Cole Taylor & Anor v Secretary of State for Justice

This case raises an important point of statutory interpretation affecting prisoners released on licence, mainly those serving Extended Determinate Sentences (‘EDS’). According to recent statistics from the Defendant Ministry of Justice Offender management statistics quarterly: January to March 2025 - GOV.UK, there are currently over 9,000 EDS prisoners: about 10% of the total prison population.

As I shall explain, EDS prisoners are in a different category to standard determinate sentence (‘SDS’) prisoners. SDS prisoners are automatically released at the halfway point of their sentence, on a licence rendering them liable for recall until the end of that sentence. Adult EDS prisoners (sentenced before December 2020 under s.226A Criminal Justice Act 2003 (‘CJA’) and since then under s.279 Sentencing Code 2020 (‘SC’)) are only released automatically by the Defendant at the end of their ‘custodial term’ on an ‘extended licence’, although EDS prisoners can be released earlier - from 2/3 of their custodial term – if the Parole Board consider their detention is no longer necessary to protect the public.

This case concerns what licence conditions can be imposed by the Defendant on EDS (and related) prisoners on their release when the Parole Board are not involved. The key provisions are ss.250(4)-(5C) CJA, which since 28^th June 2022 have stated:

“(4)

Any licence…in respect of a prisoner serving a sentence of imprisonment ...(including…. imposed under section 226A, 227 or 236A, or under section 278, 279 or 282A…Sentencing Code)…. (a) must include the standard conditions… and (b) may include...(ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of this paragraph as [they] may for the time being specify in the licence.

(5A) The Secretary of State must not (a) include a condition referred to in subsection (4)(b)(ii) in a licence within subsection (5B), either on release or subsequently, or (b) vary or cancel any such condition included in such a licence, unless the Board directs the Secretary of State to do so (and must, if the Board so directs, include, vary or cancel such a condition).

(5B) A licence is within this subsection if it is granted to a relevant prisoner (a) on their initial release in a case where that release is at the direction of the Board, or (b) on their release after recall to prison in a case where release is at the direction of the Board (ss.255B(5), 255C(5) and 256A(5)).

(5C) In subsection (5B), ‘relevant prisoner’ means a prisoner to whom section 244ZC, 244A, 246A, 247 or 247A applies (or applied) for the purposes of their initial release.” (my underline)

The Claimants in these cases, Mr Taylor and Mr Nwagwu, are EDS prisoners, each sentenced for sexual offences in 2017 to custodial terms with extension periods. They were released on their extended licences by the Defendant without the involvement of the Parole Board: not at the two-thirds mark, but at the end of their custodial terms in 2023. Their licences included ‘standard conditions’ under s.250(4)(a) and ‘additional conditions’ (as I call them) under s.250(4)(b)(ii) CJA. Each was soon recalled within a short period for alleged breaches of both types of conditions.

The Claimants are currently held in HMP Littlehey in Cambridgeshire and have both brought private law (not Judicial Review) claims contending their recalls were unlawful as they are ‘relevant prisoners’ under s.246A and s.250(5C) CJA and that the Defendant was therefore prohibited from imposing ‘additional conditions’ under s.250(4)(b)(ii) because it did not consult the Parole Board under s.250(5A). The Claimants bring other causes of action mainly depending on that contention. Mr Taylor issued his claim in November 2024, Mr Nwagwu his claim in February 2025.

The Claimants represent themselves with the assistance and commendably thorough legal research of a McKenzie Friend and fellow EDS prisoner, Mr Truter. He is himself conducting related litigation before me against the Defendant and the Parole Board. It ultimately stems from his own recall in 2020 under similar standard and additional conditions imposed on his release in 2019, again without the involvement of the Parole Board. The Defendant admits his additional conditions were unlawful. The Claimants contend that so too were those conditions on their own licences in 2023.

The Defendant’s Defences of January and April 2025 initially admitted the additional licence conditions were unlawful in the Claimants’ cases just as they had been in Mr Truter’s case. However, it now applies to amend its Defences, withdrawing those admissions and indeed striking-out both claims. The Defendant now seeks to distinguish the Claimants’ position from that of Mr Truter because of the amendment to ss.250(5A)-(5C) CJA in June 2022, which the Defendant says removed the earlier limitation on its ability to impose additional conditions without the consent of the Parole Board if it is not involved which affected Mr Truter’s case. The Defendant contends if its interpretation of ss.250(5A)-(5C) CJA is right, the Claimants claims as a whole are bound to fail and should be struck out.

The Claimants argue their recall was unlawful in domestic law and violated Art.8 ECHR, but have not argued that if the Defendant’s interpretation is right, it discriminated under Art.14 ECHR between EDS prisoners released before and after that amendment in 2022: as analysed in R(Stott) v SSJ [2018] 3 WLR 1831 (SC). Instead, the Claimants, assisted by Mr Truter, resist strike-out on the basis that the June 2022 amendment to s.250 CJA did not expand the Defendant’s power to impose conditions without the Parole Board’s involvement, but actually restricted it further. So, the Claimants argue the Defendant’s initial admissions were correct.

I listed this issue for a hearing on 10^th October 2025, when I heard the Defendant’s strike-out application against the present Claimants argued by its Counsel Mr Rahman. The Claimants responded, assisted by Mr Truter as McKenzie Friend. I reserved my judgment and circulated a draft on 17^th October inviting further submissions on particular aspects of it at another hearing on 31^st October 2025. However, unfortunately, the Claimants only received my draft judgment at that hearing, so I only heard partial submissions at that stage, then listed a final hearing on 14^th November when I heard all remaining submissions, including submissions from the Claimants in response to my draft judgment which I have addressed in finalising this judgment. I handed it down in this final form on 17^th November after giving my decision to the parties at the hearing on 14th November.

I first set out the background of the EDS and each of the Claimant’s claims briefly, as the strike-out applications turn almost entirely on interpretation of ss.250(5A)-(5C) CJA. Next, I consider the interpretation of those provisions in detail, including in the context of other provisions of the CJA and predecessor provisions prior to the June 2022 amendment. Having reached my conclusion on that, I consider the Defendant’s applications to withdraw admissions and to strike-out the claims. In short, for the following reasons, I have struck out the Claimant’s Particulars of Claim (though allowed them to amend to pursue an unrelated claim as I will explain).

The traditional division in sentencing regimes over the years has been between two broad types of custodial sentence. Most common are determinate sentences, where the prisoner is given a fixed-term sentence, is released from prison on licence part-way through (typically halfway), which if breached leads to recall to prison for (up to) the rest of the sentence. By contrast, indeterminate sentences do not have a set duration, but a ‘minimum term’ in prison before release can even be considered (e.g. by the Parole Board) e.g. Life Imprisonment. The ‘Extended Sentence’, first introduced in 2000, is a determinate sentence for a ‘custodial term’, followed by an ‘extended licence’ whilst the offender remains liable to recall. In 2005, the CJA replaced it with the ‘Extended Sentence for Public Protection’ (‘EPP’) under ss.227-228 CJA, where release was typically at the halfway point of the custodial term.

The EPP was replaced with the EDS in 2012 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), inserting a new s.226A-s226B CJA for adults and under-18s. Whilst LASPO scrapped the controversial ‘Imprisonment for Public Protection’ (‘IPP’) indeterminate sentences, EDS was not a replacement for the IPP, but closer to the EPP: R v Docherty [2017] 1 WLR 181 (SC) at [13]-[15]. Since December 2020, EDS are now governed by ss.254-257 SC for under-18s, ss.266-268 SC for 18-21 year-olds and ss.279-281 SC for adults. The EDS is only available for those (1) convicted of a ‘specified’ sexual, violent or terrorism offence under Sch.15 CJA imprisonable for at least 10 years; (2) who pose a significant risk of serious harm to members of the public by commission of further specified offences; (3) are not required to receive Life Imprisonment under ss.224-225 CJA; and (4) either had already been convicted of an offence under Sch.15B; or the Court would pass a custodial sentence of at least four years. Like the EPP, the EDS aggregates two periods: (i) the ‘custodial term’ for a fixed period; and (ii) an ‘extension period’ ending at least 1 year after the end of the custodial term - up to a maximum of 5 years for a violent offence and 8 years for a sexual offence.

Under s.244 CJA, most standard determinate sentence (‘SDS’) prisoners are automatically eligible for release on licence at latest half-way through the sentence. But under s.246A CJA, EDS prisoners are only automatically entitled to release on extended licence at the end of their ‘custodial term’, not at its half-way point. But EDS prisoners can be released from two-thirds of their custodial term (the ‘requisite custodial period’ under s.246A(8) CJA) and their licence then further extends to the end of the original ‘extension period’. Those sentenced to an EDS before 13^th April 2015 to a non-Sch.15B offence with a custodial term of less than 10 years are entitled to be released by the Defendant at the two-thirds point. However, since 13^th April 2015, all those sentenced to an EDS can only be released before the end of their custodial term at the direction of the Parole Board and no earlier than 2/3 of it. So, the Parole Board will typically consider release of three types of EDS prisoner:

As noted above, s.250(4) CJA stated in 2023 and still states that:

“Any licence under this Chapter in respect of a prisoner serving a sentence of imprisonment ...(including [one]…. imposed under section 226A, 227 or 236A [CJA], or under section 278, 279 or 282A…[SC]…. (a) must include the standard conditions… and (b) may include...(ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of this paragraph as [it] may for the time being specify in the licence.

The ‘standard’ licence conditions under s.250(4)(a) are specified under Reg.3 Criminal Justice (Sentencing) (Licence Conditions) Order 2015 (‘LCO’) and include requirements not to commit any offence and to keep in contact with the Probation Supervising Officer, but also to:

“(a)

be of good behaviour and not behave in a way which undermines the purpose of the licence period.” and:

(e)

reside permanently at an address approved by the supervising officer and obtain the[ir] prior permission for any stay….at a different address….”

The ‘additional’ licence conditions prescribed under s.250(4)(b)(ii) are specified under Reg.7(1) LCO (which I shall refer to in this judgment as ‘additional conditions’) include the following under Reg.7(2) (my underline):

“A condition concerning (a) residence at a specified place; (b)  restriction of residency; (c)  making or maintaining contact with a person; (d)  participation in, or co-operation with, a programme or set of activities; (e)  possession, ownership, control or inspection of specified items or documents; (f)  disclosure of information; (g)  a curfew arrangement; (h)  freedom of movement; (i)  supervision in the community by the supervising officer, or other responsible officer, or organisation.. (j)  restriction of specified conduct or specified acts.”

Probation Guidance PSI 12/2015 (as amended in 2022) provides that Reg.7(2)(a) and (g) enabled additional conditions of residence at ‘Approved Premises’ with a curfew at set times each day. Reg.7(2)(e) ‘control of specified items’ includes:

“(a)

Not to own or possess more than one mobile phone or SIM card without the prior approval of your supervising officer and to provide [that] officer with details of that mobile phone or one you have regular use of, including the IMEI number and SIM card you possess.” (‘the mobile condition’)

(g)

Not to delete the usage history on any Internet-enabled device or computer used and to allow such items to be inspected as requested. Such inspection may include removal of the device for inspection and the installation of monitoring software.” (‘the usage history condition’)

That guidance states the former covers mobile phones whether owned or possessed by the offender, whilst the latter is only to be used for high and very high-risk offenders.

Whilst there is no Art.14 ECHR discrimination claim between the Claimants and those like Mr Truter released before June 2022, a hypothetical comparator is nevertheless useful to illustrate how the complex provisions work at various points. Therefore, I will compare the Claimants’ position to that of X, a hypothetical adult prisoner sentenced to an EDS in April 2016 with a custodial term of 6 years and extended licence of 6 years, who was not released early by the Parole Board, but at the end of his custodial term in April 2022, shortly before the amendment to s.250 CJA (though as the Claimants point out, s.250(4) was not amended then). Again, like the Claimants and Mr Truter, I shall assume the hypothetical X was released in April 2022 on standard licence conditions under s.250(4)(a) CJA and additional conditions under s.250(4)(b)(ii) CJA, then recalled for alleged breach of them after the amendment in June 2022. Therefore, the sentence date (but not length) and so the release date are the only material difference between X and the Claimants.

Mr Nwagwu was born in 1990 and on 15^th September 2017, he was sentenced at Snaresbrook Crown Court to an EDS under s.226A CJA. He admitted an offence of ‘Causing a child to be engaged in penetrative sexual activity without consent’ under s.4 Sexual Offences Act 2003 (‘SOA’), specified by Schs.15 and 15B CJA. It involved inciting a teenage child into sexual behaviour online. His custodial term was 6 years and extension period was 6 years: his sentence expires on 10^th May 2029. He was also subject to a Sexual Harm Prevention Order prohibiting him from using any Internet-enabled device without preserving its history and making it available to Probation on request. He was released without the involvement of the Parole Board at the end of his custodial term on 10^th May 2023. His licence conditions included:

The Defendant alleges whilst in Approved Premises in May-July 2023, Mr Nwagwu breached his ‘mobile’ and ‘usage history’ conditions by possessing a second mobile phone but deleting its history. He denies that, but unquestionably did abscond and in July 2023, his licence was revoked and he was recalled to prison for breach of those two additional and the ‘good behaviour’ and ‘no offence’ standard conditions. But as Mr Nwagwu had absconded, he did not return to custody until 15^th September 2023. He was referred to the Parole Board and in November 2023 in representations to the Board appeared to accept that his recall was appropriate. Whilst he disputed that before me, there is no doubt that in April 2024, when refusing his release, the Board specifically held that his recall was appropriate (which he did not then challenge by Judicial Review):

“[F]ollowing..Calder…the panel is tasked with considering the appropriateness of recall. Having reviewed the evidence the panel considers that there is nothing within the dossier that suggests that the recall was inappropriate and in consequence the panel is satisfied that Mr Nwagwu’s recall was appropriate, given the allegations of offence paralleling behaviour and poor compliance.”

18 months after Mr Nwagwu’s recall, on 24^th February 2025, he issued this claim alleging the Defendant’s imposition of and his recall on those ‘additional conditions’ were unlawful under s.250(5A) CJA. The Particulars alleged False Imprisonment and breach of Art.5 ECHR in the Approved Premises and since recall due to the allegedly unlawful ‘additional conditions’; as well as alleged breaches of the Data Protection Act 2018 (‘DPA’) due to those ‘additional conditions’.

The initial Defence, dated 22^nd April 2025, admitted the additional conditions were unlawful by virtue of s.250(5A) CJA. It stated at para.8:

“[I]t is admitted, by reference to statutory provisions at the time…there was no power to impose additional or bespoke licence conditions independent of any such conditions approved by the Parole Board.”

However, the Defence denied liability for all the claims on the basis that the (admittedly unlawful) additional licence conditions were in effect irrelevant since:

“[T]he additional…licence conditions can be seen as either reflecting the restrictions imposed by the Sexual Harm Prevention Order or examples of means by which the Claimant might demonstrate compliance with the standard conditions which would include being of good behaviour, but also residing permanently at an address approved by the Supervising Officer. It is denied the additional licence conditions would be regarded as a nullity....”

On 19^th July 2025, Mr Nwagwu applied to amend his claim to add a claim for Contempt arising out of the seizure of Mr Nwagwu’s paperwork from Mr Truter’s cell. As that also affected a third prisoner, I gave a separate judgment about that, but I will return to it right at the end of this judgment. On 10^th September, the Defendant applied to withdraw its admission that Mr Nwagwu’s additional conditions were unlawful, to amend its Defence and to strike-out the claim. The draft Amended Defence contends Mr Nwagwu’s claim is an abuse of process as it challenges the Defendant’s recall decision (which it contends is a public law challenge that should have been made by Judicial Review) and seeks strike-out under CPR 3.4 for that reason and because it alleges ‘no reasonable grounds for bringing the claim’.

Mr Taylor (as I will refer to him as he refers to himself in his Claim, despite other references in the Defence) has a slightly more complicated claim than Mr Nwagwu. Mr Taylor was born in 2000 and on 3^rd July 2017, aged 17, he was sentenced in Wolverhampton Crown Court to an EDS under s.226B (being then aged under 18). He admitted Kidnap with intent to commit a sexual offence in relation to children under s.62 SOA, again a specified offence under both Sch.15 and Sch.15B CJA. A Sexual Harm Prevention Order without limit of time was also made.

However, the parties disagree as to the length of Mr Taylor’s EDS:

In any event, Mr Taylor did in fact apply to the Parole Board for early release, but he then withdrew his application when facing the other allegation of ABH in prison in June 2020, for which he was convicted and sentenced to an additional two years’ imprisonment in 2021 as I have said. Whilst there was a further referral in 2022, Mr Taylor withdrew his request for release to complete his identified core risk reduction work. Nevertheless, the Parole Board in its paper review of 9^th September 2022 said then that Mr Taylor presented a very high risk of violent and sexual reoffending and of serious harm to children, prisoners and known adults.

On 27^th January 2023, at the end of his full custodial term, the Defendant released Mr Taylor on licence with these conditions:

Mr Taylor did not bring a claim for Judicial Review, but instead 18 months later, on 6^th November 2024, he issued his Claim Form and Particulars of Claim alleging the ‘additional licence conditions’ were unlawful:

On 16^th January 2025, as it later would with Mr Nwagwu, the Defendant’s initial Defence admitted the unlawfulness of the additional licence conditions being imposed in Mr Taylor’s case but denied liability:

“Whilst the Defendant acknowledges for the purposes of these proceedings alone that… the Secretary of State had no power to impose [the additional conditions] in circumstances where the release of the Claimant on licence was automatic as opposed to being directed by the Parole Board, the Defendant denies that the same makes the recall of the Claimant unlawful.”

On 28^th January 2025, Mr Taylor filed a Reply to the Defence on each ground:

On the latter issue, on 12^th July 2015, Mr Taylor also applied to amend Ground 5 in his Particulars of Claim to allege 15 different breaches of the DPA, some relating to additional licence conditions, but some not, e.g. factual inaccuracies in the Recall Report. Mr Taylor also applied on 20^th May 2025 for an injunction to require a different Probation Officer. As with Mr Nwagwu, on 19^th July 2025, Mr Taylor applied to add a claim for Contempt arising out the seizure of his paperwork from Mr Truter’s cell. As I have said, I gave a separate judgment relating to that cell search because it also relates to a third prisoner, but I return to it at the end.

As with Mr Nwagwu, on 10^th September 2025, the Defendant applied in Mr Taylor’s case to withdraw its admission that the additional licence conditions were unlawful and amend its Defence to that effect. The draft Amended Defence also contends the claim is an abuse of process as it challenges the Defendant’s recall decision (which the draft Amended Defence contends is a public law challenge that should have been made by Judicial Review) and seeks strike-out under CPR 3.4 as such and for ‘no reasonable grounds for bringing the claim’. I listed all the linked applications before myself remotely on 10^th October and as explained I then heard further submissions on 31^st October and 14^th November. The common issue in the Defendant’s applications to strike-out the claims of Mr Taylor and Mr Nwagwu is that each of their claims was predicated on the alleged unlawfulness of the additional licence conditions under s.250(5A) CJA. However, that presupposes that s.250(5A) applied to the additional licence conditions which the Defendant imposed on their releases in January and May 2023. The Defendant contends that it did not, due to the amendment to ss.250(5A)-(5C) CJA in June 2022. Therefore, I turn to that central issue of statutory interpretation.

As the Claimants are in-person, I will detail the contemporary approach to statutory interpretation. Lord Hodge said in R(O) v SSHD [2023] AC 255 (SC) at [29]-[31]:

“29 The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson Ltd v Papierwerke Waldhof-Aschaenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context’. (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in…Spath Holme, p 397: ‘Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”

30.

External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision…..

The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty and indeed may reveal ambiguity or uncertainty.. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.

31.

Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme in an important passage stated:

“The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House …Thus, when courts say that such-and-such a meaning _cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning’…

In R(O) at [30], Lord Hodge said that ‘external aids’ ‘assist the Court to take a purposive interpretation’ of a provision. In N3 v SSHD [2025] 2 WLR 386 (SC) at [63]-[64], Lord Sales and Lord Stephens also linked Lord Hodge’s analysis in R(O) at [29] on the primacy of the statutory language to the classic modern judicial statements on ‘purposive statutory interpretation’:

In R(O) at [41], Lord Hodge also discussed the role of long-standing interpretative ‘assumptions and presumptions’:

“In performing [its] interpretative task, the Court has regard to well-established prima facie assumptions. It is an aspect of the principle of legality that Parliament is assumed to take for granted long-standing principles of constitutional and administrative law and a statute is to be interpreted accordingly: R v SSHD, Ex p Pierson [1998] AC 539, 587-588. Thus, for example, where Parliament confers an administrative power there is a presumption that it will be exercised in a manner that is fair in all the circumstances: R v SSHD, Ex p Doody [1994] 1 AC 531, 560…These and other assumptions or presumptions are part of the tools used by the courts in the interpretation of statutes. The weight to be attached to such presumptions will vary depending upon the circumstances of the case and the nature of the rights affected by the legislation under consideration.”

However, as Lord Hodge also explained in R(O) at [33], the ‘Principle (or (‘Presumption’) of Legality’ discussed in Exp Pierson and other prisoner cases like R v SSHD exp Simms [2000] 2 AC 115 (HL) only protects fundamental common law rights (such as the right to liberty). Moreover, as Lord Sales and Lord Stephens said in N3 at [66], ‘Legality’ cannot allow a Court to ‘disregard an unambiguous expression of Parliament's intention’. The same is true of a related interpretative presumption against retroactivity of legislation unless it clearly states it is retroactive (‘Non-Retroactivity’), although that also relies on fairness and the pre-existence of ‘vested rights’. In Docherty at [17], Lord Hughes pointed out that ‘Non-Retroactivity’ overlaps with s.16(1) Interpretation Act 1978 (‘IA’):

“…[W]here an Act repeals an enactment, the repeal does not, unless the contrary intention appears….(b)  affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c)  affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment; (d)  affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that enactment; (e)  affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability…or punishment….”

The ECHR contains a similar principle relating to crimes and sentences in Art.7(1):

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national… law…when it was committed. Nor shall a heavier penalty be imposed than the one….applicable at the time the criminal offence was committed.”

However, Art.7 is not relied on by the Claimants, who rely instead on Arts.5 and 8:

“5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law….

5(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if [it] is not lawful.

5(5) [Any] victim of arrest or detention in contravention of provisions of this Article shall have an enforceable right to compensation….

8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

8(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Claimants bring claims against the Defendant as a public authority under s.7 HRA which I consider below, but presently relevant is s.3 HRA:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

In Ghaidan v Godin-Mendoza [2004] 2 AC 557 (HL) Lord Nicholls observed:

“32.

…[T]he mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make [that] interpretation under s.3 impossible. s.3 [HRA] enables language to be interpreted restrictively or expansively. But s.3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, to make it Convention-compliant. In other words, the intention of Parliament in enacting s.3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.

33.

Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary that s.3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of s.3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry ‘go with the grain of the legislation’. Nor can Parliament have intended that s.3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant and the choice may involve issues calling for legislative deliberation.”

So, s.3 HRA goes rather further than the Common Law presumptions discussed.

Therefore, this case raises not just domestic statutory interpretation summarised in R(O) and other cases, but also s.3 HRA as summarised in Ghaidan. Consistently with the approach discussed in R(O) and N3, I will start with the meaning of the statutory language of s.250 CJA; then read it in its statutory setting as discussed in R(O) at [29]; next I consider the ‘external aids’ in R(O) at [30] - particularly legislative history as in N3 ; then the impact of the presumptions of Legality and Non-Retroactivity discussed in R(O), N3 and Docherty and whether s.3 HRA requires a different reading as discussed in Ghaidan. This ‘holistic’ approach to interpretation reflects the importance of the issue not just to the Claimants, but also to thousands of other EDS prisoners. I will address the points made by the Claimants at all three hearings before me.

I set out ss.250(4)-(5C) CJA at the start of the judgment, which is critical, but I now set out the rest of the section so far as material as it currently stands (as amended on 28^th June 2022 by s.134 Police, Crime Sentencing and Courts Act 2022 (‘PCSCA’)):

“(1)

In this section (a) ‘the standard conditions’ means such conditions as may be prescribed for the purposes of this section as standard conditions, and (b)“prescribed” means prescribed by the Secretary of State by order….

(4)

Any licence…in respect of a prisoner serving a sentence of imprisonment ...(including…. imposed under section 226A, 227 or 236A, or under section 278, 279 or 282A…Sentencing Code [‘SC’])…. (a) must include standard conditions… and (b) may include (i) any other condition authorised by ss.62, 64 or 64A Criminal Justice and Court Services Act 2000 or s.28 of the Offender Management Act 2007 and (ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of this paragraph as [it] may for the time being specify in the licence.

(4A) In exercising any power under subsection (4)(b) in respect of an offender, the Secretary of State must have regard to any recommendation under section 328 of the Sentencing Code (power of court to recommend licence conditions where adult is sentenced to term of 12 months or more).

(5)

A licence under section 246 must also include a curfew condition complying with section 253.

(5A) The Secretary of State must not (a) include a condition referred to in subsection (4)(b)(ii) in a licence within subsection (5B), either on release or subsequently, or (b) vary or cancel any such condition included in such a licence, unless the Board directs the Secretary of State to do so (and must, if the Board so directs, include, vary or cancel such a condition).

(5B) A licence is within this subsection if it is granted to a relevant prisoner (a) on their initial release in a case where that release is at the direction of the Board, or (b) on their release after recall to prison in a case where release is at the direction of the Board (ss.255B(5), 255C(5) and 256A(5)).

(5C) In subsection (5B), ‘relevant prisoner’ means a prisoner to whom section 244ZC, 244A, 246A, 247 or 247A applies (or applied) for the purposes of their initial release.

(8)

In exercising his powers to prescribe standard conditions or the other conditions referred to in subsection (4)(b)(ii), the Secretary of State must have regard to the following purposes of the supervision of offenders while on licence under this Chapter (a) the protection of the public, (b) the prevention of re-offending, and (c) securing the successful re-integration of the prisoner into the community.”

Before entering the complex context of s.250 CJA, I would make five simple preliminary points.

Again, initially focussing simply on the language of s.250(5A)-(5C) CJA, that prohibition (or ‘bar’) seems to have three steps to it, working backwards in the subsections:

By contrast, the Claimant’s suggested interpretation of s.250(5A)-(5C) is less straightforward. As I understood it at the first hearing, it was that for all ‘relevant prisoners’ under s.250(5C) who are released initially or re-released after recall under s.250(5B), only the Parole Board can direct ‘additional licence conditions’ under s.250(5A). However, that overlooks the phrase ‘where that release is at the direction of the Board’ in both limbs of s.250(5B) CJA. That simple point is not affected by the old ‘canons of construction’ such as ‘generalia specialbus non derogant’ (‘general rules do not derogate from specific rules’) and ‘fraudem legis’ (‘fraud on an Act’) discussed by Lord Rodger in R v J [2005] 1 AC 562 (HL) at [63]-[64], holding the old 12-month time limit for prosecuting Indecent Assault under the predecessor of the Sexual Offences Act 2003 could not be ‘interpreted away’. I readily accept s.250(5A) is a ‘specific rule’ which cannot be ‘derogated from’ by the ’general rule’ in s.250(4). However, in my view that ‘specific rule’ in s.250(5A) operates only as I have described.

However, in response to my draft judgment, the Claimants argued a slightly different point – namely that s.250(5A) applied either to s.250(5B) (i.e. release by the Parole Board under s.246A(5) CJA or to re-release by it under s.255C(5)); or to ‘relevant prisoners’ under s,.250(5C) such as themselves released by the Defendant at the end of the custodial terms under s.246A(7) CJA. However, s.250(5A) clearly only applies if s.250(5B) and (5C) apply, not if s.250(5B) or (5C) apply – indeed s.250(5B) cannot apply unless s.250(5C) applies. The language of s.250(5A)-(5C) CJA is clear and unambiguous: s.250(5A) only applies to licences where release is at the direction of the Parole Board in the circumstances specified. There is no violence – or indeed fraud – done to a statute in interpreting its clear language. I have sympathy for the Claimants’ view – after all it was also the Defendant’s initial reading - but such misreading of s.250(5B) cannot change its meaning, which in my view is entirely clear.

Moreover, this straightforward interpretation is supported by consideration of the ‘statutory setting’ of s.250 CJA. As Lord Hodge said in R(O) at [29] ‘A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context’. That includes the provisions on the EDS regime summarised earlier and also the obligation on an offender released on licence to comply with licence conditions in s.252 CJA and liability to recall for breach under s.255 CJA. However, perhaps the most important ‘internal context’ actually referred to in s,.250(5C) CJA are the provisions it refers to creating five types of ‘relevant prisoner’, i.e. prisoners to whose initial release, s.244ZC, 244A, 246A, 247 or 247A apply. Since it is agreed the Claimants fall under s.246A, it may assist to set that out first so far as material:

“246A (1) This section applies to a prisoner (‘P’) serving an extended sentence imposed under ss.226A or 226B or under ss.254, 266 or 279 of the Sentencing Code other than a prisoner to whom s.247A applies.

(2)

It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the requisite custodial period for the purposes of this section if…

(a)

the sentence was imposed before the coming into force of s.4 Criminal Justice and Courts Act 2015 [13^th April 2015], (b) the appropriate custodial term is less than 10 years, and (c) the sentence was not imposed in respect of an offence listed in Parts 1 to 3 of Schedule 15B or in respect of offences that include one or more offences listed in those Parts of that Schedule.

(3)

In any other case, it is the duty of the Secretary of State to release P on licence in accordance with subsections (4) to (7).

(4)

The Secretary of State must refer P's case to the Board (a) as soon as P has served the requisite custodial period, and (b) where there has been a previous reference of P's case to the Board under this subsection and the Board did not direct P's release, not later than the second anniversary of the disposal of that reference.

(5)

It is the duty of the Secretary of State to release P on licence under this section as soon as (a) P has served the requisite custodial period, and (b) the Board has directed P's release under this section.

(6)

The Board must not give a direction under subsection (5) unless (a) the Secretary of State has referred P's case to the Board, and (b)the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.

(6A) Sections 246B and 246C contain provision that relates to the Board's function of giving directions under subsection (5) for the release of P.

(7)

It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for release of such persons being made by s.255C).

(8)

For the purposes of this section—'appropriate custodial term’ means the term determined as such by the court under section 226A or 226B or under section 254, 266 or 279 of the Sentencing Code] (as appropriate); ‘the requisite custodial period’ means— (a) in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and (b) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under ss.263(2), 264(2B), (2D) or (2E).”

Like s.250 CJA (although less crucially, as it related to s.246A(8) only), this section was amended on 28^th June 2022, discussed below. s.246A(1) applies the section to EDS prisoners under ss.226A-B CJA such as the Claimants and EDS prisoners under ss.254, 266 or 279 SC (other than certain terrorist prisoners under s.247A CJA). Whilst it is not apparent at first reading, s.246A does not apply to ‘old style extended sentence’ EPP prisoners whose early release is governed by s.247 CJA (also in s.250(5C)). But on close scrutiny, s.246A actually differentiates five different groups which I shall call ‘I’, ‘II’ ‘III’, IV’ and ‘V’).

Another ‘Venn Diagram’ is that s.250(5C) CJA and the concept of a ‘relevant prisoner’ in it is itself the ‘intersection’ of five quite different and wider groups of prisoners:

Indeed the ‘straightforward’ reading of ss.250(5A)-(5C) in this complex statutory setting is consistent with the agreed absence of a general power of the Defendant to re-refer to the Parole Board after it has ordered release, as held in R(SSJ) v Parole Board [2021] ACD 28 at [34] and R(Johnson) v Parole Board [2022] 1 WLR 4322 (HC) [37]. In response, s.133 PCSCA introduced in 2022 a Parole Board power to set aside its decisions.

In response to my draft judgment on this point the Claimants made two submissions:

I turn from the language of s.250 CJA and its ‘statutory setting’ to the ‘external aids’ to ss.250(5A)-(5C) CJA which can throw light on its meaning and purpose, but which cannot displace clear and unambiguous wording of the statute itself, as Lord Hodge said in R(O) at [30]. He added that an important ‘external aid’ is Explanatory Notes prepared to accompany legislation through Parliament, which shed light on ‘Parliamentary Intention’ in the sense he gave in R(O) at [31]. The current ss.250(5A)-(5C) CJA are amendments introduced on 28^th June 2022 by s.134 PCSCA. Its Explanatory Note at para.1015 summarises its effect:

“[It] substitutes existing subs (5A) to (5B) with new subs (5A) to (5C) to provide the Secretary of State must not include, vary or cancel certain licence conditions on licences of certain prisoners released in accordance with certain provisions unless the Board has directed th[at]…”

The Explanatory Note on the policy background to s.134 is also relevant:

“157.

The current system for setting and varying licence conditions for fixed-term prisoners is complex and confusing for practitioners to apply correctly and the provisions on responsibility for setting licence conditions are inconsistent across different determinate sentence types. This creates an environment where confusion and administrative mistakes can occur.

158.

Provisions made by s.134 will create a clear, consistent and logical split in responsibility for licence conditions for determinate sentence prisoners. This will be easier to operate in practice and corrects the current inconsistent approach that evolved through the CJA 2003 following previous changes to the release and recall provisions. Licence conditions for indeterminate prisoners remain the responsibility of the Parole Board.”

In my judgment, this is entirely consistent with the straightforward reading of the language of ss.250(5A)-(5C) discussed above, which makes ‘a clear, consistent and logical split’ between release on licence by the Parole Board, when it controls additional licence conditions; and release on licence by the Defendant, when it does so.

Indeed, the observation at paras.157-158 Explanatory Notes about the preceding provisions in s.250(5A) CJA being complex and confusing is borne out by a brief review of the legislative history of s.250 CJA, as shown by the annotated copy filed by the Claimants. This illustrates that it has been amended no fewer than 25 different ways in only just over 20 years. I will focus on the five key iterations of it:

However, these clear waters were muddied with the amendment to s.250 CJA in April 2015 (when the SOPC and other changes were introduced by the Criminal Justice and Courts Act 2015). s.250(5A) was replaced:

“(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison to (a) a prisoner serving an extended sentence under s.226A or 226B, other than a sentence that meets the conditions in s.246A(2) (release without direction of the Board) or (b) a prisoner serving a sentence imposed under s.236A.

(5B) The Secretary of State must not (a) include a condition referred to in (4)(b)(ii) in the licence, either on release or subsequently, or (b) vary or cancel any such condition…in the licence, unless the Board directs the Secretary of State to do so.” (my underline)

Whilst the new s.250(5B) continued the bar in similar terms, the convoluted new s.250(5A) did not continue to limit the bar to releases directed by the Board, but extended it to (b) the new SOPC sentences under s.236A CJA; and (a) all EDS prisoners released or re-released on licence ‘other than a sentence that meets the conditions in s.246A(2) (release without direction of the Board)’. s.246A(2) from 2015-2022 provided (as it still does since 2022) for release on extended licence at 2/3 of the custodial term by the Defendant of pre-2015 sentenced EDS prisoners of less than 10 years’ custodial term not imposed for a Sch.15B offence. However, the problem was s.250(5A) overlooked s.246A(7), which provided and still provides:

“It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under s.254 (…by s.255C).”

s.4 Criminal Justice and Courts Act 2015 amended s.246A CJA, as its Explanatory Note said, to ensure that EDS offenders ‘will only get early release if the Parole Board directs release’. But the Explanatory Note to s.15, which introduced the new ss.250(5A)-(5B) said nothing about why it was intended that the Defendant could not impose additional conditions on EDS prisoners that it released at the end of their custodial term without direction of the Parole Board, which was not involved and when there was no power for the Defendant to re-refer to it for such directions. So, when Mr Truter was released at the end of his custodial term in September 2019, his additional licence conditions under s.250(4)(b)(ii) including in his extended EDS licence without involving the Parole Board were unlawful, as is now admitted.

This gap was not entirely filled in 2020 when s.250 CJA was amended firstly in February 2020 by the Terrorist Offenders (Restriction of Early Release) Act 2020 (‘TOA’) and then in December 2020 by the Sentencing Act 2020 (‘SA’) (just after the admission of unlawfulness in Mr Truter’s case). s.250 CJA was re-written once again:

“(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison, to (a) a prisoner serving an extended sentence imposed under ss.226A or 226B or under ss. 254, 266 or 279 Sentencing Code, other than a sentence that meets the conditions in s.246A(2) (release without direction of the Board), or (b) a prisoner serving a sentence imposed under s.236A or under ss.265 or 278 of the Sentencing Code.

(5B) The Secretary of State must not (a) include a condition referred to in (4)(b)(ii) in the licence, either on release or subsequently, or (b)vary or cancel any such condition…in the licence, unless the Board directs the Secretary of State to do so.

(5BA) But in the case of a licence granted to a prisoner to whom s.247A applies, or would apply but for the prisoner's release under the licence, subs.(5B) applies only if the licence was granted following a direction of the Board for the prisoner's release.”

Therefore, s.250(5BA) was introduced by the TOA in February 2020 and stated that for terrorism EDS/EPPs under s.247A, s.250(5B) only applied if the Parole Board had ordered release. But this did not fill the gap more widely. Nor did the SA which adapted the 2015-version of s.250(5A) to include reference to the new EDS provisions in its new ‘Sentencing Code’ (‘SC’). Finally, in April 2021, under the Counter-Terrorism and Sentencing Act 2021 (‘CTSA’), whilst s.250(5B) remained the same, s.250(5A) was overhauled yet again and s.250(5BA) replaced with s.250(5AA),

“(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison, to (a) a prisoner, other than a terrorist prisoner, serving an extended sentence imposed under ss.226A or 226B or under ss.254, 266 or 279 of the Sentencing Code, other than a sentence that meets the conditions in s.246A(2) (release without direction of the Board), or (b) a prisoner, other than a terrorist prisoner, serving a sentence imposed under s.236A or under s.252A, 265 or 278 of the Sentencing Code.

(5AA) Subsection (5B) also applies to a licence granted, either on initial release or after recall to prison, to a terrorist prisoner in a case where the licence is granted following a direction of the Board for the prisoner’s release.” [(5B) remained similar].

s.250(5A) CJA would have been the convoluted provision that the Defendant would have had to wrestle with applying upon its release of ‘X’ - the hypothetical EDS prisoner with the same 6-year custodial 6-year extension EDS, but released a year earlier in April 2022, just before s.134 PCSCA 2022 amended it again on 28^th June 2022. In the light of all this, it is easy to see why the Explanatory Note to s.134 PCSCA described the previous provisions as ‘complex, confusing and inconsistent’ and as ‘creating an environment where confusion and administrative mistakes can occur’ as one had with Mr Truter. This tortuous legislative history reinforces the clarifying purpose of s.134 PCSCA which was plainly intended to simplify these provisions.

Standing back, I make three observations about that legislative history:

Given my discussion of legislative history, I will start with the Common Law presumption against retroactivity, which was mentioned in relation to the transitional provisions of LASPO in Docherty at [17] and linked to the terms of s.16 Interpretation Act 1978 (‘IA’) quoted earlier. For the reasons just discussed I cannot accept s.134 PCSCA removed any ‘vested rights’ to have additional licence conditions only imposed by the Parole Board – that had been an accidental by-product of legislative complexity and not at all ‘unfair’ to remove. In any event, even if that is wrong, again for the reasons discussed, s.134 PCSCA in my view unequivocally did ‘remove that right’ by plain ‘contrary intention’ under s.16 IA. As explained, part of the purpose of s.134 PCSCA was to correct the previous convoluted provisions – it was its mischief (R(Quintavalle)). In any event, it was not ‘retroactive’, the new provision came into force on 28^th June 2022 only with effect for releases from that date. Indeed, half the complexity of the prior legislation had derived from attempts to avoid putting prisoners in a worse situation than when they were sentenced, e.g. the carve-out for pre-2015 EDS in s.246A CJA. Nevertheless, I appreciate the Claimants may have a sense of grievance that the hypothetical ‘X’, who had the same sentence but happened to be released earlier, benefitted from the previous position. However, that does not mean Parliament in 2022 did not intend to change that position. Sometimes, Parliament will intentionally maintain for existing prisoners an earlier beneficial sentencing and licence regime which it is restricting, as the original CJA itself preserved the pre-CJA 2003 licence regime for prisoners sentenced before the regime came into force on 4^th April 2005 even if released and recalled after that as in R(Stellato) v SSHD [2007] 2 WLR 531 (HL). However, on other occasions, Parliament will intentionally preserve for existing prisoners an earlier sentencing regime which it is discontinuing, such as the controversial ‘IPP’ (or ‘Sentence of Imprisonment for Public Protection’) introduced by CJA 2003 but discontinued in LASPO 2012. Docherty concerned a prisoner sentenced to an IPP after it was discontinued, because he was convicted before its commencement date. Finding that was lawful, Lord Hughes explained in Docherty at [50] and [53]:

“New legislation frequently calls for carefully planned and phased commencement…..New sentencing regimes may require quite extensive administrative adjustments, for example to the organisation of the probation service or the prisons. They may also, and in England and Wales often do, entail complex adjustments to the associated rules for early release, as do the new EDS provisions in LASPO. Phased introduction of sentencing changes is perfectly sensible. The decision about what to introduce when can be complex and may well admit of more than a single solution, but there is nothing unlawful about leaving it to the minister charged by the statute with making the necessary commencement orders… The reality is that all changes in sentencing law or practice have to start somewhere. It is perfectly rational, indeed sensible, for a date to be fixed and for sentencing of any offender which takes place after that date to be governed by the new rule/practice, whenever the offence was committed, in accordance with the usual English approach and subject only to avoiding lex gravior [explained below]. That is the practice now adopted by the Sentencing Council when promulgating new guidelines.”

In Docherty at [29]-[30], Lord Hughes also explained the part of Art.7 ECHR stating ‘Nor shall a heavier penalty be imposed than….applicable at the time the crime was committed’. It was held in Scoppola v Italy (No.2) (2009) 51 EHRR 12 by the ECtHR Grand Chamber not just to articulate the international law principle of ‘lex gravior’ (i.e. ‘no heavier penalty than that in force when a crime was committed’), but also implicitly ‘lex mititor’ (i.e. ‘if at the time of sentence, the law provides for a lighter penalty, the offender shall benefit from it’). In Docherty at [55], Lord Hughes said both principles were already reflected in English sentencing practice. However, neither ‘lex gravior’ nor ‘lex mitior’ are offended by the straightforward reading of ss.250(5A)-(5C) CJA - it neither raises the sentence on the Claimants from when they committed their crimes; nor departs from usual practice when they were sentenced. By contrast, in Docherty at [13]-[15], Lord Hughes noted the ‘penalty’ for some sexual violent and terrorism offences was increased by LASPO in 2012 with the introduction of the tougher EDS rather than the EPP, but as with the CJA in 2005 discussed in R(Stellato), the transitional provisions respected both lex gravitor and lex mitior by excluding those sentenced earlier from the change. So too did the 2015 Act when it stopped automatic release at the 2/3 point for (new) EDS prisoners. The Claimants committed their offences and were sentenced after that change. Moreover, their ‘additional conditions’ reflected the law at the time of their release and were not more onerous than those imposable by the Parole Board, so there was no violation of Art.7 ECHR nor need for s.3 HRA to ‘read down’ s.250(5A)-(5C). Likewise, there is no arguable ‘discrimination’ under Art.14 ECHR between the Claimants and X (or Mr Truter). They are not in analogous positions because they are subject to different licencing regimes before and since 2022 overhauled by PCSCA. Those different regimes must be considered holistically not by focusing on one aspect in isolation: Stott (since upheld in the ECtHR). In any event, the change in PCSCA is plainly objectively justified under Art.14 to correct a lacuna and clarify the previous regime, which is in all prisoners’ interests. Whilst the Claimants did not rely on Arts.7 or 14 ECHR, I have considered them in fairness. But they do allege breach of Art.8 and Art.5 ECHR. I will consider the alleged breaches briefly below, but first consider whether Arts.5 and 8 require ‘reading-down’ under s.3 HRA of the ‘straightforward’ reading of s.250(5A)-(5C) CJA.

With Art.8, whilst I entirely accept imposition of the ‘additional licence conditions’ in Reg.7 LCO interfered with the Claimant’s private and family life under Art.8(1) ECHR by regulating residence and contact with people, that is an issue (considered below) whether those conditions on the facts were justified under Art.8(2), as in R(X) v SSJ [2017] 4 WLR 106 (CA), where imposition of a terrorism offender’s licence conditions lawfully restricted family life on the facts. But the present issue is whether ss.250(5A)-(5C) CJA need ‘reading-down’ under s.3 HRA to comply with Art.8. In short, as discussed, to be ‘in accordance with the law’ under Art.8(2), additional licence conditions need only to be imposed on the direction of the Parole Board under s.250(5A) CJA if ‘relevant prisoners’ under s.250(5C) CJA are (re-) released on licence at the direction of the Parole Board under s.250(5B) CJA. That rule in my view does not arguably interfere with Art.8(1) family or private life, let alone violate Art.8(2). It is not as if ss.250(5A) requires imposition of additional licence conditions irrespective of the circumstances: it only restricts the broad discretion on the Defendant under s.250(4)(b)(ii) CJA to impose such conditions consistent with s.250(8). Similarly, s.250 CJA and Art.8 were held in R(X) not to require consultation with a local authority about any interference with family life.

With Art.5 ECHR, as discussed below, I accept imposition of ‘additional licence conditions’ may sometimes amount to ‘deprivation of liberty’ under Art.5. Art.5 is not limited to imprisonment, but turns on whether an individual is actually ‘confined’ in their ‘concrete situation’ in all relevant circumstances including the type, duration, effects and manner of implementation of the measures, assessing their impact on him in the context of the life he might otherwise have lived, like the 18-hour curfew in a Terrorism Control Order in SSHD v JJ [2008] 1 AC 385 (HL). There can be ‘deprivation of liberty’ under Art.5 ECHR even without violation of Art.8 ECHR, as the latter can be justified on the facts generally, whilst Art.5 can only be justified if the facts fall in the exhaustive list of justifications in Art.5(1): JJ and SSHD v AP [2010] 3 WLR 51 (SC). However, unlike the Terrorism Control Orders in JJ and AP, which do not fall within Art.5(1) exhaustive list, an EDS extension period is imposed as part of the original sentence, so is justified under Art.5(1)(a), even if recall on that licence is a distinct ‘deprivation of liberty’ under Art.5 ECHR (see Brown at [56]-[63] discussed below). Therefore, even if it is a ‘deprivation of liberty’ under Art.5 (which I consider separately below), the imposition of ‘additional licence conditions’ (as opposed to recall under them) in a licence period imposed by the original sentencing Court does not violate Art.5, even if imposed by the Defendant (not a ‘Court’ under Art.5) rather than the Parole Board (which is). So, there is no need to ‘read-down’ ss.250(5A)-(5C) to comply with Art.5.

Finally, even if not a ‘deprivation of liberty’ under Art.5 ECHR, additional licence conditions requiring residence at Approved Premises with a curfew can be Common Law ‘imprisonment’: R(Jalloh) v SSHD [2020] 2 WLR 418 (SC) (which referred to JJ). So, the Common Law right to liberty is engaged by s.250(4)(b)(ii) and 250(5A)-(5C) CJA which require clear words to justify loss of liberty under the Principle of Legality: Exp Pierson and Exp Simms. However, as I have explained, there are clear words in s.250 CJA justifying the Defendant imposing additional licence conditions under s.250(4)(b) and still clearer in ss.250(5A)-(5C) CJA that they do not require Parole Board direction unless it is a Parole Board (re-)release. As discussed, that is (at last) a clear and unambiguous expression of Parliament’s clear intention and purpose (R(O) at [31], N3 and see R(Gul) v SSJ [2014] ACD 106 (DC) at [53]-[54]). Therefore, the interpretative presumptions and s.3 HRA are all consistent with the ‘straightforward interpretation’ of ss.250(5A)-(5C) CJA which I now adopt.

Therefore, not only s.250 CJA itself, but its statutory setting, legislative history, Common Law presumptions and Art.3 HRA all point individually and iteratively to the ‘straightforward’ interpretation of ss.250(5A)-(5C) CJA. I have elaborated it in such detail due to its importance to all EDS prisoners (indeed to their victims, the public generally, the Parole Board and Defendant who originally thought it meant something else). But essentially I accept Mr Rahman’s ‘simple’ submission: ss.250(4)(b)(ii) and (5A)-(5C) CJA now mean that Parliament unequivocally intended (in the sense of R(O) at [31]) that the Parole Board need only direct additional licence conditions falling within s.250(4)(b)(ii) CJA where the Parole Board are directing (re-)release. That is my conclusion on the interpretation issue.

The case has been argued by the Defendant and Claimants on the basis that their claims stood or fell on that key interpretation issue. Having resolved it, I can now deal with strike-out more briefly under five sub-headings: (i) whether the Defendant should be permitted to withdraw the admissions and the associated test for strike-out, (ii) whether to strike out the Claimant’s claims about the additional licence conditions, (iii) whether to strike out their claims about recall, (iv) whether their claims are an abuse of process; and then (v) a brief summary of my decision and where that leaves the Claimant’s claims.

As Mr Rahman said, Civil Procedure Rule (‘CPR’) 17.3 governs the granting of permission by the Court to amend a Statement of Case such as a Defence, which should be exercised in accordance with the Overriding Objective under CPR 1:

“1.1

These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

1.2

Dealing with a case justly and at proportionate cost includes, so far as is practicable (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; (f) promoting or using alternative dispute resolution; and (g) enforcing compliance with rules, practice directions and orders.”

As this is an amendment application soon after the statements of case and is a relatively simple amendment to withdraw the admission, in my view, permitting the amendment is in accordance with the Overriding Objective, provided that the test for giving permission to withdraw an admission is met under CPR 14.5:

“In deciding whether to give permission for an admission to be withdrawn, the court shall consider all the circumstances of the case, including (a) the grounds for seeking to withdraw the admission; (b) whether there is new evidence that was not available when the admission was made; (c) the conduct of the parties; (d) any prejudice to any person if the admission is withdrawn or not….withdrawn; (e) what stage the proceedings have reached; in particular, whether a date or period has been fixed for the trial; (f) the prospects of success of the claim or of the part of it to which the admission relates; and (g) the interests of the administration of justice.”

There is no hierarchy of those factors; each will be given appropriate weight, together with the circumstances, with the aim of achieving the Overriding Objective: Woodland v Stopford [2011] EWCA Civ 266. In the present case, I give permission to the Defendant to withdraw its admissions and amend the Defences for the following reasons:

Turning to the test for strike-out, CPR 3.4(2) states:

“The court may strike out a statement of case if it appears to the court (a) the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; (c) there has been a failure to comply with a rule,..or order…”

There is no suggestion that the Claimants have failed to comply with a Court order or the CPR under (c) and I will discuss the alleged ‘abuse of process’ under (b) later. The key basis for the Defendant’s strike-out application is (a): the Particulars of Claim ‘disclose no reasonable grounds for bringing the claim’. As Warby J (as he was) said in Duchess of Sussex v AN [2020] EWHC 1058 (QB) para.33(2)

“CPR r.3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should ‘grasp the nettle’. But it should not strike out under this sub-rule unless it is ‘certain’ that the statement of case, or part under attack, discloses no reasonable grounds of claim…Even then, the Court has a discretion…[if] the defect might be cured by amendment it may refrain from striking out and give [that] opportunity.”

I will refer to this by the common shorthand of ‘bound to fail’. Therefore, as Warby J said, the test for strike-out permits deciding a pure point of law, as I have done with the interpretation issue. I also set out the assumed facts pleaded by the Claimants at the start of this judgment. Both Claimants contested their breach of the licence conditions, but there is no other material disputed facts and the Parole Board found both their recalls were appropriate. Therefore, assuming in the Claimants’ favour that they did not in fact breach their licence conditions, I will consider whether their claims about those conditions themselves and on recall are ‘bound to fail’.

Mr Taylor’s Grounds 1 (unlawfulness of conditions in domestic law), 2 (false imprisonment and Art.5 ECHR by the additional conditions themselves), 4 (Art.8 ECHR by the conditions themselves) and 5 (breach of DPA 2018 by reference to licence conditions) can be considered together as they overlap, along with Mr Nwagwu’s similar claims. Then I will consider the Claimants’ claims about their recalls.

The first basis of claim for each Claimant is that imposition of additional licence conditions (including those forming the partial basis for their recall) were unlawful in domestic law in the absence of Parole Board direction under s.250(5A)-(5C) CJA. However, I have interpreted those provisions not to apply unless (re-)release is at the direction of the Parole Board. Since it is the Claimants’ own case the Parole Board were not involved in either of their releases, it follows those claims are ‘bound to fail’ as there was a lawful basis to impose additional licence conditions under s.250(4)(b)(ii) CJA, provided they were consistent with the purposes in s.250(8) (which has not been questioned). A ‘curfew arrangement’ is specifically listed in Reg.7(2)(g) and (3) LCO and as made clear in R(Gul) at [51], a specific condition need not actually be listed in Reg.7 LCO, as the ‘mobile’ and ‘usage history’ conditions prohibit ‘possession of specified items’ under Reg.7(2)(e). Even if the conditions amounted to ‘imprisonment’ at Common Law, it is a defence to ‘false imprisonment’ if there is lawful authority, though a public law error relevant to detention can invalidate authority: R(Lumba) v SSHD [2011] 2 WLR 671 (SC) and R(Niagui) v HMP Wandsworth [2023] 4 WLR 2 (HC). However, as ss.250(5A)-(5C) CJA did not apply, there was statutory authority to impose conditions under s.250(4)(b)(ii). That is different from R(Jalloh), where it was admitted there was no immigration statute power to impose an 11pm-7am curfew. Nor is there any other suggested or arguable ‘public law error’ in the imposition of the conditions themselves. Therefore, Ground 1 of Mr Taylor’s claim is bound to fail, as is that allegation in Mr Nwagwu’s claim.

Turning to Art.5 ECHR, as also confirmed in R(Jalloh), the Common Law test of ‘imprisonment’ met by that curfew, was different from the Art.5 ECHR test of ‘deprivation of liberty’ set out above. Whilst an 18-hour curfew in JJ was held to constitute ‘deprivation of liberty’, an electronically-monitored 16-hour curfew in AP was only found to amount to a ‘deprivation of liberty’ due to the impact of isolation and distance from family.

Art.8 ECHR is not directed by either Claimant against the curfew and/or other additional licence conditions. But assuming the conditions ‘interfered’ with the Claimants’ private and family lives under Art.8(1), any argument they were not ‘justified’ under Art.8(2) is bound to fail. As I have found, the additional licence conditions were lawful in domestic law and so ‘in accordance with the law’ under Art.8(2) ECHR. They were also sufficiently clear to do so (see R(Gul) at [63]). Moreover, given the Claimants’ previous convictions, all the conditions were plainly necessary in a democratic society for public safety, the prevention of crime and the protection of the rights and freedoms of others. In R(Gul), when rejecting an Arts.8, 10 and 11 ECHR challenge to licence conditions impacting on contact and association of a terrorism offender Beatson LJ said at [72]

“It is important to recall the nature of release on licence. [There is a] distinction between..an offender in whom the state has legitimate interest in rehabilitating and a citizen without a blemish on his record exercising one of the fundamental freedoms of all citizens protected by the ECHR…. I respectfully agree with the observations of Moses J (as he then was) in R (Carman) v SSHD [2004] EWHC 2400 (Admin) at [33] that ‘the licence conditions and assessment of risk to the public, on which they are based, are matters of fine judgment for those in the prison and probation service experienced in such matters, not for the courts. The courts must be steadfastly astute not to interfere save in the most exceptional case’…”.

Whilst Beatson LJ doubted the term ‘exceptional’ in R(Carman), in R(X) Davis LJ had no qualms in saying at [49] that it is likely to be ‘exceptional’ that permission would be granted to judicially review licence conditions. Whilst this is not a Judicial Review case (as I discuss below), the same point applies to any challenge under s.7 HRA. Both Claimants were subjected to conditions requiring them to be resident in Approved Premises with a curfew and which controlled (not removed) their access to mobile phones and social media on condition they did not delete usage history. Ultimately, this was because Mr Taylor had been convicted of trying to kidnap children for sexual motives, then assaulted someone in prison and had not been released until the end of his custodial term. Mr Nwagwu was also a serious sexual offender with a Sexual Harm Prevention Order, which overlapped significantly with the additional licence conditions anyway. Those conditions were indisputably justified under Art.8(2) ECHR and any claim to the contrary by either Claimant is bound to fail. (For good measure, so too is Mr Taylor’s application for an injunction to change his Probation Officer based on his imposition of the additional licence conditions, since I have found them lawful).

Finally in relation to the additional licence conditions, there is the data protection claim. It is important to differentiate between the Claimants’ complaints about the additional licence conditions; and other DPA complaints. As set out in the claims, under the DPA 2018, the Defendant is a data controller required to process the Claimants’ data in accordance with Data Protection Principles, including the First Principle requiring processing to be lawful and fair; the Fourth Principle that it is accurate and kept up to date; and the Fifth Principle that it should not be kept longer than necessary. In AB v CC British Transport Police [2022] EWHC 2749 (KB) at [30] and [78], Johnson J observed in relation to ‘accuracy’ in the Fourth Principle that it is necessary first to decide what the data in question objectively means and there is a difference between that data simply recording allegations or opinions which need not be factually accurate and data recorded as stating true facts which must be accurate. AB was distinguished by the (unnamed) County Court Judge in Stellato v SSJ (2024) (it is unclear whether the same prisoner as in the earlier House of Lords case mentioned above). The Judge held that various entries in prison files were recorded inaccurately under the Fourth Data Protection Principle as true facts rather than opinions or reports. But this does not detract from the essential principle in AB, which bound the County Court Judge in Stellato as it binds myself in the High Court unless I consider it incorrect which I do not. Indeed, I respectfully agree with Johnson J’s analysis in AB. For all its illuminating analysis, the decision in Stellato in my view establishes no new proposition of law, it simply illustrates the principle in AB as applied to data which is inaccurately recorded as fact. However, I agree that Stellato does show that the same principles apply to personal data held by a prison and the Defendant relating to a prisoner, who has the same rights as other data subjects. The relevant rights in this case are a right of access under s.45 DPA and rectification under s.46 CPA. s.169 DPA also states:

“(1)

A person who suffers damage by reason of a contravention of a requirement of the data protection legislation, other than the GDPR, is entitled to compensation for that damage from the controller or the processor, subject to subsections (2) and (3).(2)…

(2)

Under (1), (a) a controller involved in processing of personal data is liable for any damage caused by the processing, and (b) a processor involved in processing of personal data is liable for damage caused by the processing only if the processor— (i) has not complied with an obligation under the data protection legislation specifically directed at processors, or (ii) has acted outside, or contrary to, the controller’s lawful instructions.

(5)

In this section, ‘damage’ includes financial loss and damage not involving financial loss, such as distress.”

A mere infringement of the GDPR or data protection principles does not itself amount to ‘damage’, although it need not be actionable at common law and ‘distress’ is enough: Farley v Paymaster [2025] EWCA Civ 1117.

Nevertheless, all of Mr Nwagwu’s DPA claim and much of Mr Taylor’s Particulars of Claim on the DPA rest on the contention that it was unlawful, unfair and inaccurate for the Defendant’s own reports and their inclusion in Parole Board dossiers to refer to the additional licence conditions without being clear that they were unlawful. Since I have found those conditions were entirely lawful (and indeed compliant with the ECHR), it follows Mr Nwagwu’s DPA claim and those parts of Mr Taylor’s predicated on the unlawfulness of the licence conditions are bound to fail.

However, Mr Taylor’s DPA claim goes further in his Particulars of Claim at paras.42-43, which plead a point not reliant on the mistakenly asserted unlawfulness of the additional licence conditions: that the Defendant’s parole dossiers are incorrect. Moreover, on 12^th July 2025, Mr Taylor applied to amend his DPA claim to add a schedule of 15 allegations expanding on that. 9, 10 and 15 assume the unlawfulness of the additional licence conditions and are bound to fail, but 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13 and 14 do not. Under CPR 17.1, Mr Taylor needs permission to amend, which depends whether the amendments are arguable (the Court will not allow amendments that are bound to fail) and whether amendment is consistent with the Overriding Objective: Quah v Goldman Sachs [2015] EWHC 759 (Comm). But as I announced at the hearing on 31^st October 2025, Mr Taylor’s proposed amended allegations are bound to fail and his data protection claim should be struck out:

Mr Taylor and Mr Nwagwu also allege their recall breached domestic law and Art.5 ECHR. The key case on Art.5 is Brown, which concerned Scottish extended sentence prisoners under slightly different provisions, but the same principles were applied to the Northern Irish provisions in Rainey’s Judicial Review [2019] NICA 76 on the basis they underpinned any differences in detail - and I accept the same principles apply to the slightly different again provisions in England and Wales I have discussed as well. In Brown, Lord Reed explained the inter-relationship between Art.5 ECHR and domestic law:

“2….The essential aim of Art.5 is to confer protection against arbitrary or unjustified deprivation of liberty. Article 5.1 provides a list of permissible grounds for deprivation of liberty, each of which is qualified by the requirement that the detention is ‘lawful’ and ‘in accordance with a procedure prescribed by law’. In the present case, it is article 5.1(a) which is relevant: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court…”

3.

It has long been accepted by the European court that article 5.1 requires a relationship between the detention regime and the purpose of the deprivation of liberty: Ashingdane v UK (1985) 7 EHRR 528, para 44…

5.

Th[is] requirement…was affirmed by the Grand Chamber in Saadi v United Kingdom (2008) 47 EHRR 17. The case concerned article 5.1(f), which permits ‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. The Grand Chamber observed that, where the ‘lawfulness’ of detention was in issue, compliance with national law was necessary but not sufficient: article 5.1 laid down in addition the requirement that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It was… a fundamental principle that no detention which was arbitrary could be compatible with article 5.1: para 67. [The Grand Chamber in Saadi added at [69]....]

“…[D]etention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of article 5.1. There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.”

As Lord Reed added in Brown at [7], in relation to some of the other types of justification for deprivation of liberty in Art.5(1) (e.g. detention of children for education under Art.5(1)(d), or those lacking mental capacity under Art.5(1)(e)), there is an additional requirement of necessity and proportionality, but there was no such requirement with detention by a Court after conviction under Art.5(1)(a): only (i) compliance with domestic law; and (ii) ‘non-arbitrariness’. Nevertheless, as Lord Reed in Brown went on to explain at [8]-[45], detention even on a Court’s sentence after conviction could become ‘arbitrary’ under Art.5(1)(a) if an indeterminate sentence prisoner could not obtain their release because they had not been provided in prison with a ‘real opportunity for rehabilitation’ e.g. by courses and training, which had previously been applied to Life and IPP prisoners. In Brown at [62], Lord Reed also applied the same principle to EDS prisoners who had been recalled and detained during their period of extended licence.

However, in Brown, Lord Reed had explained that Art.5 ECHR draws a distinction for extended sentence prisoners between ‘deprivations of liberty’ under the original custodial term and on recall under the extended licence. Lord Reed explained at [58] and [61] that whilst extended prisoners were held (or recalled) on their original custodial term set by the Court, like determinate prisoners, they remain on their original Court sentence which incorporated right of access to a Court under Art.5(4) ECHR and so there was no need for separate judicial supervision of their detention. However, Lord Reed explained detention on recall was different at [61]:

“[T]he fact that the prisoner’s detention during the extension period has not been ordered by a court, but depends on recall by the…Minister….means that it must be supervised by a judicial body. That consequence also flows from the fact that the lawfulness of detention during the extension period, for the purposes of Art 5.1(a)…depends on whether or not the prisoner ceases to present a risk to the public of serious harm. That is not a matter which was determined by the original sentence of the court. It depends on factors which are ‘susceptible to change with the passage of time, namely mental instability and dangerousness’…Judicial supervision of detention during the extension period is therefore necessary under Art.5(4)…The requirement of judicial supervision is met by the provision made…for reviews by the Board…”

Whilst detention on recall could be conveniently summarised as a ‘separate deprivation of liberty’ under Art.5(1), strictly Lord Reed explained that it can still be justified by the original sentence under Art.5(1)(a) ECHR provided that there is fresh judicial supervision under Art.5(4) – by the Parole Board – of ‘whether or not the prisoner ceases to present a risk to the public of serious harm’. That is what the Parole Board decides when the Defendant refers a recalled prisoner to it under s.255C CJA. Under s.255C(4A), the Parole Board cannot direct release unless ‘it is satisfied that it is not necessary for the protection of the public that P should remain in prison’; and subject to the mechanism of reconsideration introduced in 2022, the Defendant must give effect to that decision under s.255C(5) CJA. (I should add that since reconsideration is also a matter for the Parole Board itself, there is no violation of Art.5(4) ECHR in such reconsideration: R(Huxtable) v SSJ [2021] 1 WLR 1569 (HC)).

Moreover, whilst the Parole Board’s main task with a recalled prisoner is determining that release decision, it also reviews the decision to recall itself, as explained in R(Gulliver) v Parole Board [2008] 1 WLR 1116 (CA) at a time when there was a direction by the Defendant requiring it to do so; and then in R(Calder) v SSJ [2015] EWCA Civ 1050, by which time that direction had been rescinded, although Lord Thomas LCJ considered the analysis in R(Gulliver) remained valid as it was based on the statute, not the direction (see R(Calder) at [41]-[42]). Lord Thomas summarised the point in R(Calder) at [40] and [45]:

“….[I]n R(Gulliver) Sir Igor Judge PQBD…emphasised at [43]-[44]…the supervisory responsibility of the Parole Board over the Secretary of State’s original [recall] decision and the process that led to it, in addition to making the recommendation on release. He [said]: ‘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 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…”

However, the Parole Board is not the only Art.5(4) ECHR judicial supervision of detention after recall of an EDS prisoner. In Rainey, the claimant was a child sex offender EDS prisoner recalled on licence only hours after release as it was discovered he had taken drugs. The Northern Irish statutory provision (Art.28(6) of a 2008 Order) is similar to s.255C(4A) CJA. There was an oral hearing at the Parole Board which criticised the recall, but did not recommend release and the claimant sought judicial review but that was dismissed, as was his appeal. In doing so, Treacy LJ said at [113]-[114]:

“While the Parole Board does have a power and a duty to consider and to make findings in relation to the recall decision (and did so in this case), it does not have the power required by Art.5(4) to release the prisoner solely on the basis that it finds flaws in that decision. The judicial supervision…required by Article 5(4) is provided for by the High Court through judicial review or, in appropriate cases, habeas corpus. Due to the availability of these other means to challenge the lawfulness of detention, Article 28(6)(a) is not incompatible with Article 5(4).”

Moreover, in Rainey, Treacy LJ had emphasised the difficulty of challenging a recall decision generally:

This caution in scrutiny of a recall decision is reflected in the two-stage test for lawfulness of recall for alleged breach of licence conditions set out in R(Calder) at [20]-[29] by Lord Thomas, that can be summarised as:

On the first stage – ‘reasonable grounds to conclude breach’, the issue is not whether the offender in fact breached the licence condition on the Court’s finding of fact, but whether Probation reasonably concluded that he had done so. Since R(Calder) was a Judicial Review case, ‘reasonableness’ is on the usual Wednesbury standard, not in the Court’s own objective judgment. Even if not an abuse of process to challenge recall through a private law claim (as considered below), that first-stage test cannot be any different than in Judicial Review. Moreover, in assessing the reasonableness of the Probation conclusion of breach, the Court should have respect for the expertise of Probation in such matters and the fact their decision may have been taken urgently on incomplete information, as explained in Rainey at [111]. Moreover, where the Parole Board have considered the facts of recall and held it ‘appropriate’, that will lend weight to the reasonableness of Probation’s initial decision (or vice-versa). Whilst on a strike-out application I must assume in the Claimants’ favour that in fact they did not breach their additional licence conditions, that does not mean they can cross the ‘very high hurdle’ Treacy LJ in Rainey described of showing Probation’s conclusion that they did breach them was unreasonable.

Moreover, also on the first stage of the R(Calder) test, as the Defendant originally pleaded, there is also an issue in this case (as there often will be) of whether recall was justified for breach of the standard condition ‘to be of good behaviour’. Iin R(Calder) Lord Thomas LCJ said at [23] that ‘good behaviour’ should be given its usual meaning:

“It is not necessary…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 judicial exegesis.”

There was no suggestion from Lord Thomas in R(Calder) the ‘good behaviour condition’ was too imprecise or breached the ECHR as the Claimants here suggest. They rely on the ECtHR case Hashman v UK (2000) 30 EHRR 241. However, in Hashman the old Common Law order in a Magistrates Court of ‘Binding Over to Keep the Peace’ was held to violate the Art.10 ECHR Freedom of Expression of hunt saboteurs. It is totally dissimilar to this case, where the ‘good behaviour’ licence condition has explicit statutory authority, so is ‘in accordance with the law’ under all relevant articles of the ECHR. Indeed, in R(Gul), Beatson LJ said at [63] that a provision may be regarded as a ‘law’ for the ECHR if ‘a person is able, if needs be with appropriate advice, reasonably to foresee the consequences of particular conduct’. That is clearly met by the ‘good behaviour condition’ which was upheld as lawful in R(Calder). I reject the challenge in principle to the lawfulness of the ‘good behaviour’ condition, as well as the challenges to the lawfulness of the additional licence conditions.

However, even if the first stage is met, a recall can still be unlawful if the second stage of ‘necessity’ is not met, which was elaborated by Lord Thomas LCJ in R(Calder) at [27]:

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

“…[T]he mere fact…a prisoner released on licence is in breach of licence or reasonably believed to be in breach does not mean that recall must automatically be ordered. Of course, in many cases, there may be no difficulty in concluding 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 went on to say almost invariably there would have to be consideration of two specific sub-issues: 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.”

In R(Calder), Lord Thomas found at [28] that recall was objectively necessary because the breach there was intentional and risked the public, hardly surprising with the plan to commit gang-related violence in that case. Once again, on the second stage, not only should the Court have some respect for Probation’s expertise in assessing the necessity of recall but also for a conclusion of the Parole Board that recall was ‘appropriate’. It seems to me the Court should be extremely cautious before disagreeing with such concurrent expert conclusions, especially given the importance of the Parole Board’s role and analysis as explained in R(Calder) discussed below.

However, as explained in Brown as noted above, even if the recall was compliant with domestic law, detention following recall could be or become ‘arbitrary’ under Art.5 ECHR, for example if there was bad faith or deception in the recall, or it did not genuinely conform with the purpose of detention under the Court’s original sentence (in the context of recall of EDS prisoners, as Lord Reed said in Brown, if detention was or became unnecessary to protect the public as the Parole Board considers), or that even if the recall was justified, ongoing detention becomes arbitrary because there is ‘no real opportunity for rehabilitation’. That was the issue in Brown itself, where a Scottish extended prisoner was justifiably recalled for a new offence on licence, but then was not released before the end of the extension period. After his release, he claimed damages under s.7 HRA and that his detention had become ‘arbitrary’ under Art.5 before his release by the lack of the real opportunity for rehabilitation, though that was rejected on the facts, which the Supreme Court upheld on appeal. Whilst I have not found any cases about it, as recall and detention unquestionably ‘interfere with private life’ under Art.8(1) ECHR, such detention could also violate Art.8, although it is difficult to envisage circumstances where it would do so if it is ‘in accordance with domestic law’ under Art.8(2) and not ‘arbitrary’ under Art.5 ECHR, which is likely to mean that it is ‘necessary’ under Art.8(2) ECHR, but strictly it is analytically separate.

In Mr Nwagwu’s case, whilst at the time of my draft judgment I did not know his recall had been considered by the Parole Board, the further documents provided at the hearing on 31^st October show the Parole Board found his recall was appropriate specifically referencing R(Calder). Mr Rahman also relies on Mr Nwagwu’s solicitors’ representations to the Board accepting that. Mr Nwagwu disputes he agreed to that and there is no need for me to rely on that point, because in my judgment, any challenge to Mr Nwagwu’s recall, as pleaded or if amended to rely on the R(Calder) test, would be bound to fail for the following alternative reasons:

Turning to Mr Taylor’s case, unlike Mr Nwagwu, he did not abscond so his claim for unlawful recall at Common Law or under the ECHR stands or falls with the reasonableness of Probation’s breach conclusion and the necessity of recall for it. Moreover, whilst the Parole Board recorded him as having admitted the breach, he disputes this; and on a strike-out application, it is preferable not to rely on a disputed admission. Nevertheless, in my judgment, Mr Taylor’s recall claim is also bound to fail for the following alternative reasons, whether as originally pleaded or as amended to rely on domestic law and R(Calder) which is not currently pleaded:

Therefore, the claims for unlawful recall as pleaded are - or as could be amended would be - bound to fail and should be struck out under CPR 3.4(2)(a). For good measure, the other problem with the claims for violation of Arts.5 and 8 ECHR is that they were issued well outside the 12-month time limit under s.7 HRA and there is no good reason to extend time, especially as the recall decisions were reviewed within that period by the Parole Board and not challenged by Judicial Review by either Claimant. That also leads on to the question of strike out for abuse of process under CPR 3.4(2)(b), even though it is academic given my decision on (2)(a).

In those circumstances, I can deal more briefly with the abuse of process argument. Mr Rahman argues the claims should have been brought in Judicial Review, with its shorter time-limit and a requirement for permission since presenting a public law claim as a private law one can be an abuse of process as discussed in O’Reilly v Mackman [1983] 2 AC 237 (HL). However, claims for damages for unlawful detention are often dealt with in the King’s Bench Division or County Court, as Dingemans LJ explained in R(ZA Pakistan) v SSHD [2020] EWCA Civ 146 at [72]-[74]:

“[O]nce the appellant had been released from detention both parties should have addressed their minds to the issue of whether the claim should have been transferred either to the Queen’s Bench Division or the County Court. There would also have been many advantages in such a transfer for both [parties]. So far as the Appellant is concerned there would have been no need to obtain permission to bring the claim, and there were contested issues about the grant of permission to apply for judicial review in this case, because there would have been unfettered access to the Queen’s Bench Division or County Court. There would have been a process for calling witnesses and for cross examination. This would have meant that the Appellant could give oral evidence in support of his case … As it was the judge rejected this evidence contained in a witness statement without hearing the claimant cross- examined because of the inconsistency of his evidence with the contemporaneous notes of the examination….A transfer to the Queen’s Bench Division or County Court would also have made matters easier for the trial judge who would have had the benefit of assessing what had happened after hearing live evidence…It is hoped that in the future all parties should give timely consideration to the issue of transfer from the Administrative Court when, as often happens in these cases, issues of continuing detention have been resolved.”

Nevertheless, as Mr Rahman noted, R(ZA) was talking about claims for unlawful detention that started out in Judicial Review being transferred to the Civil Courts after a prisoner’s release. The same is true of the claim for damages for delay in convening a Parole Board hearing (such as Mr Truter is currently pursuing) in R(Roach) v Parole Board [2011] EWHC 2535 (Admin). Both R(ZA) and R(Roche) were only transferred from the Administrative Court to the Queen’s Bench or County Court after the claimants had claimed Judicial Review but then been released from the detention that they claimed was unlawful, so the only issue was damages.

The question here is whether it is an abuse of process to start a private law claim in the Civil Courts alleging unlawful recall without any claim for Judicial Review. If there is no public law element to the claim at all (e.g. if detention were admittedly unlawful and the only live issue is damages), then there is no barrier to a private law claim: Steed v SSHD [2000] 1 WLR 1169 (HL). Even if legality of recall were contested, if there had been no prior judicial adjudication of that by a Court or the Parole Board and the only remedy sought is damages for a released recalled prisoner, it follows from R(ZA) and R(Roach) that a claimant would not need to claim Judicial Review first – indeed it is unavailable for a claim purely for damages: CPR 54.3(2). The private law claim could be for False Imprisonment at Common Law as in Jalloh and/or under s.7 HRA and Art.5 ECHR: Art.5(5) ECHR gives a right to bring to Court a claim for compensation. Indeed, it is possible such a claim could be brought by a prisoner now serving a different sentence which is not challenged. But I can see fundamental conceptual difficulties with a prisoner seeking only damages for detention after recall which they are still serving. For example, unless the detention itself is declared unlawful, there would be no causation: R(Lumba), but that would mean compensating someone for a sentence which they are still continuing to serve. This complicated scenario is in my mind is avoided by the principle of abuse of process for the presentation of an essentially public law claim as a private law one, as criticised in O’Reilly which remains valid despite being relaxed in other ways since, e.g. in Steed.

Moreover, the issue of abuse of process is also inter-related to the review of recall and detention by the Parole Board. The Courts have considered whether permission for Judicial Review should be refused because recall can be challenged in the Parole Board and whether that is an ‘alternative remedy’ to Judicial Review. As Lord Thomas said in R(Calder):

“47.

In R(Gulliver), Lord Judge LCJ also said at [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 the Parole Board may not be able to provide an adequate or sufficient remedy. If so, it will deal with the application…..

49.

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. [The Administrative 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.

50.

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.”

This discussion was taken further by Treacy LJ in Rainey:

“109.

The prisoner continues to be lawfully detained until either a) a Judicial Review court quashes the recall decision or b) the Parole Board decides it is no longer necessary for the protection of the public the prisoner be detained. In appropriate cases the Judicial Review court can act urgently. In appropriate (though necessarily rare and exceptional) cases, a remedy may be available in habeas corpus or by injunction….

110…[T]here are a number of possible outcomes in those exceptional cases where a recall is found to be unlawful (bearing in mind the very extensive discretion of the decision-maker and the very high standard of review that will be applied). a. The Judicial Review is concluded before the Parole Board hearing and finds the recall was unlawful. The Court can quash the order and either remit the decision to be re-taken or immediately release the prisoner. b. The Judicial Review is concluded after the Parole Board hearing and finds that the recall was unlawful, but the Parole Board has found that the test at Article 28(6)(a) is not met and the prisoner has been released. The remedy for the unlawful detention will be damages. c. The Judicial Review is concluded after the Parole Board hearing and finds that the recall was unlawful in circumstances where the Parole Board has found that the test at Article 28(6)(a) has been met and the prisoner has not been released. The decision of the Parole Board will have rendered the continued detention of the Prisoner lawful and again, the remedy for the unlawful detention will be damages.”

However, here the position is one further step removed from what was being discussed in R(Calder) and Rainey, because not only has there been a Parole Board determination that recall was appropriate, there has not been any Judicial Review claim. Cause of action and issue estoppel do not apply to a Parole Board decision and are debateable in public law generally (see on the latter R(DN Rwanda) v SSHD [2020] 2 WLR 611 (SC)). But as explained in Johnson v Gore Wood [2002] 2 AC 1 (HL), in private law claims ‘abuse of process’ is more flexible than such estoppels and could apply to an attempt to relitigate a point which has already been determined, or which could have been but was not challenged. This overlaps with the other species of ‘abuse of process’ where an essentially public law claim is brought in private law, sidestepping the time limit and requirement for permission in Judicial Review claims: O’Reilly. In my judgment, whilst some claims for damages for unlawful recall can sometimes be brought from the start in private law as discussed, where a Parole Board has determined recall is appropriate and that has not been challenged in Judicial Review, an attempt to challenge that recall decision later by a private law claim which is really based on public law may well be an abuse of process for the reasons explained in O’Reilly: especially if brought outside the Judicial Review time limit of 3 months under CPR 54.5 In my view, that is the position here, because both Claimants not only seek release as well as damages for unlawful recall, their claims – brought well over a year after their recall and so out of time even under s.7 HRA let alone Judicial Review - turn on public law not private law; and they could and should have brought Judicial Review claims earlier. Therefore, even if I am wrong that unlawful recall claims are bound to fail on the merits anyway, I would still strike them out under CPR 3.4 as an abuse of process.

For those reasons, all the Claimants’ presently-pleaded claims in their Particulars of Claim and subject to actual or potential amendment application, are bound to fail and/or are an abuse of process. I therefore strike out the Claimants’ Particulars of Claim under CPR 3.4(2) and refuse permission to amend their claims (save in the respect discussed below). As the Claimants knew at the hearing on 31^st October that I had reached that view on all matters in my draft judgment except the unlawful recall claims just discussed (or on Mr Taylor’s DPA claim at that hearing), they prepared a written ‘response to my draft judgment’ for the hearing on 14^th November. Whilst new points should not generally be raised in response to a draft judgment, I have considered them as the Claimants were unrepresented and given the significance of the issue for them and other EDS prisoners. I have addressed them in this finalised judgment at paragraph 40 on the interpretation of the language of ss.250(5A)-(5C) CJA and paragraph 45 on the ‘lacuna’ and ‘absurdity’ arguments. I have also taken into account those written and oral representations on 14^th November in my conclusions on Art.5 ECHR at paragraphs 54 and 63 and on Mr Taylor’s DPA claim at paragraph 67. For those reasons and the others given in this judgment, I do not consider my conclusions are arguably wrong on the interpretation issue, the lawfulness of the imposition of the additional conditions, or the DPA claims; and at the hearing on 14^th November, having heard further submissions I refused permission to appeal on all those points. At that hearing, I also heard further submissions on the unlawful recall claims both as pleaded and potentially amended to rely on R(Calder), but also struck those out and refused amendment for the reasons to be given in this judgment which I summarised. The Claimants did not seek permission to appeal that aspect, on the basis that I accepted that if the Court of Appeal decided my decision on the interpretation issue was wrong, my strike-out of the claims dependant on the (un)lawfulness of the additional licence conditions must also be set aside. That does not necessarily apply to the unlawful recall claims as I have said, but that would depend on what the Court of Appeal were to decide. I have considered carefully whether I should grant permission to appeal on the interpretation issue, because the Defendant initially took a different view of the provisions and so it might be thought my conclusion may be arguably wrong. However, I hope I have considered it in detail and on a ‘holistic basis’ and for those reasons I do not consider my decision is arguably wrong despite the Defendant’s initial error. Clearly the Court of Appeal may take a different view, as it may about whether there is some other compelling reason to grant permission to appeal on the interpretation issue – e.g. because of the impact on other EDS prisoners. However, I am not aware this issue has been otherwise litigated and so the Court of Appeal is in a better position to assess that issue. For all those reasons, I refuse permission to appeal, although because of the time of year and practical difficulties for the Claimants, I extend time to appeal to 31^st January 2026.

On that subject, the Claimants told me that they have difficulty accessing word processors in the prison, including those they have privately bought. I have no information from the prison about that and I can see the Claimants as convicted sex offenders should have restricted access to internet-enabled devices (which is what prompted their recalls), but I hope that any equipment that is not internet-accessible can be provided if appropriate. Nevertheless, this is relevant to the one further issue, which is whether to strike out the Claimants’ whole claims, rather than their current Particulars of Claim alone. Clearly, that would usually be done in this situation, but the Claimants have also sought to bring through these proceedings an entirely different type of claim arising from the seizures of their (and another prisoner’s) legal papers in the present claims from Mr Truter’s cell on 18^th July 2025 (and return to Mr Taylor but not Mr Nwagwu on 30^th July – indeed the prison disputes seizing Mr Nwagwu’s papers). I have separately given a judgment holding those claims are not an arguable Contempt of Court but are potentially arguable claims for breach of Prison Rule 39 and/or Art.8 ECHR under s.7 HRA. As Mr Rahman says, those claims are entirely unrelated to the present claims and should normally be started by separate Claim Form(s). However, where the Claimants are concerned that they will be unable to access the online portal for new County Court claims, or open a new CE-File claim in the High Court, I accept it is permissible for them to use the existing claim numbers in the present claims to bring those new claims (which are admittedly in time). For that pragmatic reason only, my order is to strike out the current Particulars of Claim, not strike out the claims as such, which I permit to be amended to reflect the new claims in the form of the amendments provided on 14^th November, or if the Claimants are able to do so, entirely new Claim Forms and Particulars of Claim. There will then need to be Defences and further case management, which I reserve to myself for now. Therefore, whilst there can be no doubt the Claimants even as prisoners should in principle pay the Defendants’ costs of the struck-out claims, as their more limited cell search claims are continuing, I will order there be no enforcement of the costs except with the permission of the Court (when I could also consider the point that the Defendant changed its position on the licence conditions). In those circumstances, I will not assess costs at this stage, indeed, I was not provided with costs schedules to do so. That concludes my judgment, save only to thank Mr Rahman and those that instruct him for their skilful and conspicuously fair presentation of the case; and Mr Truter for his invaluable help for the Claimants.