England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE KNIGHT QC)

		Royal Courts of Justice Strand London, WC2
		29 November 2005

SIR ANTHONY CLARKE:

Introduction

1. This is an appeal against an order made by His Honour Judge Knight QC on 9 August 2004, in which he struck out the appellant's claim against the Secretary of State for the Home Department ("the Secretary of State") for false imprisonment and breach of his rights under Article 5 of the European Convention on Human Rights ("the Convention") and entered summary judgment in favour of the Secretary of State on the entire claim. The appeal is brought pursuant to permission granted by Field J.

The facts

2. The facts are, at any rate for present purposes, not in dispute. On 30 March 2001 the appellant was sentenced to 18 months' imprisonment. He was released in January 2002. He may have had a right to release under the automatic early release provisions but, whether that is so or not, he was released on licence. He was subsequently recalled to prison when he failed to keep in touch with his probation officer as required by one of the conditions of his licence.
3. On 3 May 2002 he was again released on licence. The licence included a condition that he must keep in touch with his supervising officer in accordance with any reasonable instructions that he might from time to time be given. The consequences of a breach of the licence conditions were spelled out in the licence.
4. On 28 May and 25 June 2002 he failed to attend appointments with his probation officer. He says that his failure to do so was due to "employment difficulties". He did not, however, inform his probation officer at the time of the reason he did not attend. Indeed he did not do so, it appears, until about 12 July. On 1 July the Probation Service completed a licence revocation request. The request was based on the appellant's failure to attend the appointments.
5. On 4 July the Parole Board considered the request and recommended the appellant's recall to prison. On the same date the appellant's licence was revoked by the Secretary of State under section 39 of the Criminal Justice Act 1991 ("the 1991 Act"). The reasons attached to the revocation order were as follows:

"You have been recalled to prison because you breached condition 5(1) of your licence in the following ways:

It has been reported by the London Probation Service that you have failed to keep in touch with your supervising officer in accordance with any reasonable instructions that you may from time to time be given, in that, despite being issued with a warning letter for failing to report to your supervising officer on the day of your release as instructed, you missed two appointments with your supervising officer on 28 May 2002 and 25 June 2002.

In view of the offences for which you were originally sentenced and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."

Also on the same date Mr Anthony Sparrow of the Sentence Enforcement Unit in the Prison Service, which was responsible for the appellant, wrote to the Probation Service informing them of the revocation of the licence and adding, among other things that:

"If at any time the Probation Service receives information that may affect the validity of the recall action it is important that the sentence enforcement unit is informed as soon as possible."

6. Paragraphs 3.7 to 3.10 of the particulars of claim put the appellant's case in this way:

"3.7 On or about 12 July 2002 the Claimant provided his probation officer with documentation that showed that he had a good excuse for failing to attend the two missed appointments.

3.8 On the same date the Claimant's probation officer faxed the Sentence Enforcement Unit to inform them that she wished to have the recall rescinded.

3.9 On 19 July 2002 the Claimant's probation officer telephoned the Sentence Enforcement Unit to repeat the request to have the recall rescinded. She was informed that this was not possible and that the Claimant should be advised to 'hand himself in'.

3.10 The Claimant's probation officer continued to supervise the Claimant. In early September 2002 she completed a final review of the Claimant's supervision plan. This congratulated the Claimant on successfully completing his licence. It also confirmed that the Claimant had produced evidence from his employers explaining his failure to attend appointments."

Those paragraphs were admitted in the defence.

7. We were shown the fax referred to in paragraph 3.8 of the particulars of claim, which was in these terms:

"I understand that a recall warrant has been issued in respect of the above offender's breach of ACR licence.

I have now received written verification for his absences on 28/5.02 and 25/6/02 via his respective employers. I have also spoken to representatives to confirm this by telephone.

In view of this supporting verification, I would now ask that the recall warrant be revoked, to allow Mr Roberts to continue with his completion of his licence.

Given that a warrant is outstanding in this matter, I would be grateful if you could provide me with a reply to this request as soon as possible."

The appellant's licence would have expired on 9 September 2002 if it had not been revoked.

8. The appellant was detained on 26 September. He immediately made representations to the Parole Board against his recall. His probation officer wrote a letter submitting that he should not be recalled to prison because he had accounted for his failure to attend the two appointments. On 30 September the Parole Board recommended his release and he was released on 1 October.

The proceedings

9. The appellant issued proceedings in the Central London County Court claiming damages for false imprisonment both at common law and/or on the ground of an alleged breach of section 6 of the Human Rights Act 1998 by reason of an infringement of his rights under Article 5 of the Convention. The claim relates to the five-day period of detention between 26 September and 1 October 2002.
10. The Secretary of State applied for an order that the appellant's particulars of claim be struck out or alternatively that summary judgment be entered in the defendant's favour. The judge ordered that the Home Office be substituted as defendant, the appellant's particulars of claim be struck out, summary judgment be entered in the defendant's failure on the entire claim, the action be dismissed and permission to appeal be refused.
11. McKay J refused permission to appeal on paper. In respect of false imprisonment his reasons were these:

"Once the licence was revoked the statutory scheme contained in section 39 of the 1991 Act gave no discretion to rescind the revocation. The statute had a scheme for representations and possible release. Pending the operation of that scheme the detention was plainly lawful so that the judge was right."

In relation to the alleged infringement of Article 5 he said that the claim should have been made in the Administrative Court, that if the court gave permission a subsequent quashing order would not have rendered the detention unlawful and that in any event the judge was right to reject the claim for the reasons he gave. Subsequently, after an oral hearing Field J granted permission to appeal on the Article 5 point. He also said that, since the appellant raised a question of considerable importance, the appeal should be heard in this court.

12. Mr Southey made it clear to Field J that he was not seeking permission to appeal against the judge's decision that the appellant's detention was not unlawful under domestic law, but only against his decision that his detention did not infringe the appellant's rights under Article 5 of the Convention.
13. Mr Southey submitted that the appellant's detention on 26 September 2002 was arbitrary and thus contrary to Article 5. He submitted that there was an insufficient causal connection between the detention and the justification for it. In granting permission to appeal, Field J said that if the Secretary of State was provided with cogent reasons for concluding that a revocation of licence should not stand, it was distinctly arguable that any failure by him to reconsider the revocation with a view to avoiding the detention of the prisoner was a breach of Article 5, notwithstanding the mechanism provided in section 39 of the 1991 Act.

The appeal

14. The thrust of the appeal as advanced on the appellant's behalf by Mr Southey is essentially as it was put before Field J. It is that the detention of the appellant on 26 September was arbitrary because the Secretary of State should have reconsidered the revocation of the licence when he received the fax from the appellant's probation officer on 12 July (quoted above) and/or when he received the same information by telephone on 19 July. In particular, the probation officer should not have been told that it was not possible to have the recall rescinded and that the appellant should be told to hand himself in.
15. Mr Southey submits that on 12 or 19 July the Secretary of State was given information which showed that the appellant's licence should not have been revoked or, more specifically, that the revocation should now be rescinded and that he had both a power and a duty to rescind the revocation. He submits that it is at least arguable that the Secretary of State's failure to exercise that power or to discharge that duty led to the appellant's detention in September and that that detention was therefore an arbitrary exercise of power. He submits that it was therefore unlawful and an infringement of the appellant's rights under Article 5 of the Convention. He also submits that for the same reasons the decision was an arbitrary exercise of power under English domestic law, quite apart from the Convention, and thus unlawful. That is not, I think, the same point which had initially been advanced under domestic law before the judge and which is not now pursued. It can thus be seen that the argument advanced under Article 5 and the argument now advanced under domestic law are essentially the same.

The 1991 Act and the Convention

16. Section 39 of the 1991 Act provides, so far as relevant:

"(1) If recommended to do so by the Board in the case of a short-term or long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

(3) A person recalled to prison under subsection (1) or (2) above -

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4) The Secretary of State shall refer to the Board -

(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and

(b) the case of a person recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Board -

(a)...

(b) recommends in the case of any person, his immediate release on licence under this action, the Secretary of State shall give effect to the recommendation.

...

(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, shall be deemed to be unlawfully at large. High Court High Court.

Section 32(2) of the 1991 Act provides:

"It shall be the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners."

17. Section 38A of the 1991 Act, which relates to curfew conditions, provides, so far as relevant:

"(1) If it appears to the Secretary of State, as regards a person released on licence under section 34A(3) above -

(a) that he has failed to comply with the curfew condition

...

the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison;

(2) A person whose licence under section 34A(3) above is revoked under this section -

(a) may make representations in writing with respect to the revocation;

(b) on his return to prison, shall be informed of the reasons for the revocation and of his right to make representations.

(3) The Secretary of State, after considering any representations made under subsection 2(b) above or any other matters, may cancel a revocation under this section."

18. Article 5 of the Convention, which is entitled "Right to liberty and security" provides, so far as relevant:

"(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 ...

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

(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 the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

The correct approach

19. There have been a number of cases in which the courts have considered Article 5 of the Convention in the context of prisoners' release on licence. It is plain that Article 5 plays a potentially significant role in this area of the law. We were referred to a number of comparatively recent decisions, including the following: R v Governor Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19, R (Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC 1, R (Hindawi) v Secretary of State for the Home Department [2004] EWCA Civ 1309, [2005] 1 WLR 1102 and R (West) v The Parole Board [2005] UKHL 1, [2005] 1 WLR 350. It is not necessary to make extensive reference to these decisions because it was submitted by Mr Southey and accepted by Mr Johnson that under Article 5 of the Convention, and indeed section 39 of the 1991 Act, detention must not be arbitrary.
20. The general rule is as stated by Lord Hope in this way in the Giles case at paragraph 25:

"The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under article 5(1)(a), without the need for further reviews of detention under article 5(4): David Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed (2000), p 446. Article 5(1) is concerned with the question whether the detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation: Winterwerp v The Netherlands (1979) 2 EHRR 387, 402, para 37. The conviction does not have to be lawful in order to satisfy this requirement, but the detention must be. This means (i) that it must be lawful under domestic law, (ii) that it must conform to the general requirements of the Convention as to the quality of the law in question - its accessibility and the precision with which it is formulated and (iii) that it must not be arbitrary because, for example, it was resorted to in bad faith or was not proportionate: see R v Governor of Brockhill Prison, Ex P Evans (No 2) [2001] 2 AC 19, 38E and McLeod v United Kingdom (1998) 27 EHRR 493, 511, para. 41. Detention in accordance with a lawful sentence of imprisonment imposed by a judge on the prisoner for an offence of which he has been convicted satisfied these requirements."

21. I found the most helpful case to be West, where the House of Lords considered release on licence and focused on both section 39 and Article 5. The relevant part of the decision can be seen from the second holding in the headnote. The House of Lords held that in cases such as that with which the House was concerned, the sentence of the trial court satisfied Article 5(1) of the Convention not only in relation to the initial term served by the prisoner but also in relation to a licence revocation, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court; that, however, a decision by the Parole Board to revoke a licence had to comply with Article 5(4); but that the Board had the essential features of a court within the meaning of Article 5(4) and its review of the lawfulness of further detention would satisfy requirements provided that it was conducted in a manner that met the requirements of procedural fairness.
22. In paragraphs 22 to 26 of his speech, Lord Bingham summarised what he described in paragraph 22 as "certain uncontroversial but fundamental and relevant principles upon which the sentencing, licensing and recall regimes rest."

It is, I think, appropriate to set out paragraphs 25 and 26 of Lord Bingham's speech as follows:

"25. While, fourthly, it is true that early release provisions have the practical effect of relieving overcrowding in the prisons, that is not their penal justification. But such justification exists. All, or almost all, determinate sentence prisoners are expected to return to the community on release from prison after serving their sentences. It is in the interests of society that they should, after release, live law-abiding, orderly and useful lives. For a host of practical, psychological and social reasons, the process of transition from custody to freedom is often very difficult for the prisoner. It is accordingly very desirable that the process of transition should be professionally supervised, to maximise the chances of the ex-prisoner's successful reintegration into the community and minimise the chances of his relapse into criminal activity. But of course there will be cases in which such professional supervision may not be, or appear to be, effective. If a prisoner is released, subject to conditions, before the expiry date of the sentence imposed by the court, and he does not comply, or appears not to comply, with the conditions to which his release was subject, a question will arise whether, in the interests of society as a whole, he should continue to enjoy the advantages of release.

26. Lastly, it is plain from the statutory provisions already quoted that the resolution of questions of the type indicated is entrusted, and entrusted solely, to the Parole Board. In exercising this very important function, it is recognised to be an independent and impartial tribunal for purposes of article 6(1) of the European Convention. It is the primary decision-maker, not entitled to defer to the opinion of the Secretary of State or a probation officer: H v Parole Board, Ex p Watson [1996] 1 WLR 906, 916. As the materials already cited make clear, the Parole Board is concerned, and concerned only, with the assessment of risk to the public: it must 'balance the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury': ibid. The sole concern of the Parole Board is with risk, and it has no role at all in the imposition of punishment: R v Sharkey [2000] 1 WLR 160, 162-163, 164."

23. It is to my mind important that Lord Bingham stresses the fact that the essential decision-making body, in deciding questions which arise under section 39 which he had quoted in extenso in paragraph 121, is the Parole Board, not the Secretary of State. Then a little later Lord Bingham focused on the role of the sentencing court on the one hand and the Parole Board on the other in the context of Article 5(1) and Article 5(4).
24. In paragraph 36, after quoting Article 5(1), Lord Bingham said this:

"It seems to me plain that in cases such as the appellants' the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court. This view may have founded the European court's recent admissibility decision in Brown v United Kingdom (Application No 968/04) (unreported) 26 October 2004, p 6. The same result was reached in Ganusauskas v Lithuania (Application No 47922/99) (unreported) 7 September 1999, where no break was found in the causal link between the original conviction and the redetention. But the revocation decision must comply with article 5(4), to which I now turn."

25. It is important to note the role of the sentence of the trial court with regard not only to the initial term, but also in relation to revocation and recall as part of what Lord Bingham called the "composite sentence". In paragraph 37, after quoting Article 5.4, Lord Bingham said this:

"It is accepted that for the purpose of revocation proceedings the Parole Board has the essential features of a court within the meaning or article 5(4), and although, under section 39(5)(b), it can only recommend the release of a recalled discretionary sentence prisoner, its recommendation has the effect of an order since the Secretary of State must give effect to it. Convention jurisprudence establishes that the judicial review of the lawfulness of detention must be wide enough to bear on those conditions which, under the Convention, are essential for the lawful detention of a person in the situation of the particular detainee: Van Droogenbroeck v Belgium (1982) 4 EHHR 443, 461-462, para 49, Weeks v United Kingdom 10 EHRR 293, 315, para 59, Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, 695, para 79 and E v Norway (1990) 17 EHRR 30, 51, para 50. That means, for present purposes, that the Parole Board should be empowered (a) to examine whether circumstances have arisen sufficient in law to justify further detention of a determinate sentence prisoner released on licence and, if so, (b) to decide whether the protection of the public calls for the further detention of the individual detainee. The Parole Board is empowered to discharge those functions. Its review will in my opinion satisfy the requirements of article 5(4) provided it is conducted in a manner that meets the requirement of procedural fairness already discussed."

In that passage Lord Bingham again emphasised the paramount role of the Parole Board as the decision-maker under section 39.

26. As I see it, the questions for consideration are essentially two. They are first, whether section 39 involves or potentially involves arbitrary detention, and secondly, whether there was arguably arbitrary detention of the appellant on the facts of this case. I turn, therefore, to the true construction of section 39.

Is detention in accordance with section 29 arbitrary?

27. Section 39(1) gives the Secretary of State a power to revoke a prisoner's licence and to recall him to prison if recommended to do so by the Parole Board. Subsection (2) gives such a power without the recommendation of the Parole Board if it is expedient to exercise it before such a recommendation is practicable. That is not this case; so I say nothing more about subsection 2.
28. There was some discussion in argument as to what is meant by the expression "recall him to prison" in subsection (1). It is not the same as "return to prison", because that expression is used in subsection 3(b). To my mind, as a matter of language it naturally means recall to prison by the Secretary of State so that the Secretary of State recalls a person to prison when he issues a determination to that effect. Recall to prison is the natural corollary of revocation of the licence. So, for example, the document entitled "Revocation of Licence" in this case expressly states:

"The Secretary of State hereby revokes the licence commencing on 03/05/02 in respect of Brett Edward Roberts and recalls him to prison."

As Maurice Kay LJ observed in the course of the argument, recall is the axiomatic consequence of revocation of the licence.

29. Subsection (3) contrasts "recall to prison" with "return to prison". Thus, in accordance with the express terms of the subsection, a person recalled to prison under subsection (1) may by paragraph (a) make representations and by paragraph (b) on his return to prison must be informed of the reasons for his recall and of his right to make representations. The right to make representations does not however depend on the person's return to prison but only on his recall to prison. I would therefore hold that the right to make representations can be exercised on recall and before physical return to prison.
30. I recognise that the draftsman probably contemplated such representations being made after return and after the prisoner has been informed of the reasons for his recall and of his right to make representations. Indeed I note in this regard that the directions to the Parole Board under section 32(2) of the 1991 Act and accompanying training guidance which, although since superseded, was in force when the events to which this case relates occurred, expressly contemplate representations being made after return to prison. I also recognise that many people whose licences have been revoked and who have been recalled to prison may not wish to make representations to the Parole Board before surrendering to custody and returning to prison. That is because the express effect of section 39(6) is that on the revocation of a person's licence he "shall be deemed to be unlawfully at large." In very many cases the Parole Board may be unlikely to be sympathetic to those who make representations with respect to their recall while deliberately remaining unlawfully at large.
31. Despite these consideration the language of section 39(3) entitles a person recalled to prison to "make representations in writing with respect to his recall." I can see no good reason why he should not do so immediately upon recall or, realistically, upon learning of the decision to revoke his licence and to recall him to prison. On receipt of such representations it would be the duty of the Secretary of State to refer his case to the Parole Board under the express provisions of section 39(4). It appears to me that the right to make representations is conceptually separate from the obligation to surrender, which is implicit in section 39(6). Moreover, this conclusion seems to me to be consistent with that of the European Court of Human Rights in Omar v France [2000] 29 EHRR 210 at paragraph 40, although I recognise that there is a distinction between that case and this because there the applicant was appealing against his conviction, whereas here, the appellant was convicted or pleaded guilty and the issues relate to his sentence. I should add by way of footnote that this construction of section 39 does not seem to me to be in any way inconsistent with section 38A. On this basis the appellant had the right to make representations to the Secretary of State as soon as he knew of the revocation, which it seems clear was on or before 12 June 2002. Mr Southey, however, submits that the cases show that the relevant provisions of law should be accessible to the persons concerned. He further submits that the Secretary of State should have spelled the appellant's rights out to him before he told his probation officer that he should hand himself in. It may well have been desirable for the Secretary of State to do so, but I do not think that it follows that the legal position was not accessible to the appellant. It is contained in a statute and the appellant could learn of it by taking legal advice from, say, an advice centre, or indeed by asking his probation officer.
32. In all these circumstances, subject to one possible point, I can see no basis for the conclusion that section 39 authorises arbitrary detention. On the contrary, it enables a person in the position of the appellant to make written submissions at any stage in circumstances in which such representations would have to be submitted to the Parole Board by the Secretary of State. The one possible point is this. Mr Southey submits that the detention was or would be arbitrary unless the Secretary of State had both the power and duty to reconsider or review the revocation of the relevant person's licence in circumstances such as existed here. That raises the question whether the Secretary of State has any power or duty to reconsider or review the decision to revoke the licence in the light of new material addressed to him. There are two extremes. One is that the Secretary of State has a duty to review the decision whenever new material is put before him. The other is that he has no duty to review the decision whatever happens and that it is entirely up to the person concerned to make written representations under section 39(3), which must then be put to the Parole Board under section 39(4).
33. It appears to me that, as is so often the case, neither extreme position is correct. Indeed Mr Johnson accepts that there must be some circumstances in which the Secretary of State has both a power and a duty to reconsider. He gives as an example the case where it can be plainly shown that, contrary to what the Secretary of State thought when he revoked the licence, it has become plain that the Parole Board had not recommended the revocation of the licence. In those circumstances, Mr Johnson recognises that the Secretary of State would have the power, and I think that he also recognises that the Secretary of State would be bound, to revoke the revocation of the licence.
34. Mr Southey criticises Mr Johnson's submissions for not clearly identifying the cases in which such a power or duty exists and those in which it does not. There is some force in that submission. However, it appears to me to be plain that section 39 does not contemplate a review by the Secretary of State whenever new material is placed before him. That would be quite contrary to the whole basis of the section as identified and explained by Lord Bingham in Wes, that the essential decision-maker is the Parole Board and not the Secretary of State.
35. It appears to me that the power and duty of the Secretary of State contemplated by the section can only have been intended to be a limited one in this regard. As I see it, it is only where it is or perhaps ought to be clear to the Secretary of State that the revocation of the licence was unlawful that the Secretary of State would have a power or duty to intervene. One such example would be that given earlier, where it has become plain that the Parole Board has not recommended revocation. In that event revocation of the license would be unlawful under subsection (1). Another might be one of the examples discussed in the course of the argument. Maurice Kay LJ posed the example of the case where a probation officer had sent the notification of an appointment to an address which he knew was an old address of the applicant. In such a case, once that fact was made known to the Secretary of State, it might become clear that the revocation was unlawful as being based on a fact which was plainly wrong. That might be a case in which it could properly be said that continued revocation of the licence was unlawful.
36. It may well be that it was that class of case which the writer of the letter of 4 July 2002 quoted above had in mind. However, in my opinion the section plainly did not have in mind the kind of case in which new facts come to light which might affect the judgment of the Parole Board in deciding whether to recommend revocation or subsequent release. Section 39 leaves such a case to be dealt with by the statutory machinery identified in section 39(3) and (4) and discussed above. I can see nothing arbitrary or disproportionate in such an approach. On the contrary, it seems to me to be both sensible and proportionate.
37. In all these circumstances I would hold that there is nothing arbitrary in the approach to detention or recall provided for in section 39 of the 1991 Act. In short, I would answer the question posed earlier, namely, is detention in accordance with section 39 arbitrary in the negative.

Was the detention of the appellant arbitrary on the facts?

38. I have reached the clear conclusion that the detention of the appellant on 26 September was not arbitrary. I set out the facts in some detail earlier. In summary, the appellant had twice previously failed to report to his probation officer. His licence had been revoked and he had been recalled as a result. When he was released on 3 May, again on licence, the position was made clear to him. On two subsequent occasions, 28 May and 25 June, he failed to attend appointments with his probation officer. On neither occasion did he explain why he could not attend, either before or immediately after the appointment. Unsurprisingly perhaps, the probation officer sought a revocation of the licence. The Parole Board recommended it and the licence was revoked. It is a reasonable inference that the appellant learned of the revocation on or before 12 July. He did not, however, give himself up, nor did he make any representations to the Secretary of State. It is not clear what he did. Whatever the appellant told his probation officer, she simply wrote to the Secretary of State saying that she had received written verification for his absences by his respective employers and asked for the revocation to be revoked. She did not send copies of the written verification, nor did she explain why it was that the appellant had not explained the reason for not attending the appointments at the time. That was, to any mind, a scant basis for the suggestion that the revocation should have been revoked without reference to the Parole Board.
39. While I can see that it was not an entirely satisfactory response for the Secretary of State to say on 19 July in reply to the probation officer's oral request that it was not possible for the recall to be rescinded and that the appellant should be advised to hand himself in, I do not think that the information provided to the Secretary of State was enough to enable him to revoke the revocation, let alone to require him to do so without a proper consideration by the Parole Board of all the circumstances.
40. The Secretary of State was not in my opinion arguably in breach of duty in failing to conduct a review of the revocation at that time. The appropriate course was, as described earlier, for the appellant to make written representations to the Secretary of State under section 39(3) which would lead to a consideration by the Parole Board. It was also for him not to remain unlawfully at large. It would subsequently be for the Parole Board to decide what recommendation to make in all the circumstances of the case. The Board would certainly not have acted only on the exiguous material in the letter of 12 July; it would no doubt have taken all the circumstances into account whenever it considered the matter, as indeed it presumably did after representations were made to it in late September.
41. In all these circumstances, for my part I do not think that it is arguable that the appellant's detention on 26 September 2002 was in any way arbitrary. On the contrary, it was lawful and not arguably an infringement of the appellant's rights, either under English law without reference to the Convention, or under Article 5 of the Convention. The judge was correct to hold that the revocation of the licence was lawful and that it continued to be lawful until the appellant was detained on 26 September and released on 1 October.
42. As to Article 5, the judge said this in paragraph 32 of his judgment:

"So far as Article 5 is concerned, I have already summarised the submissions of Mr Southey. In my judgment the claim is not made out for the actions of the defendant in this case being characterised as arbitrary, disproportionate or lacking in causal context. In my judgment they fail. The principal reason is that there is a mechanism in the section, which provides for consideration of representations which is brought into play as a result of the defendant and breaching the terms of his licence under which he was paroled, subject to complying with the terms of that licence."

I see no reason to differ from that approach. I would dismiss the appeal on the principal grounds advanced in argument.

43. I would only add three points. The first is that in the written material it was also suggested that there was an infringement of Article 5.4 by reason of delay after 26 October. This point was not developed in oral argument. I am not surprised. To my mind, as from 26 September the procedure provided for in section 39 worked well and there was no undue delay.
44. The second point is that, apart from Omar v France, to which I referred earlier, we were referred to RL and M-JD v France (unreported) 19 May 2004 and Bojinov v Bulgaria (unreported) 20 October 2004. But neither of those cases seems to me to affect the conclusions reached above.
45. The third is that nothing I have said should be taken as approval of the Secretary of State's reaction on 19 July. It does seem to me to be good practice for the Secretary of State to explain the position and the various options clearly and distinctly to the person whose licence is being revoked, subject of course to the particular circumstances of any particular case, including any relevant security considerations. However that may be, for the reasons I have given, I dismiss the appeal.
46. LADY JUSTICE SMITH: I agree.
47. LORD JUSTICE MAURICE KAY: I also agree.

(Appeal dismissed; Appellant's cost to be subject to detailed assessment; application for permission to appeal to the House of Lords refused).