of national law the appellant’s licence was lawfully revoked. Further, national law did not require him to be informed of the revocation. There were sound policy reasons for this. The appellant knew the requirements of his licence. He knew that he had breached those requirements by committing the offence in November 2019. For there to be a requirement that he should be notified of the revocation would provide him the opportunity to disappear.

The judge then considered the issue of causation i.e. whether there was sufficient connection between the sentence imposed in February 2018 and the appellant’s arrest and detention in January 2021. She concluded that there was for six reasons:

The judge concluded that, although circumstances might arise in which the passage of time severed the connection between the original sentence and the later deprivation of liberty, any such circumstances would be extreme. Whilst the facts of the appellant’s case were unusual, the link between the sentence imposed in 2018 and his detention in 2021 was clear and unbroken.

In relation to foreseeability, the judge found that this requirement was met. The appellant knew that he had committed a further offence. He was aware that this constituted a breach of his licence. He appreciated that he was at risk of recall to custody to serve the outstanding portion of his sentence. The fact that he was given a misleading impression in or before July 2020 by Mr Haddow was not relevant to the question of foreseeability.

Finally, in respect of the appellant’s arrest and detention, the judge held that no proportionality assessment was required prior to the appellant's detention. The detention was a consequence of the sentence imposed in 2018. It was not for the Secretary of State to examine the proportionality of that sentence.

The judge turned to the lawfulness of PSI 3/2105 whereby the Secretary of State has a discretion to allow a period spent unlawfully at large to count towards the outstanding sentence. The discretion is to be exercised in exceptional circumstances. It had been argued that this failed to meet the Convention requirements of accessibility and reasonable foreseeability. The judge rejected the argument. The policy did not supply the authority for the appellant’s detention. There was no applicable Article 5(1) requirement for the policy to meet.

Hugh Southey KC, who represented the appellant on the appeal, did not appear before Mrs Justice Heather Williams. He did not raise new arguments but the emphasis given to different aspects of the appellant’s case was not the same as in the court below.

In his written submissions Mr Southey argued the following. First, the judge erred when she distinguished instances of bad faith of the kind identified in the Strasbourg jurisprudence and the unintentional communication of inaccurate information regarding detention. The focus should have been on foreseeability as emphasised in Del Rio Prada. Whilst there may not have been bad faith in the strict sense, Mr Haddow had misled the appellant. That affected the foreseeability of the appellant’s eventual arrest and detention.

Second, the requirement of foreseeability was not met. The appellant’s recall was not foreseeable by him when it happened due to what he had been told by Mr Haddow. Had he sought advice at the time, the appellant would have been told (a) that he was entitled to believe what he was told by his probation officer, (b) that the legal framework implied that he could only be recalled if he presented a risk of serious harm, (c) that it is implicit that he would have been given notification of recall as a failure to surrender after such notice is a criminal offence and (d) there was no legal basis for failing to tell the appellant that he had been recalled.

Third, the detention in 2021 was inconsistent with objectives of the original sentencing decision. Those objectives were punishment and risk management. The objective of punishment had been met by the initial period of incarceration up to April 2019, that being what had been anticipated by the sentencing judge in February 2018. Risk management did not require detention since the appellant had been at liberty without any issue arising for a considerable period from April 2019.

Mr Southey went on to argue that Article 5(1) did apply to the policy PSI 3/2015. It was via the policy that the post recall detention purportedly was rendered proportionate. Thus, the policy determined whether the detention was in accordance with Article 5. Yet the terms of the policy meant that its application was not foreseeable. The use of the term “exceptional” gave no guidance as to how the discretion would be exercised. This offended the requirement of legal certainty.

In his oral submissions Mr Southey concentrated on the issue of foreseeability. He argued that the appellant’s detention was not foreseeable because the appellant believed that he had completed his sentence and that he was no longer at risk of being detained. There were three factors which, taken together, demonstrated that the detention was not foreseeable: delay; what Mr Haddow had said to the appellant; the failure to send a letter in accordance with HMPPS policy. Mr Southey relied on Čonka to support the proposition that Mr Haddow’s comment about the coming to the end of the licence amounted to deception. He submitted that Morgan had changed the landscape in terms of the domestic law. He relied on the phrase “measures relating to the execution of a sentence” at [121] of Morgan, arguing that this encompassed (for instance) interaction between a prisoner and a probation officer.

The history of the appellant’s recall is a sorry tale which reflects badly on the administration of licence revocation and recall. The appellant at no time made it difficult for the authorities to find him. When the licence was revoked he was on bail for the offence committed in November 2019. A condition of his bail was that he was electronically monitored. He remained at the same address throughout. After he was sentenced and was no longer on an electronic tag he was in regular contact with Mr Haddow. There is no explanation of why it took the police just over a year to arrest the appellant. The notice of revocation had been served on them. The appellant appeared on the quarterly updates of those unlawfully at large yet nothing was done. Mr Haddow knew that the appellant’s licence had been revoked. He also realised that the appellant had not been detained. Whatever his reason for not telling the appellant about the revocation, there is no explanation for his failure to chase up the issue of recall with his superiors and/or the police. In March 2020 the appellant was sentenced for the offence committed in November 2019. The sentencing court cannot have known that the appellant had been recalled to prison. Thus, it imposed its sentence in ignorance of a highly relevant circumstance. At some point close to the notional end of the appellant’s licence period Mr Haddow said to the appellant that it was good news that his licence was coming to an end. As the judge found, this led the appellant to believe that the sentence imposed in 2018 would come to an end in July 2020. The issue is whether this catalogue of administrative incompetence engaged Article 5 of the Convention.

When he was sentenced in February 2018, the appellant knew the sentence which had been imposed. The judge who sentenced him inevitably would have explained the effect of the sentence, namely that he would serve half of the sentence before being released on licence. Whether the judge told the appellant what the effect would be were he to breach the terms of his licence is of no consequence. At the point of his release, the appellant was provided with a copy of his licence which told him that a breach of a requirement of the licence rendered him liable to recall to custody. One requirement was that he was not to commit any offence. In those circumstances the basis upon which the appellant was detained in January 2021 was entirely foreseeable. His sentence had not been altered. He had breached a requirement of his licence. The Secretary of State was entitled to revoke the licence. His recall to prison followed the revocation. All of this occurred as authorised by law.

When the Supreme Court in Morgan said that “measures relating to the execution of sentence” may attract Article 5 protection, this was not a reference to an administrative process. The closing words of [122] in Morgan demonstrate that the word “measures” involves the operation of law - “the measure will be subject to the qualitive requirements of “law” under article 5 of the ECHR.” The factors relied on by Mr Southey in his oral submissions are factual matters particular to the position of the appellant. Subject to the question of bad faith or deception, they could not engage Article 5 since the detention was in accordance with law.

The judge’s finding in relation to a lack of bad faith is not challenged. Mr Southey’s argument was that there was deception by a public official, namely Mr Haddow, which led to a violation of Article 5. He accepted that he could not point to any authority which was on all fours with the facts in this case. Rather, he argued that there were parallels to be drawn between the appellant’s case and the facts in Čonka . I can see no useful comparison between the appellant’s case and the facts in Čonka. In the latter case the authorities had deliberately set a trap for those who in due course were detained. The execution of the plan led immediately to the detention of the prisoners. The deception was the cause of the detention. In the appellant’s case Mr Haddow simply made a statement which led the appellant to believe that his licence had come to an end. However ill-advised it may have been to make the statement, it was irrelevant to the appellant’s later detention.

The delay in acting on the notice of revocation remains unexplained. It had no apparent justification. But the passage of time between the sentence, the revocation of the licence and the appellant’s detention fell far short of what would be required to break the link between the sentence and his detention. The judge said that the circumstances which would lead to a break in the causal link inevitably would be extreme. In the context of a recall to prison on a lawfully imposed sentence, the judge was right. The appellant had breached the requirement not to commit a further offence. He was required to serve the balance of his sentence. That was wholly consistent with the objectives of the original sentence which had been imposed to punish the appellant. In argument it was observed that, by reference to the legislation, a revocation notice would be valid indefinitely. The question was raised as to how much time would have to pass before detaining a person subject to a revocation notice became arbitrary. That is not an issue capable of resolution on the facts of this case. The delay here did not break the causal link. In any event, any challenge to detention following a very long delay probably would be a conventional public law challenge based on irrationality or legitimate expectation.

The failure to send a letter to the appellant when he had been unlawfully at large for 28 days was in apparent breach of the Recall Policy issued by the Secretary of State. However, the practical operation of the policy meant that a letter would only be sent if a prosecution for an offence contrary to section 255ZA was anticipated. That is an understandable approach. Since there is no statutory requirement for a prisoner to be told that their licence had been revoked, the failure to send a letter to the appellant did not affect the foreseeability of his detention by reference to his breach of the licence requirement. It cannot be said that the appellant was misled when he did not receive a letter.

Although Mr Southey did not raise the point in the course of oral argument, his written submission was that the detention in 2021 was inconsistent with the objectives of the sentence imposed in 2018. This submission was based on a false premise. The sentence was imposed as punishment. Release on licence from a determinate sentence does not mark the end of the punitive element of the sentence. From the point of view of the judge who imposed the sentence, the sentence was one of 30 months’ custody. The judge knew that release on licence would follow but that was not part of the sentencing process. The sentence imposed was not divided into a punitive element and an element involving risk management. When the appellant committed a further offence during the period of the licence, he was liable to serve the remaining part of the sentence imposed as punishment.

PSI 3/2015 is not a policy concerned with the execution of sentence. Rather, it provides the mechanism for the exercise of the Secretary of State’s discretion as set out in section 49(2) of the Prisons Act 1952. A person in respect of whom the discretionary power might be exercised will have been recalled to prison having been unlawfully at large. That person’s potential liability will be to serve the outstanding part of the sentence. If the discretionary power is exercised, the person will serve a reduced period in custody. For that period they will not be deprived of their liberty. Article 5 has no application to PSI 3/2015. The appellant was not detained pursuant to the policy.

The appellant was the victim of administrative incompetence. He was recalled to prison approximately 12 months after he should have been recalled by reference to the revocation notice. His detention was not caused by this incompetence. That resulted from the sentence imposed in February 2018 and from his clear breach of the licence granted in relation to that sentence. His detention was foreseeable. It was not arbitrary. There was no violation of the appellant’s Article 5 rights.

The policy in relation to leaving out of account days when the appellant was unlawfully at large was not the basis of his detention. No Article 5 rights could arise in relation to the policy. In any event, the policy identified that exceptional or very exceptional circumstances had to be present for days to be left out of account. This was sufficient to allow a prisoner to understand the basis on which the Secretary of State would apply the policy. The starting point was that a person who had been unlawfully at large had not been serving the sentence. There had to be something exceptional to depart from that position. The notion of “exceptional circumstances” is widely used in a variety of contexts, both in legislation and in government policy. For example, it applies when a minimum term of custody in relation to offences of prohibited firearms or domestic burglary falls to be imposed. The minimum term of custody may be disapplied if there are “exceptional circumstances”. No further definition is given so as not to fetter the exercise of the discretion.

It follows that I would dismiss the appeal. It is appropriate, nonetheless, to repeat that there was an egregious level of administrative incompetence in the appellant’s case. Someone in his position ought to have been arrested and detained within a few days of the revocation of the licence. The appellant’s case would be a useful case study for the Public Protection Casework Section to review for the purpose of improving the practice in relation to recall.

I agree.

I also agree.