England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATIONS FOR PERMISSION TO APPEAL
THE DECISION TO REFUSE PERMISSION TO
CLAIM FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand London WC2 Thursday, 11th October 2001

1. LORD JUSTICE SEDLEY: This is an application made in person by Mr Crosby, who is now a free man, for permission to seek judicial review against the Home Secretary. He was refused by a two judge Divisional Court - Lord Justice Rose and Mr Justice Silber - on 11th June 2001. It is against that refusal that he wants permission to appeal.

2. Mr Crosby had completed the custodial part of a five-year sentence which had been imposed on him at trial and upheld by the Court of Appeal. One of the elements of the review which he seeks is the propriety of that sentence. That however is not and cannot possibly be a matter for judicial review. If the sentence was inappropriate it was for the Court of Appeal to say so. What the Court of Appeal in fact said in its decision of 3rd November 1997 was that the sentence was a lawful one and that what made its extent lawful was the operation of Section 2 (2) (b) of the Criminal Justice Act 1991. It is so clearly explained in MrsJustice Hale's reasons for the Court of Appeal's decision, which I have seen in transcript, that there is no need for me to add anything to them.
3. The other limb of this application concerns the recall of Mr Crosby to prison for breach of his parole licence under Section 39 of the Criminal Justice Act 1991. Having been liberated on terms on parole, Mr Crosby found himself recalled to prison. I do notin any way underestimate the distress that a "knockback" of this kind will create in someone who has provisional liberty.
4. Mr Crosby's case is that the Home Secretary's reasons for recalling him to prison were factually false. The conditions on which he was paroled were that he should be of good behaviour and should not conduct himself in any way which would jeopardise the objectives of his supervision. Those are standard terms. The breaches alleged by the Home Secretary - and it is perfectly right that at this time the Home Secretary was the judge as well as the accuser in relation to matters of this kind - were that he had broken the rules of the hostel to which he had been discharged, that he had consequently been given notice to quit, that the reason for this was that he had changed from income support to job seekers' allowance, that he had consequently run up rent arrears and that in this situation he had moved from the hostel without giving his supervising officer notice of the move or of his new address.
5. That alleged history was translated into four specific allegations: first, failure to abide by the rules of the hostel; second, failing to live or continue to live at a notified and approved address; third, failing to co-operate with staff in order to address his offending behaviour and, fourth, writing abusive letters to hostel staff.
6. The challenge Mr Crosby wants to bring is as to the factuality of these matters held against him. He says, and has always said, that he did tell the probation officer about his intention to move, that he was then deliberately undermined by the probation officer telling his landlady about the reason for his conviction and thereby, in effect, getting him expelled. He also says that he was not in rent arrears and that he was not writing abusive letters but merely stating his factual position.
7. The difficulty which Mr Crosby faces, and the Divisional Court's decision made this clear to him, is that neither the factuality nor the seriousness of these allegations is a question of law. They are a matter for the Home Secretary, or were at that time (they would now be a matter for the Parole Board as well), subject only to this, that in law there has to be some tenable basis for the allegations and they must be relevant to the question of recall. It is clear from what Mr Crosby has told the court in the documents which have been provided by him that there was, without any doubt, such a relevant basis for recall. It lay principally in what the supervising probation officer had reported. Of course Mr Crosby disputes the factuality of those allegations, but provided that he was given fair notice of them and a chance to answer, and he does not suggest he was denied that, what to make of the allegations was at that time a matter solely for the Home Secretary. The Home Secretary decided them adversely to Mr Crosby and recalled him to prison.
8. Lord Justice Rose in the Divisional Court spelt out in some detail the reasons why it could not be said that the revocation of Mr Crosby's licence, contentious though it was, was legally flawed. Try as I may, I cannot see any ground for a potentially successful appeal to the Court of Appeal against that conclusion. It cannot be said that the Divisional Court got it wrong. On the contrary, I have to say that any court of law, at whatever level, looking at these issues would inexorably come to the same conclusion.
9. That conclusion, which I hope I have explained, makes it inevitable that permission to appeal must be refused in this case.
10. Mr Crosby, thank you for your courtesy and for your preparation of the papers.
Order: Applications refused