Hare, R (on the application of) v Secretary of State for the Home Department & Anor

MR JUSTICE ELIAS: I have before me an application for judicial review. It was directed, initially, to two decisions. One was a decision taken on 29th May 2003 by the Secretary of State to recall the applicant into custody. The second was a decision taken on 16th July 2003, a decision of the Parole Board confirming that the licence should be revoked. Miss Stern, who acts before me for both parties, conceded at the outset that the Parole Board decision should be quashed and has given an undertaking on behalf of the Parole Board that they will reconsider the matter, urgently, and by no later than Thursday of this week, that is in three days time.

It is not entirely clear whether, in the circumstances, the applicant would want the validity of the decision to recall still to be determined by the court. Plainly nothing very much turns upon it, given the imminent reconsideration. It is not even clear that any effect could be given to a ruling in his favour because, if the applicant were successful, it may still take some time to arrange a proper release. But, in the absence of being able to get any clear instructions, the court has heard the application which was, in any event, a brief one.

The background to the case can be summarised relatively briefly. The applicant was imprisoned on 29th July 2000 for unlawful sexual intercourse and witness intimidation. He was released on licence on 23rd May 2003. On 28th May 2003 he was arrested for breach of the peace. It appears that the allegation at least is that he was abusive and threatening to hostel staff. He was released without charge, however, at 6 o'clock the following morning. On that day, 29th May, the Probation Service recommended recall and a warrant was issued for his recall. He was not in fact picked up until the warrant was executed on 10th June 2003.

Meanwhile, on 4th June, it appears that the Parole Board did conduct what Miss Stern says was the extra statutory consideration of the decision by the Secretary of State. It seems that this involves the Parole Board giving a speedy consideration of the decision of the Secretary of State, not with representations from the applicant, but merely to take a view as to whether or not the Parole Board considers that the Secretary of State was justified in exercising his powers pursuant to section 39(2) of the Criminal Justice Act 1991 to revoke the licence. The full hearing by the Parole Board was conducted on 13th July, as I have indicated, and that is the decision which it is agreed I should now quash.

The only question, therefore, is whether the Secretary of State could properly exercise the power to revoke the licence on 29th May. He had before him, at that stage, a licence revocation/progress report. The main body of the report set out the circumstances of the incident which led to the revocation. It was signed by the probation officer. In that report the probation officer, acting on information given to her, stated that the applicant had been charged with threatening behaviour. She recommended that the licence should be revoked because the applicant could not be safely managed in the community. The senior probation officer confirmed that recommendation and the assistant chief probation officer added the comment that there was here a breach in the condition of the licence which was, amongst other matters, that the applicant should be of good behaviour.

Mr Semple submits that the Secretary of State here acted on a mistake. The report indicated that the applicant had been charged. He had never been charged. He says, moreover, that should have been clear if one looked at the custody record. There it indicates that the applicant had been arrested, but no mention is made of his having been charged. In addition, he says that the report from the probation officers had suggested the applicant was drunk, and yet the custody record did not support that.

Underlying this argument is the premise that there is an obligation on the Secretary of State to go behind the information that is given to him in the probation reports. It seems to me that that is an unrealistic requirement. The Secretary of State here is acting pursuant to a power to recall somebody where he considers it expedient in the public interest that that should be done. I do not see, in those circumstances, that he must, prior to the exercise of that power, satisfy himself that the information that he has been provided with by the Probation Service is correct.

Simply, on that limited basis, it seems to me, that this application is bound to fail. But I should add that in any event it is plain that a decision by the Secretary of State to exercise his section 39 power will only very exceptionally be the subject of a successful challenge by way of judicial review. As Richards J pointed out in the case of Biggs [2002] EWHC, 1012 Admin, a decision given on 20th May 2003: the court will be very reluctant to interfere with the exercise of the Secretary of State's discretion precisely because the decision of the Secretary of State is effectively subject to a review by the Parole Board, and the Parole Board is in a better position than the court to assess where the balance should lie between, on the one hand, the risk to the public, and, on the other, the interests of the prisoner.

I am satisfied that the Secretary of State was entitled to act on the information before him. On the basis of that information it could not conceivably be said that his decision was unreasonable; and I am satisfied that there is no ground in law for challenging his decision.

As I have indicated, the decision of the Parole Board is quashed, it being accepted that the Board did not act in accordance with the law when it made its decision on 16th July, but the decision of the Secretary of State, in my judgment, was a perfectly proper one and I refuse the application as regards that decision.

MS STERN: My Lord, could I just clarify one matter?

MR JUSTICE ELIAS: Yes.

MS STERN: Your Lordship said, and it is probably my error, that I said that the Parole Board could consider the matter on Thursday. In fact the likelihood is that it would be by Thursday, because it is more likely to be on Tuesday or Wednesday.

MR JUSTICE ELIAS: Right, thank you.

MS STERN: It is a very small matter.

MR JUSTICE ELIAS: Yes, good, by Thursday. Then it will be even quicker.

MR SEMPLE: Better for us. There remains the issue then of costs.

MR JUSTICE ELIAS: Yes.

MR SEMPLE: Mr Hare has the benefit of public funding by the Community Legal Services Funding. Clearly he has been partially successful and partially not.

MR JUSTICE ELIAS: Yes.

MR SEMPLE: He has been remanded since 10th June, including the decision by the Parole Board, which has been accepted as being properly quashed today, that took place on 16th July.

In relation to that matter, whilst of course it is right to say that no instructions have been received in relation to his attitude to that today, that offer came very late on in the proceedings. Should a rehearing have taken place in say mid or late July that may well have been a very different matter than today when, in any event, he would have been released by the end of this month. I am instructed to make an application for costs against the defendant, the Parole Board.

MR JUSTICE ELIAS: Yes, can you resist that?

MS STERN: My Lord, it is difficult to resist that. What I would say, however, is that here I would ask for an order for no order of costs because the Secretary of State has succeeded on the only matter which was before your Lordship today and the offer of the concession was made. It is difficult because of the timetable having been exceptionally truncated in this case, but this hearing could have been avoided if the claimant had taken instructions and accepted the quashing of the Parole Board decision. So the only matter upon which they did proceed --

MR JUSTICE ELIAS: When where they offered that?

MS STERN: I believe they were offered that on Friday. The decision of Forbes J granting permission, I believe, was around midday on Friday. My instructing solicitors did communicate that they were going to have the Parole Board decision quashed, or at least for reconsideration, and the timetable of that, on Friday. It was only because that was not accepted that we are all here today.

MR JUSTICE ELIAS: I am not sure that was not -- it was accepted, but it was not accepted as --

MS STERN: As sufficient, my Lord, yes.

MR JUSTICE ELIAS: But it is quite difficult, is it not, for defendants, in circumstances where somebody is in prison, to get instructions. It is quite hard for them then to say we are not pursuing the other point when liberty, even for a day or two, might be at stake.

MS STERN: My Lord, yes. I am simply saying that that is the position here now, my Lord.

MR JUSTICE ELIAS: I understand. No, I am afraid the offer came too late, it seems to me, and they ought to get their costs in the circumstances.

Good. Can I thank you both.

MR SEMPLE: My Lord, I think the costs need to be subject to detailed assessment in any event as they are from the Community Legal Service Funding.

MR JUSTICE ELIAS: Yes, detailed assessment -- it cannot be agreed? If not agreed. Thank you very much.