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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Calder, R (on the application of) v Secretary of State for Justice [2015] EWCA Civ 1050 (15 October 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1050.html Cite as: [2015] EWCA Civ 1050, [2015] WLR(D) 418 |
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ON APPEAL FROM THE ADMINISTRATIVE COURT, MANCHESTER
HH Judge GORE, Sitting as a Deputy Judge of the High Court
Strand, London, WC2A 2LL |
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B e f o r e :
THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(LADY JUSTICE HALLETT)
and
LORD JUSTICE DAVIS
____________________
R (On the Application of Calder) |
Appellant |
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- and - |
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Secretary of State for Justice |
Respondent |
____________________
Charles Banner (instructed by Government Legal Department) for the Respondent
Hearing date: 21 July 2015
____________________
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ:
Introduction
The claimant's background and the offence for which he was sentenced.
"be well behaved, not commit any offence and not to do anything which could undermine the purposes of your supervision which are to protect the public, prevent you from re-offending and help you resettle successfully into the community."
"It should be noted that his previous Offender Manager, Debra Kaur, commented on delius contact on 2 July 2013 that a home visit conducted that day to his new address raised some concerns – as quoted: 'This was a massive new detached house and there were 2 cars on the drive, one of which was a VW 4 x 4, which his partner, Sarah said was her dad's. I asked Terry about how much he earns and he said that it was between £400 and £500 per month. Asked him about how much the rent was on the house – he stated it was only £700. This seems highly unlikely given the size of the house and the quality of the property which was very lavishly decorated. His partner, Sarah does not work but said she gets about £400 family tax credits per month. They have 2 children to support and it does not seem feasible that their lifestyle can be funded by Terry's supposed wage.' I understand from further delius contacts that Mr Calder was defensive when he was asked about his financial situation and affordability of this property."
The revocation of the claimant's licence
"It would appear that is an immediate increased risk of violence which may be serious to others and therefore risk of serious harm has now been deemed Very High."
It was on the basis of the revised report, which included the information I have set out at paragraph 6 above, that the claimant was recalled to prison.
The proceedings for judicial review
Issue 1: Was the Secretary of State entitled to conclude on the evidence available that the applicant was in breach of his licence conditions?
(a) The powers of the Secretary of State
"(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1)—
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.
(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large."
(b) The requirement that there are reasonable grounds for concluding there was a breach of licence conditions
(b) The requirement that it was necessary to recall the claimant
"In my view, in every case where the Secretary of State could reasonably conclude there has been a breach, he or she must then proceed to consider as an important free-standing separate issue, which is what steps should be taken to deal with this breach. In other words, the mere fact that a prisoner released on licence is in breach of his her licence or is reasonably believed to be in breach does not mean that recall must automatically be ordered. Of course, in many cases there will be no difficulty in concluding that the Secretary of State was entitled to order recall such as where the licensee has committed identical offences to those for which he was originally sentenced."
He then went on to say that almost invariably there would have to be consideration of two specific sub-issues, namely whether the offender had acted intentionally in breach of his or her licence conditions and whether the safety of the public would be at risk if the offender remained out on licence.
Issue 2: Were the reasons given by the Secretary of State adequate?
Issue 3: Was the judge was wrong in concluding the Parole Board would scrutinise the initial recall decision and therefore wrong in relying on that as an alternative remedy?
(a) The contentions of the parties
(b) The statutory provisions
"Where on a reference under subsection (4), the Board directs [the recalled prisoner's] immediate release on licence under this Chapter, the Secretary of State must give effect to the direction"
"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."
"The key function of the Board is to asses risk rather than to focus on the circumstances of the recall. That was the position under the previous legislation (see Gulliver at paragraph 35 of the judgment of Sir Anthony Clarke MR and paragraphs 43 to 44 of the judgment of Sir Igor Judge PQBD)."
It is clear from the whole of the judgment of Kenneth Parker J that he was emphasising the focus of the task of the Parole Board and the relevance of the decision to recall to that task. The challenge before him was a challenge to a decision which refused to recommend release and to a refusal to hold an oral hearing for that purpose. He was not saying that the Parole Board had no power or duty to review the recall decision.
"The Parole Board does not determine whether the recall to custody was justified but must consider whether the prisoner should remain in prison for the protection of the public."
The Parole Board was not represented before us, but the view it has expressed is inconsistent with the law as set out by this court in Gulliver.
(c) The effect of the power on the jurisdiction of the Administrative Court
"The second point is whether, and in what circumstances, a decision by the Secretary of State to recall a prisoner can be challenged by way of judicial review. It is not necessary for us to resolve this issue in this appeal, since this is not a challenge to the decision of the Secretary of State but a challenge to the decision of the Parole Board. As I see it, there may be exceptional cases in which it might be appropriate to apply for judicial review, but they will be few and far between."
"There may, of course, be exceptional cases where the revocation decision process is so subverted that the prisoner may seek a different or separate remedy, by way of judicial review or, indeed, habeas corpus. In such cases the court may be satisfied that the Parole Board may not be able to provide an adequate or sufficient remedy. If so, it will deal with the application accordingly."
Conclusion
Lord Justice Davis:
Lady Justice Hallett: