Guidance, in cases of recall to prison from a release on licence, as to the inter-relationship between available challenges by way of judicial review and review by the Parole Board

The Court of Appeal gave guidance, inter alia, when in a reserved judgment dismissing the appeal of the claimant, Terence Calder, from a decision of Judge Gore QC, sitting as a deputy judge of the Queen’s Bench Division in the Administrative Court on 31 October 2014 [2014] EWHC 4138 (Admin), dismissing his challenge by way of judicial review of the lawfulness of his recall to prison under section 254 of the Criminal Justice Act 2003.

The claimant was released on licence after serving one half of the custodial term of an extended sentence for public protection passed on him on 12 February 2009. He was recalled following a finding that he had breached the terms of the licence. The grounds of appeal were that: (i) there was insufficient evidence of a breach of his licence conditions to justify a recall; (ii) the reasons given for his recall were inadequate; and (iii) the judge had been wrong in concluding that there was an alternative remedy in the Parole Board’s scrutiny of the initial decision of the Secretary of State to recall the claimant and in their decision on his release.

LORD THOMAS OF CYMGIEDD CJ, dismissing the appeal, said that there were two conditions which the Secretary of State had to satisfy to establish the lawfulness of the decision to recall: (i) there were to be reasonable grounds for concluding that there was a breach of the licence conditions; and (ii) it was necessary to recall the claimant. The reasonable grounds test as adumbrated in Gulliver v Parole Board [2008] 1 WLR 1116 was satisfied on the facts. It was not necessary to add a gloss to the words of the condition: the term “well behaved” and the wording “not to do anything which would undermine the purposes of your supervision which are to protect the public, prevent you from reoffending and help you to resettle successfully into the community” were sufficient in themselves not to require further judicial exegesis: the exegesis suggested in R(McDonagh) v Secretary of State for Justice [2010] EWHC 369 (Admin) at [28] was not necessary. As to necessity to recall, in R (Jorgenson) v Secretary of State for Justice [2011] EWHC 977 (Admin) at [16] Silber J had concluded that it was not every breach of a licence which would justify a decision to recall an offender, but that almost invariably there would have to be consideration of two specific sub-issues, viz: (i) whether the offender had acted intentionally in breach of his licence conditions; and (ii) whether the safety of the public would be at risk if the offender remained out on licence. Those tests had been satisfied on the facts. The decision to recall was therefore not ultra vires.

The court added that it had been submitted that at the time of the Gulliver decision the court was relying upon the then current 2005 Directions issued by the Secretary of State which permitted the Parole Board to review the recall decision, but that those Directions had since been amended by Directions issued in 2009 under which the Parole Board no longer had such power. However, the court in the Gulliver case had been not relying upon the Directions but upon the statutory provision itself, so that the case remained applicable to the present case, and the original recall decision could be reviewed where the Parole Board had both a power and a duty to consider the decision on recall. It was an important and necessary duty.

As to the effect of the power on the jurisdiction of the Administrative Court, an important duty of the court was to review cases concerning the liberty of the subject and it was unlikely that the court would be overburdened if applications by recalled prisoners to review the lawfulness of the recall were permissible in proper circumstances. The views expressed in the Gulliver decision as to the statutory responsibility of the Parole Board to examine the original decision were right and there was 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 would be decided in due course by the Parole Board. A court would consider all the circumstances including the timescale within which the issue would 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 had to meet to establish the lawfulness of the recall. The question of the alternative remedy was therefore a question generally for consideration at the permission stage. Once permission was granted, bearing in mind the duty of the court to protect the liberty of the subject and determine for itself issues of liberty, it was unlikely generally to be a factor of material weight at the hearing of the judicial review.

DAVIS and HALLETT LJJ agreed.