England and Wales High Court (Administrative Court) Decisions

Biggs, R (on the application of) v Secretary of State for the Home Department [2002] EWHC 1012 (Admin) (20th May, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 May 2002

Mr Justice Richards:

1. The claimant is a short-term prisoner who seeks judicial review of a decision by the Secretary of State to revoke his licence and recall him to prison. At the hearing I dismissed the application, with reasons to follow in writing. These are the reasons for my decision.

Statutory framework

2. It is helpful to explain the statutory framework at the outset. The relevant provisions are contained in Part II of the Criminal Justice Act 1991. Section 33 provides, so far as material:

“(1) As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State -

….

(b) to release him on licence if that sentence is for a term of twelve months or more.

….

(3) As soon as a short-term … prisoner who -

(a) has been released on licence under this Part; and

(b) has been recalled to prison under section 39(1) or (2) below,

would (but for his release) have served three-quarters of his sentence, it shall be the duty of the Secretary of State to release him on licence.”

3. Section 33A deals with special cases, one of which is the case of a prisoner who is recalled to prison more than once:

“(3) In the case of a prisoner who -

(a) has been released on licence under this Part and recalled to prison under section 39(1) or (2) below; and

(b) has been subsequently released on licence under section 33(3) … above and recalled to prison under section 39(1) or (2) below,

section 33(3) above shall have effect as if for the words 'three-quarters' there were substituted the words 'the whole' and the words 'on licence' were omitted.”

4. Section 37 contains corresponding provisions as to the duration of licences:

“(1) Subject to subsections (1A), (1B) and (2) below, where a short-term … prisoner is released on licence, the licence shall, subject to … any revocation under section 39(1) or (2) below, remain in force until the date on which he would (but for his release) have served three-quarters of his sentence.

(1A) Where a prisoner is released on licence under section 33(3) … above, subsection (1) above shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.”

5. Section 39 governs the recall of prisoners while on licence. The material provisions, referring to the respective roles of the Parole Board and the Secretary of State, are these:

“(1) If recommended to do so by the Board in the case of a short-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).

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

…

(b) recommends in the case of any … person,

his immediate release on licence under this section, the Secretary of State shall give effect to the … recommendation.”

6. Section 41 deals with the situation where a person has spent time in custody on remand:

“(1) This section applies to any person whose sentence falls to be reduced under section 67 of the Criminal Justice Act 1967 …by any relevant period within the meaning of that section ('the relevant period').

(2) For the purpose of determining for the purposes of this Part -

(a) whether a person to whom this section applies has served one-half … of his sentence; or

(b) whether such a person would (but for his release) have served three-quarters of that sentence,

the relevant period shall, subject to subsection (3) below, be treated as having been served by him as part of that sentence.

(3) Nothing in subsection (2) above shall have the effect of reducing the period for which the licence granted under this Part to a short-term … prisoner remains in force to a period which is less than -

(a) one-quarter of his sentence in the case of a short-term prisoner ….”

The facts

7. On 14 February 2001 the claimant was arrested for an assault occasioning actual bodily harm on his brother. He was sent on remand to the psychiatric unit of Maidstone Hospital. On 23 April he was charged with a further assault occasioning actual bodily harm, this time upon a psychiatric nurse at the hospital. He was removed from the psychiatric unit and remanded in custody at HMP Elmley. He subsequently pleaded guilty to both offences and was committed to the Crown Court for sentence. There were several adjournments of the case in the Crown Court. In December 2001 he was admitted to Broadmoor Hospital for a psychiatric assessment, the conclusion of which was that he did not meet the conditions for detention under the Mental Health Act 1983. On 12 April 2002 he was discharged from Broadmoor and appeared before Maidstone Crown Court, where he was given concurrent sentences of 18 months' imprisonment on each count.
8. By reason of the amount of time he had served on remand (see section 41), the claimant had already served more than one-half of his sentence and was entitled to immediate release on licence pursuant to section 33(1). The relevant sentence calculation was carried out by the prison staff and he was released at about midday on 12 April.
9. On the afternoon of the same day, however, he was recalled to prison. Because of the way the case has developed, it is unnecessary to examine the circumstances that led to his recall. Suffice it to say that the claimant took issue with the lawfulness of his recall. An application for habeas corpus was made that evening to the duty judge but was refused. A further application came before the court on 19 April but was adjourned to 23 April for adequate notice of it to be given to the Secretary of State.
10. By the time of the adjourned hearing on 23 April, the claimant had been released again. He was released on 22 April as a result of a revised sentence calculation carried out in the light of information in the habeas corpus papers faxed through to the Prison Service's Sentence Enforcement Unit by the claimant's solicitor on 19 April. The papers showed that the claimant had spent a total of some 420 days on remand, including not only 311 days on remand at HMP Elmley, but also a period at the psychiatric unit at Maidstone Hospital which had not previously been taken into account. The result of taking the total time into account was that at the time of his recall on 12 April the claimant had already served more than three-quarters of his sentence and had therefore been entitled to be released again immediately pursuant to section 33(3). The release on 22 April gave belated effect to this.
11. The circumstances of the further release were not clear to those appearing at the adjourned hearing on 23 April. In the event Sullivan J ordered that the application for habeas corpus stand as an application for judicial review and gave permission for the challenge to proceed, the purpose being to determine the legality of the claimant's detention between 12 April and 22 April.
12. On 26 April (or, strictly, in the early hours of 27 April) the claimant was recalled to prison once more. The circumstances of the recall are considered in detail below, since they give rise to the remaining substantive issue in the case.
13. The recall led to a further application for habeas corpus. The matter came before Sullivan J on 3 May, when he gave leave for the existing judicial review claim to be amended so as to include a challenge to the further recall. He also directed an expedited substantive hearing, which took place before me on Friday 10 May.
14. Since the claimant's recall he has made representations in writing pursuant to section 39(3)(a) and the case has been referred to the Parole Board pursuant to section 39(4). The Parole Board was due to meet to consider the case on Monday 13 May. The effect of my decision refusing the application for judicial review is that the claimant's further release will now depend in the first instance upon the view that the Parole Board takes of his case. If the Parole Board recommends his immediate release, the Secretary of State will be required to give effect to that recommendation pursuant to section 39(5). His release between now and his sentence expiry date (in August) will otherwise be a matter for the discretion of the Secretary of State.

The issues

15. The issues in the case had been substantially reduced by the time of the hearing before me.
16. First, it was conceded on behalf of the Secretary of State that the claimant's detention between 12 April and 22 April was unlawful, on the basis that, by reason of the time spent on remand, the Secretary of the State was under a duty pursuant to section 33(3) to release him again immediately upon his recall on 12 April. Surprising though this might appear, it does seem to follow from the statutory provisions. Had the problem been appreciated at the time, it might have been possible to get round it by recalling the claimant, releasing him immediately and then making a further immediate recall. That was not, however, what was done.
17. Mr Sinclair, who appeared on behalf of the claimant, invited me to grant a declaration that the claimant's detention from 12 April to 22 April was unlawful. I do not consider a declaration to be necessary. The point has been conceded and the concession is recorded in this judgment. It should also be possible for compensation in respect of the period of unlawful detention to be agreed without the further intervention of this court. I was not addressed on that issue.
18. Since the detention from 12 April is accepted to have been unlawful, nothing turns on whether there did in fact exist a proper basis for the claimant's recall on 12 April. That point has therefore not been pursued.
19. As to the second recall, Mr Sinclair does not pursue his former contention that the statutory provisions did not empower the Secretary of State to make a further recall. It is now common ground that by virtue of sections 33A(3) and 37(1)-(1A) of the 1991 Act, the claimant's licence remains in force for the whole of his sentence and not just up to the three-quarter point. The only remaining submission advanced by Mr Sinclair is that in the particular circumstances of the case the second decision to recall was an unreasonable one.
20. Mr Lewis, for the Secretary of State, not only seeks to uphold the reasonableness of the second recall decision, but also takes the logically prior point that judicial review of such a decision on Wednesbury grounds is simply inappropriate, having regard to the statutory regime under section 39 and in particular what is described as the alternative remedy available in the form of consideration of the case by the Parole Board.
21. Accordingly the remaining issues are (1) whether judicial review is an appropriate procedure and (2) if so, whether the second recall decision was unreasonable.

Whether judicial review is appropriate

22. Mr Lewis submits that Parliament intended that questions of recall should be dealt with by the Parole Board. Whether the Board has itself recommended recall under section 39(1) or the Secretary of State has recalled under the section 39(2) emergency procedure, it is the task of the Board to carry out a review under section 39(4). Its function is that of a specialist body balancing the interests of the public against those of the individual prisoner. As it was put by Sir Thomas Bingham MR in R v. Parole Board, ex parte Watson [1996] 1 WLR 906, 916G-907A:

“Section 39(4) prescribes no statutory test which the Board is to apply. But the board's function under section 39(5) is almost exactly the same as that under section 34(3), namely to direct (or not) the prisoner's release. In the absence of express statutory provision, it is to be assumed that the same test is applicable …. In exercising its practical judgment the board is bound to approach its task under the two sections in the same way, balancing 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. In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance the board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury. This is the test which section 34(4)(b) prescribes, and I think it is equally appropriate under section 39(4).”

23. Mr Lewis submits that an assessment of the reasonableness of the Secretary of State's decision to recall under section 39(2) necessarily takes one into the merits of the case and, in particular, into questions as to the balance of hardship and risk. That is plainly a task more appropriately left to the Parole Board. Its procedures are suitable and it can take account of all available information, including representations by or on behalf of the recalled prisoner. The matter can be dealt with quickly, as the timetable of the present case shows (recall 26 April, Parole Board hearing 13 May); judicial review will not in general be any quicker. Accordingly, judicial review on Wednesbury grounds should not normally be entertained in relation to the decision to recall. It would be different e.g. if the issue were one of statutory power to recall (as was originally advanced in this case) or there were other special circumstances.
24. I agree that it will generally be inappropriate to challenge a recall decision of this kind on Wednesbury grounds. One is concerned here with an emergency procedure, involving the exercise of an extremely broad discretion by the Secretary of State. He is empowered to recall a person under section 39(2) where it appears to him that it is "expedient in the public interest" to recall that person before a Parole Board recommendation under section 39(1) is practicable. A challenge on Wednesbury grounds is in reality most unlikely to succeed. In determining the reasonableness of the Secretary of State's view as to expediency of recall, the court will take into account the existence of the post-recall procedure which enables the merits of recall, and in particular the balance of hardship and risk, to be properly assessed by an expert body with the benefit of full information. Against that background the court will inevitably be very slow indeed to conclude that no reasonable decision-maker could recall a prisoner on licence in respect of whom grounds for concern have been expressed.
25. The situation may not strictly be that of an available alternative remedy, since the function of the Parole Board in determining on substantive grounds whether the recalled prisoner should stay in prison or be released immediately is not the same as that of the court reviewing the lawfulness of the recall decision. But the question addressed by the Parole Board is the important question of substance; and its procedures are as quick, or almost as quick, as those of the court on judicial review. In those circumstances, although the court does of course have jurisdiction to entertain an application for judicial review on Wednesbury grounds and the possibility of the exercise of that jurisdiction in exceptional circumstances is not to be ruled out, it seems to me that in general judicial review is to be discouraged.
26. I go on to consider the specific Wednesbury challenge in this case, which to my mind tends to reinforce the inappropriateness of judicial review of a recall decision.

Whether second recall decision was unreasonable

27. The basis upon which the second recall was made is described in the witness statement of Mr Christopher Green, a caseworker in the Sentence Enforcement Unit who was the officer on duty on the night of 26 April:

“At approximately 6 pm I responded to a pager message from Karen Page, assistant chief probation officer for the Kent area. On telephoning Ms Page I was informed that Mr Biggs had been sentenced for 2 offences of assault occasioning actual bodily harm and that he had been assessed as presenting a risk of further offending. I was also informed that he had been diagnosed as having a borderline personality disorder and had a history of alcohol misuse. I was told that there had been a deterioration in Mr Biggs's mental health and that he had voluntarily presented himself that day to the psychiatric services. I was also told that he had no suitable accommodation available to him and that he had been staying with his brother and family, even though his licence conditions prohibited such contact without prior approval (his brother having been the victim of one of the assaults). Ms Page was requesting immediate recall given that there was an unacceptable risk that Mr Biggs could harm himself or others. Ms Page had also faxed the details to the SEU office …. In view of the information received, I decided that Mr Biggs's licence should be revoked … and that he should be recalled immediately to prison.”

28. The fax from Ms Page to the Sentence Enforcement Unit referred to the two offences for which the claimant had been sentenced as "GBH" (apparently an error for "ABH") and stated that he had been "assessed as potentially dangerous", that he had clinical borderline personality disorder and a history of alcohol misuse, and that immediate recall had been recommended on grounds of:

“- deterioration in mental health - presented himself voluntarily to psychiatric services

no suitable accommodation

has been staying with brother & his family - in the knowledge of Probation - but brother is victim of his offence

balance of probability that Mr Biggs could harm himself or others”

29. Mr Green's written reasons for revocation of the claimant's licence, as given to the claimant pursuant to section 39(3)(b), stated:

“You have been recalled to prison because you breached condition 5(vii) of your licence in the following way;

It has been reported that you have breached the condition of your licence which stipulates that you must not seek to contact or communicate directly with your brother and family, without the prior approval of your supervising officer, in that it has been reported that you were residing with your brother without first obtaining that prior approval.

In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence.”

30. Condition 5(vii) of the licence was a requirement that while under supervision the claimant must:

“not … seek to contact or communicate directly or indirectly with your BROTHER and FAMILY without the prior approval of your supervising officer.”

31. Mr Sinclair submits that the essential reason for recall can be seen from the written reasons to have been a perceived breach of the licence condition; but in fact there was no breach of the licence condition, as Mr Green would have discovered if he had investigated the position further by asking further questions of Ms Page. It was unreasonable to decide on recall on this ground without such further investigation.
32. The point about the licence condition arises in this way. According to the claimant's evidence, on his release on 22 April the Probation Service at Maidstone had been unable to find any accommodation for him. He had walked round Maidstone trying to find somewhere to sleep. The following day, while walking in Maidstone, he had seen his brother and they had both gone to the Probation Service. His brother had asked if the claimant could stay with him until the Probation Service could find him accommodation, and the probation officer had said that this was "alright". The claimant then stayed with his brother for the next three days, until 26 April. On 26 April his brother walked him to the bus stop from where he caught a bus to Maidstone Hospital as again he was not feeling well. He was admitted to the psychiatric unit and was then recalled to prison. What Mr Sinclair submits is that, on the basis of those facts, there was no breach of condition 5(vii) of the licence. It is the seeking of contact, rather than actual contact, which the condition prohibits. The claimant did not, however, seek to contact his brother. The circumstances in which he came to live with his brother involved no such seeking of contact on his part. Moreover, even if the arrangement did not have the formal prior approval of his supervising officer, the Probation Service had acquiesced in the arrangement. Mr Green would have discovered all this if he had investigated the position further by asking how long the Probation Service had known that the claimant was living with his brother.
33. In my judgment, if the court is to assess the rationality of a recall decision of this kind, it is essential to have due regard to the context and to focus attention on the actual information available to the decision-maker. I have already covered the context when considering whether judicial review is appropriate. It is that of an emergency procedure under section 39(2). A view must be formed on whether it is expedient in the public interest to recall the person before a recommendation by the Parole Board is practicable, and in circumstances where, if a recall is made, the case will be referred to the Parole Board for a full assessment in the light of all relevant information, including written representations from the person recalled. That context tells strongly in favour of a rapid decision-making process, without extensive investigation or procedural elaboration. If the Sentence Enforcement Unit is presented with information suggesting that there is cause for concern, a decision to recall immediately and to allow matters to be examined fully by the Parole Board after recall, without probing far into the factual background before reaching a decision, cannot sensibly be regarded as an irrational response.
34. In this case the assistant chief probation officer for the area had recommended immediate recall. It seems to me that if one bears that in mind and looks at all the considerations advanced in support of the recommendation, including the previous assessment of risk and the apparent deterioration in the claimant's mental health, the case for immediate recall was compelling. It is clear from Mr Green's witness statement that he did take all those considerations into account. It is unfortunate that the written statement of reasons does not identify all the considerations actually taken into account but focuses only on the breach of condition 5(vii) of the licence. Although Mr Sinclair submitted that I should confine my attention to the written statement of reasons, that would in my view be unrealistic, especially given that the other considerations taken into account are supported by the contemporaneous fax from Ms Page recommending the recall. Once one looks at the total picture available to the decision-maker, then in my view the decision to recall was not just rational but virtually inevitable.
35. But even if one does confine attention to the breach of condition 5(vii) of the licence, then in my view the decision to recall was still a reasonable one. The information provided to the decision-maker was that the claimant was living with his brother, who was the victim of one of the assaults for which he had been sentenced. It was entirely reasonable to take the view that this constituted a breach of condition 5(vii). In the ordinary course it is difficult to see how a person could live with another person without seeking to contact or seeking to communicate with that other person (I read "seek" as governing both limbs of the condition) and there was nothing in the information provided to suggest that in the particular circumstances of the case, although contact and communication had taken place, they had not been sought by the claimant and there had therefore been no breach of the condition. Similarly there was nothing in the information provided to suggest that there might have been prior approval of the arrangement by the supervising officer. The mere fact that the Probation Service knew that the claimant had been living with his brother did not indicate any approval of the arrangement, and if there had been such approval one would have expected Ms Page to mention it. The situation was not one that called for further inquiry before a decision could reasonably be taken. In truth, the fact that the claimant was known to be living with the victim of one of his assaults, whom he was expressly prohibited from seeking to contact or communicate with, amounted on the face of it to a clear breach of the licence and a sufficient reason for recall. The decision-maker did not have the claimant's evidence that he acted with the prior knowledge and agreement of the probation officer. It was not necessary for him to make further inquiries. The full picture is one for determination and assessment by the Parole Board in accordance with the procedure laid down by section 39.
36. Accordingly I reject the submission that the second decision to recall was unreasonable and the substantive challenge to the decision fails.

Conclusion

37. In accordance with the indication given at the hearing, and for the detailed reasons given above, the claim for judicial review is dismissed.
38. In accordance with the provisional indication given at the hearing and the further reasons given in a draft of this judgment which was made available to counsel, and in the light of the responses of counsel to that draft judgment, there will be no order as to costs (including costs reserved at previous adjourned hearings), save for detailed assessment of the claimant's costs for the purposes of Community Legal Service funding.
- - - - - - - - - - - - -

MR JUSTICE RICHARDS: I am handing down judgment in this case. The judgment contains the reasons for a decision that I announced at the close of argument. I have dispensed with attendance by the parties. The case concerns the recall to prison of a prisoner on licence. The recall was under the emergency procedure. I have held that judicial review is generally inappropriate as a means of challenging a recall decision of that kind, given the existence of a detailed parole board examination of the case immediately following recall. I have also held that, on the particulars facts of the case, if judicial review is appropriate, the challenge itself fails.

For all those reasons, the application for judicial review is dismissed. There is no order as to costs, save for detailed assessment of the claimant's costs for purposes of Community Legal Service funding.