England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MANCHESTER DISTRICT REGISTRY

		15 April 2011

MR JUSTICE SILBER:

I. Introduction

1. Adrian Jorgenson ("the claimant") challenges the decision of the Secretary of State for Justice ("the defendant") made pursuant to section 254 of the Criminal Justice Act 2003 ("CJA 2003") to recall him to custody on 12 July 2010 for using cannabis in breach of the licence conditions on which he was released from prison.
2. The background to this case is that on 22 December 2005, the claimant was sentenced to eight years imprisonment for three counts of possession of an imitation firearm with intent, three counts of false imprisonment as well as counts of blackmail and kidnapping. Those offences were closely related and they were connected to the claimant's association with drugs, drug debts and drug dealing.
3. The claimant had a long history of frequent offending between 1980 and 2005 as he had been convicted on 29 occasions for 84 offences including 23 for theft and similar offences, 9 fraud offences, 9 drug related offences, 2 offences against the person, and 3 public order offences. He had also served previous custodial sentences.
4. The Parole Board directed the early release of the claimant on parole licence on 7 April 2010. It directed that the claimant's parole licence would include among other conditions a provision that:-

"[The claimant's] alcohol and drug use to be closely monitored and should there be a problem he will be referred to a specialist agency immediately".

5. On 2 June 2010, the claimant was released on parole and he was required to reside at specified approved premises and to comply with licence conditions, which included a requirement for him to sign on at the hostel four times a day. The conditions imposed on him in paragraph 5 of his Licence included requirements that:-

"vi. [the claimant will] be well behaved, not commit any offence and no[t] do anything which could undermine the purposes of [his] supervision, which are to protect the public, prevent [him] from reoffending" and that

"x. [The claimant's] alcohol and drug use to be closely monitored and should there be a problem he will be referred to a specialist agency immediately".

6. In a witness statement made in these proceedings, Mr James Hough a Senior Case Manager within the Post-Release Casework Team of the Public Protection Casework Section in the National Offenders Management Service ("NOMS"), an Executive Agency of the Ministry of Justice, has explained that in the light of the serious nature of the claimant's offending, he was managed within the Multi Agency Public Protection Arrangements ("MAPPA") at level 3, which is a category reserved for those prisoners "assessed as posing a risk of serious harm to the public which requires active inter-agency management". The purpose of MAPPA, according to Mr. Hough, is to manage the risks posed by sexual and violent offenders who "present a high risk of harm, in order to protect the public".
7. The claimant was also registered at MAPPA's request as a Critical Public Protection Case ("CPPC") with NOMS. The criterion for this registration was that the offender presented an immediate risk of serious harm (as was the case with the claimant) and that there was a need to ensure that public confidence in the criminal justice system was maintained.
8. On 12 July 2010, Ms Emma Turner an Offender Manager at Greater Manchester Probation forwarded her Request for Recall report relating to the claimant in which she requested his emergency recall on the grounds first that he had tested positive for cannabis in breach of his licence conditions; second that he was assessed as a very high risk of serious harm to the public; third that he was a registered level 3 MAPPA offender and additionally a registered CPPC; and fourth that the claimant can be volatile whilst under the influence of drugs.
9. Ms Turner considered that any return to substance misuse by the claimant would indicate that he might be re-engaging in associated criminal activities and therefore that he met the criteria justifying his emergency recall. It was pointed out by Ms Turner that the offences for which the claimant was sent to prison were "linked to the misuse of illegal substances and that any use of substances indicates an increase in risk" with the result that he would pose a very high risk of harm to the public. It was pointed out in the "Request for Recall" form that:-

"Any return to drug misuse [by the claimant] has been identified in the OASys to be an indication that [the claimant] may be engaging in criminal activity".

10. The application for emergency revocation of the claimant's licence was considered by a Senior Caseworker within the Croydon Recall team and after consideration, recall was then authorised with the claimant's licence being revoked on that day at 12.35pm. The claimant was recalled and after the completion of the oral hearing in this case, the claimant has been released again on licence.
11. It is not disputed first that the claimant provided a positive drug test for cannabis on 10 July 2010 and second that the claimant had complied with the other licence conditions, which included residence at approved premises and signing in at the premises four times a day.
12. There is clear authority that if it is unlawful, a decision to recall a prisoner can be quashed (Rodgers v Governors of HMP Brixton and Another [2003] EWHC 1923 (Admin)). Indeed the Court of Appeal has recognised that in appropriate circumstances, the Administrative Court can quash a decision by the Parole Board to recall a prisoner to custody. Sir Igor Judge P (as he then was) explained in Gulliver v Parole Board [2007] EWCA Civ 1586 that:-

"There may, of course, be exceptional cases where the revocation of the decision process is so subverted that the prisoner may seek a different or separate remedy, by way of judicial review or, indeed, habeas corpus." [45]

II. The Issues and the Court's Approach to a Challenge to a Decision to Recall an Offender

13. The grounds of challenge are that:-

i) The decision to recall was based on false or flawed premises and/or was made in bad faith ("The Flawed Premises Issue");

ii) The decision to recall was disproportionate in so far as it failed to consider relevant and material factors, namely the possible alternatives to recall and the claimant's explanation for his breach ("The Failure to Consider Relevant Factors Issue");

iii) In making the decision to recall the defendant fettered his discretion and/or failed to provide reasons for the claimant's recall ("The Fettering Discretion Issue"); and

iv) The decision to recall the claimant was in breach of a legitimate expectation consequent upon the licence condition which stipulated that drugs or alcohol misuse would be met with a referral to a specialist agency ("The Legitimate Expectation Issue").

14. There has been much discussion about how the court should approach an application to challenge a decision by the defendant to recall a prisoner. The case for the defendant is that in cases such as present one, the crucial (and perhaps the only) question for a court in that situation was explained by Judge Langan QC in R (Howden) v Secretary of State for Justice [2010] EWHC 2521 Admin [14], which was a case involving a breach of a licence condition. In that case, it was stated that:-

"What is required of the defendant before he orders a recall is that there is "evidence upon which he could reasonably conclude that there had been a breach": R (Gulliver) v Parole Board [2007] EWCA Civ 1386, para. 5 (Sir Anthony Clarke MR). Put slightly differently, the question "is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself by reference to the standard of good behaviour: R (McDonagh) v Secretary of State for Justice [2010] EWHC 396 (Admin) para. 28 (Judge Pelling QC). The threshold is plainly a modest one."

15. The case for the defendant in this case is that the claimant breached his licence condition so that the defendant was entitled in the light of the conclusions in Gulliver, Howden and McDonagh to revoke the licence of the claimant. It is said by Mr Matthew Slater counsel for the defendant that in this case, the modest threshold has been met because there is ample evidence which would have meant that the Secretary of State could reasonably have believed that the claimant has not conducted himself in accordance with the conditions of his licence or the standard of good behaviour by using cannabis.
16. It is not every breach of his or her licence, which will justify a decision to recall an offender and indeed arriving at a hostel a minute or two after the stipulated time could not justify a recall especially if the prisoner had invariably been punctual on many previous occasions. 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. Almost invariably, there will also have to be consideration of two relevant specific sub-issues.
17. First, a relevant issue will be if the offender acted intentionally in breach of his or her licence condition as this must be a material consideration in deciding whether to recall the licensee. This approach was established in the case of R (Benson) v Secretary of State for Justice [2007] EWHC 2055 (Admin) in which a prisoner was held to be in breach of an obligation to wear an electronic tag but it transpired that there was a possibility, if not a likelihood, that the tag was not functioning properly. Collins J explained that:-

"21..in considering whether he should exercise his discretion in favour of recall, it must be a material considerations to see whether there is any fault on the part of the prisoner.. He must, in my view investigate any explanation that has been put forward in order to satisfy himself that recall is justified in all the circumstances".

18. Second, it is crucial to bear in mind as was explained by Mr. Vijay Jagadesham, counsel for the claimant that the decision to recall a prisoner entails important questions relating to the liberty of an individual. Indeed in a different context in the case of Saadi v United Kingdom (Application no. 13229/03), the Grand Chamber in Strasbourg said that:-

"70.. the detention of an individual is such a serious measure that it is only justified as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require the person concerned to be detained".

19. Any decision to recall a prisoner must be proportionate to the aim of avoiding risk to the public. Therefore, in the words famously used by Lord Clyde in giving the Opinion of the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, it is necessary that:-

"the means used to impair the right or freedom are no more than is necessary to accomplish that objective".

20. The primary objective underlying the power to recall is the protection of the public. Lord Slynn of Hadley explained in R (Smith and West) v Parole Board [2005] 1WLR 350, 368 that "56…Recall of a prisoner on licence is not a punishment. It is primarily to protect the public against further offences" . Similarly more recently, Langstaff J stated in R (McHale) v Secretary of State for Justice [2010] EWHC 3657 (Admin) [5] that:-

"It is not in dispute before that the purpose which the provisions as to recall on licence seek to achieve is the protection of the public".

21. The relevant statutory provision is section 254 of the CJA 2003, which provides, in so far as is material that:-

"(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".

22. The statute does not provide a list of matters which should be considered. It is settled law that in those circumstances:-

"Where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review" per Laws LJ in R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [35].

23. In my view, in cases where a decision has to be made as to whether an offender should be recalled and the safety of the public is at risk if the offender remains out on licence, the Secretary of State is obliged to conclude in an appropriate case whether it is necessary to revoke the licence to protect the public.
24. There has been some controversy as to the adequacy of the reasons given in this case to justify the claimant's recall. It is appropriate to remember that the reasons for all decisions including orders for recall in the words of Lord Brown in South Bucks DC v Porter (No 2) [2004] 1WLR 1953 at [36]:-

"… must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important and controversial issues".

25. So I consider that the legal position is that when faced with a challenge to a decision to recall a prisoner because of the risk to the public for breach of a condition of his or her licence, the court should consider:-

i) Whether there is "evidence upon which he could reasonably conclude that there had been a breach": R (Gulliver) v Parole Board [2007] EWCA Civ 1386, [5] (Sir Anthony Clarke MR). Put slightly differently, the question "is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself by reference to "the standard of good behaviour": R (McDonagh) v Secretary of State for Justice [2010] EWHC 369 (Admin), [28] (Judge Pelling QC). If the Secretary of State cannot satisfy that test, the recall is unlawful but if he or she can, it is necessary to progress to the next questions;

ii) Whether there is the absence of any fault on the part of the prisoner so as not to justify recall (R (Benson) v Secretary of State for Justice (supra)) because if there is not any fault, this will probably be a crucial or at least a very material consideration militating against justifying recall;

iii) Whether the decision to recall the prisoner can be justified on the basis that it is necessary in order to protect the public because of the dangers posed by the prisoner while out on licence (R (West) v Parole Board(supra) and de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (supra));

iv) Whether adequate reasons have been set out to justify that decision so that the prisoner is, in Lord Brown's words in the South Bucks case (supra), able "to understand why the matter was decided as it was and what conclusions were reached on the principal important and controversial issues", which in this case means able to understand why his recall is justified;

v) It is not entitled to make the decision on whether the prisoner should have been recalled because of the limited nature and extent of its power to quash a decision on a judicial review application. Indeed as was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QB in passages which were expressly approved on appeal in that case by Lord Phillips M.R. [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal that:-

"37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ." and that

"43.. In the context of the European Convention on Human Rights it is recognised that, in determining whether an interference with fundamental rights is justified and, in particular, whether it is proportionate, the decision-maker has a discretionary area of judgment or margin of discretion. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests" and that

(vi) "It is essential that in exercising the very important jurisdiction to grant judicial review, the court should not intervene just because the reasons given, if strictly construed, may disclose an error of law. The jurisdiction to quash a decision only exists when there has in fact been an error of law. Moreover, the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt." per Lord Browne-Wilkinson giving the only reasoned speech in Reg. v. Bishop Challoner School, Ex p. Choudhury (Emphasis added) [1992] 2 AC, 182,197E.

III. The Flawed Premises Issue

26. It is appropriate to start by considering the flawed premises challenge because the defendant's justification for the decision to recall the claimant is based on an assessment of the claimant's risk to the public and if that assessment can be impugned on public law grounds, the defendant's case will be seriously undermined, if not destroyed.
27. The case for the claimant is that the decision to recall him was based on an OASys form completed on 10 June 2010 but crucially this was based on false or flawed premises. This report stated that the claimant posed a very high risk of harm when in the community to known adults and to the public. Mr. Jagadesham contends that these conclusions contrast sharply with the OASys completed on 21 January 2010, which indicated that the claimant posed only a medium risk of serious harm and a medium risk of being reconvicted.
28. It is said by counsel for the claimant that there is no explanation for these drastically different risk assessments, both of which were carried out by officials of the National Probation Service within a period of less than six months especially as nothing negative had occurred as far as the claimant was concerned during that time period. Of course, the June 2010 OASys report was completed prior to the positive drug test on 10 July 2010 and thus it could not have been a factor, which could or would have led to an alteration in the assessment of risk.
29. The case for the claimant as stated in paragraph 22 of his Detailed Statement of Facts and Grounds is (with my emphasis added) that:-

"There is an available inference, which the Claimant invites the Court to take, that the Probation Service (directed by MAPPA attendees) deliberately manipulated the risk of harm assessments in order to ensure the Claimant would (i) be managed at the highest level of supervision in the community i.e. at MAPPA 3 and as a Critical Public Protection Case, such that (ii) recall could be initiated and secured more easily than would otherwise be the case".

30. In support of that contention, it is pointed out by Mr. Jagadesham that at the time of the January 2010 assessment, the claimant was a MAPPA 2 offender and not a MAPPA 3 offender and that the strictness of the claimant's supervision was increased without any reason or justification.
31. It is also contended correctly that there is a clear difference in emphasis in respect of the importance of drugs as a risk factor in the claimant's case in the two different OASys documents. In the June 2010 assessment and in the Request for Recall report, drug misuse by the claimant has been elevated to a risk factor and one which would lead to risk being increased. This contrasts with the earlier January 2010 assessment in which drug misuse is not listed as a specific factor that would increase the claimant's risk in this way. It is also pointed out that when listing factors that would increase the claimant's risk, the Parole Board in April 2010 did not refer to drug use.
32. Mr. Jagadesham invites the court to draw the inference that as the June 2010 assessment was completed after the MAPPA meeting on 2 June 2010, the elevation of drug misuse to becoming such a significant factor entitles the court to infer that there was a deliberate attempt to provide the foundation for an emergency recall on the basis of a single positive drug test.
33. Thus the claimant's case is that the core decision to require the claimant's recall was taken on a flawed basis because first the court should infer that the risk of harm assessments were either deliberately or mistakenly placed at too high a level in the June 2010 assessment and second that the risk factor of drugs, which had previously not been designated as a risk factor in the January 2010 assessment had by July 2010 become an increased risk factor.
34. I accept that in the circumstances of this case, some justification is required for these marked differences over a relatively short period of time in the assessments of the risk posed by the claimant while at large but what is significant is the different circumstances in which each of the two reports were prepared. The report in June 2010 was produced after the claimant had been released on licence and that would probably explain first why it is a much more detailed document than the January 2010 assessment and second why it for obvious reasons pays much greater attention to the risk to the public than the January 2010 report. It is noteworthy and very obvious that when that earlier report was produced, the claimant had not even been recommended for early release.
35. I have read with care the June 2010 report bearing in mind that this ground is essentially a rationality challenge but what is of great significance in assessing the risk posed by the claimant is the nature of the offences for which he had received his sentence of eight years imprisonment and from which he had been released on licence in June 2010. They were extremely serious offences in which the claimant and his co-defendant had armed themselves with hammers and real or imitation firearms before their targeted victim was kidnapped and then falsely imprisoned. The claimant explained that the reason why he had gone to the victim's home was because the victim had given him talcum powder in place of cocaine, which according to the claimant should have been delivered and so he wanted his money back. Eventually the victim ensured that a large bag of cocaine was handed over to the claimant and his associates.
36. Against that background, the compiler of the June 2010 report was entitled to state that the nature of the risk posed by the claimant was "extreme physical violence including use of weapons and firearms, aggression and intimidation" with the risk being at its greatest if the claimant is "using drugs" among other factors. These led to the assessments that the claimant posed a very high risk when at liberty in the community to known adults and to the public. The designation of "very high risk" meant that the claimant posed "An imminent risk of serious harm. The potential event is more likely than not to happen imminently and the impact would be serious." It was pointed out that the factors which are likely to increase the risk posed by the claimant would be "Drug misuse, Association with known offenders, Lack of finance".
37. This rationality and fairness challenge fails because I agree with the submission of Mr Slater that the risk assessment in the June 2010 report was an assessment which the Offender Manager was entitled to reach at a time when the claimant had been released into the community, particularly on the basis of first the seriousness of his offending behaviour (which I have described in paragraph 35 above and which led to him receiving a sentence of 8 years imprisonment) and second his very disturbing previous record, which showed that he had been convicted of 84 previous offences of which many were serious.
38. There has been no cogent evidence adduced to show any bias on the part of the writer of the June 2010 report or indeed any error in setting out the facts which led the writer of the report to reach the conclusions which Mr. Jagadesham now challenges. There is no reason why those concerned with the decisions to recommend and order the claimant's recall were not entitled to rely on the June 2010 report's conclusions. For the purpose of completeness, I should add that nothing whatsoever has been adduced to support the serious allegation made by the claimant's legal advisers that an inference can be drawn that "the probation Service (directed by MAPPA attendees) deliberately manipulated the risk of harm assessment". I consider that this serious allegation has no foundation whatsoever and the defendant was entitled to rely on the June 2010 report and the assessments of risk contained in them.

IV. The Failure to Consider Relevant Factors Issue

(i) Introduction

39. Mr. Jagadesham submits that the defendant failed to consider first the claimant's explanation for his breach of the licence conditions and second the alternatives to recalling the claimant, including warning him.

(ii) Alleged failure to consider the claimant's explanation for his breach of the licence conditions

40. As I have explained in paragraph 17 above, the culpability of a prisoner is in Collins J's words in R (Benson) v Secretary of State for Justice "a material consideration" in deciding whether to recall him. It is accepted that the claimant deliberately smoked cannabis. Although Mr. Slater contends that the decision to recall the claimant was taken in the knowledge that he smoked cannabis because he was in an emotional state following a visit to his mother's grave, the evidence does not support the contention that the decision-maker had this knowledge or any knowledge other than what was in the 2010 assessment. Nevertheless, the present case is far removed from that of Benson who did not admit his liability and probably was not in breach of his licence, because the claimant in the present case has always admitted that he smoked cannabis.
41. This case is also totally different from that of Benson in other respects because in the present case, not merely is first the breach admitted but also second that the decision of the claimant to smoke cannabis was a deliberate act by the claimant and third it was an activity which the claimant must have known to be both unlawful and also to be in breach of his licence condition. The critical fact is that the claimant when on licence was prepared to acquire and smoke cannabis. In any event, I cannot think that the fact that the claimant used drugs when he was upset after visiting his mother's grave constituted any kind of excuse to the claimant for this intentional and deliberate use of drugs or that this reason for using drugs would have had any effect on the decision to recall the claimant; this is so especially in the light of the high level of risk posed by the claimant and the particular dangers in the light of his past criminal history of him using drugs as set out in the OASys report of June 2010.
42. This admission by the claimant that he had acted in breach of his licence when he deliberately used cannabis was obviously highly significant in the light of the conclusions in the OASys report of June 2010, which was that the claimant's use of drugs would increase the risk which the claimant would pose which was in any event described as "very high" to known adults and to members of the public. This classification meant that the claimant posed "…an imminent risk of serious harm. The potential event is more likely than not to happen imminently and the impact would be serious". This is the highest category of risk and that risk was said to be at its greatest if "[the claimant] is using drugs" and "Drug misuse". The nature of the risk posed by the claimant was described as being "Extreme physical violence, including use of weapons and firearms.. aggression.. intimidation". These factors reflect his previous offences and in particular the offences for which he received a sentence of 8 years imprisonment. The contention that the decision to recall the claimant was flawed because of the failure to consider the claimant's explanation for deliberately smoking cannabis is a breach of his licence must be rejected particularly in the light of the exceptionally high risk factors set out in the June 2010 OASys report and in the Request for Recall document.

(iii) Failure to consider alternatives to recall

43. Mr. Jagadesham contends first that the terms of the claimant's licence clearly mandated the consideration of a specialist intervention and second that Probation Service Guidance and Guidance issued by the defendant showed that alternatives to recall had to be considered. He explained in a Note sent to me after the hearing that there is a presumption that alternatives to recall should be considered in all cases.
44. To fortify this point, Mr. Jagadesham points out that for many years, the Parole Board possessed a degree of supervisory responsibility over a decision by the Secretary of State to revoke a licence and this was described by Sir Igor Judge P (as he then was) as being "a valuable check on the original decision-making process" (Gulliver v The Parole Board [2007] EWCA Civ 1386 [44]). Since the coming into force of the Criminal Justice and Immigration Act 2008, the position is now different as the Parole Board will not adjudicate on the fairness of recall at all (see R (Seleh) v Parole Board [2010] EWHC 179 (Admin) [10]). So it is said on behalf of the claimant that anxious scrutiny is required of a decision of the defendant and I accept that submission.
45. This, Mr. Jagadesham contends, is of great importance where the liberty of an individual is in issue and I have explained in paragraph 18 to 23 the importance attached to this in the case of Saadi v United Kingdom. He points out that a decision to recall must be proportionate to the aim of avoiding risk to the public and that, as I have stated in paragraph 19 above, "the means used to impair the right or freedom and no more than is necessary to accomplish that objective" as explained by Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80.
46. In considering those submissions, it is necessary to bear in mind that the primary purpose underlying the power to recall is the protection of the public as has been stressed in the cases to which I have already referred, namely R (West) v Parole Board and R (McHale) v Secretary of State for Justice. It follows that the issue of proportionality that has to be considered in respect of the decision to order recall is whether it is necessary to protect the public as I have already explained in paragraph 25 (iii) above.
47. The Secretary of State is not obliged to consider alternatives provided that he or she focuses on the central issue and concludes that the safety of the public makes it necessary to order the recall of the prisoner who has been released on licence because the risk to the public cannot be contained in any other way, which restricts the freedom of the claimant less. That is precisely what was decided in Saadi in the passage quoted in paragraph 18 above.
48. In some cases, the aim of protecting the public might be achieved by imposing a condition in the licence that the prisoner does not enter a particular area or associate with certain individuals. Indeed, the decision to recall can only be necessary to protect the public if there is no other less onerous way of protecting the public.
49. Before considering the facts, it is necessary to bear in mind that this court is not a primary fact-finder and will only quash such a decision if no reasonable Secretary of State could have reached that decision or if it is unlawful. To determine whether a decision is Wednesbury unreasonable or unfair, this court would take into account not merely the importance of the right to freedom of the prisoner but also the risk to the public, which, as I have explained is the test of proportionality. I now turn to the facts of this case.
50. The Request for Recall report relating to the claimant explains why the defendant concluded that any alternative to recall such as a warning was unsuitable when it is stated that the reason for requesting the recall of the claimant was (with my emphasis added) that he:-

"is registered as a Level 3 MAPPA offender and is also registered as a Critical Public Protection Case. The index offences were linked to the misuse of illegal substances and it is felt that any use of substances indicates an increase in risk. Whilst it is recognised that this is the first positive drug that the [the claimant] has provided, he poses a very high risk of harm to the public. A key risk factor for [the claimant] is his drug misuse. It has previously been identified that [the claimant] can be volatile whilst under the influence of such substances. The index offence was linked to drug misuse as [the claimant] states that his friend was mis-sold cocaine and they went to the address to reclaim their money, there was a high level of violence involved in the offence an a female victim was threatened with an imitation handgun. Any return to drug misuse has been identified in the OASys as an indication that [the claimant] may be engaged in criminal activity".

51. It is also noteworthy that the "Request for Recall" document also stated that:-

i) "During a MAPPA meeting on the 2^nd June, an action was identified for Emma Turner stating that should there be any indication that [the claimant] is using illegal substances or tests positive that action will be taken for emergency recall";

ii) "The claimant's offending behaviour is directly related to drug misuse and he is aware that any use of substances will be reviewed very seriously";

iii) "It is felt that that this positive [drug] test indicates an increase in risk and should be dealt with accordingly" and

iv) The risk of serious harm if the claimant was to be released at the end of the 28 days in custody was assessed as "very high". It is noteworthy that in the June 2010 OASys report in the risk of Serious Harm Summary (page 59), it was also noted the risk was likely to be highest if "Adrian is using drugs".

52. It follows that the decision to recall the claimant was on the basis first that the claimant posed a very high risk of harm to the public, second that the misuse of drugs was a key indication of a return to offending behaviour and third that a positive result indicated an increase in the risk to the public.
53. It is of great importance that the Request for Recall report notes that it included that "have any alternative actions for recall been taken to secure compliance? If so how has the offender responded?" The response of the person completing the report was that "it is felt that given the risk that [the claimant] poses emergency recall should be undertaken". This indicates that it was decided that no alternatives were appropriate and that recall was necessary. The fact that the word "necessary" is not used does not undermine that conclusion bearing in mind that as Lord Browne-Wilkinson explained in the Choudhury case quoted in paragraph 25 (iv) above

"..the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt."

54. It can be inferred from this and from the reasons for recall which are set out in paragraphs 50 and 51 above that alternatives must have been considered but that the level of risk posed by the applicant meant that emergency recall was considered the only proper remedy as being necessary in the light of the risk to the public posed by the claimant. In my view in the light of the June 2010 OASys report and the duty on the defendant to protect the public, this was a decision which the defendant was entitled to reach and which cannot be impugned on any public law grounds. As I explained in paragraph 25 (vi) above, Lord Browne-Wilkinson has made it clear in the Choudhury case that "the jurisdiction to quash a decision only exists where there has in fact been an error of law" and the fact that there may only be an error does not lead to a quashing order. The submissions of the claimant's counsel fall a long way short of showing an actual error of law. If I had been in any doubt on this, my conclusion would have been fortified by the margin of appreciation given to the defendant, who has the specialized knowledge needed to assess the risk posed by the claimant. So this challenge fails but in case I am wrong, I shall consider the claimant's case which is that was an error of public law for the defendant not to have invoked specific alternatives to recall.
55. A. The claimant contends that the defendant failed to direct that the warning procedure be used as specified in the Probation Service Guidance that even for 'Prolific and other Priority Offenders', a warning letter should be the 'norm' in the event of one or even two positive drugs test; see Probation Circular 30/2006, Annex A, paragraph A2:-

"Where an offender is at risk of recall, for example having given a second positive test, or a positive test where recall has been put on hold because he is complying with treatment, then a warning letter is appropriate. Given that the sanction for a further positive test would be imprisonment, a warning letter from the ACO (or equivalent) should be the norm (emphasis added)".

56. B. The claimant's case is that the defendant's policy required him to consider the use of warnings; see the 2007 Standards and Implementations Guidance issued by the Ministry of Justice (National Standards for the Management of Offenders), Standard 2f.4:-

"When an offender who has not provided an acceptable explanation in advance does not keep an appointment or otherwise does not comply with a requirement of the sentence, and if Standard 2f.3 does not apply and an acceptable explanation has not been received, a written warning in the prescribed format is issued by the end of the tenth working day following the failure to comply unless: the failure to comply is indicative of: - [1] a serious, gross, wilful or fundamental refusal to comply or breakdown of the order/licence, or – [2] a significant rise in the risk of serious harm or likelihood of re-offending presented by the offender, or …[3] in relation to a post-release licence there have already been two written warnings issued in the preceding 12 months in which case the Offender Manager initiates enforcement action through a court or the Post Release Section of the Ministry of Justice, whichever is appropriate, by the end of the tenth working day following the failure to comply" (emphasis added).

57. The claimant's case is that warnings are only to be dispensed with in specific and pressing circumstances, which did not apply in the claimant's case but I am unable to agree with that for at least four reasons. First, Mr. Hough in his witness statement explains that these procedures are limited broadly to offenders with what he describes as "a history of drug and/or related acquisitive offending, typically drug addicts who commit burglary, mugging or similar offending to support their habits". I accept Mr. Hough's point that the claimant's offending does not fall into this category bearing in mind that the offence for which he received a sentence of eight years imprisonment entailed a targeted and well-planned trip while armed and accompanied by three associates seeking to terrorise a man from whom they had thought they were receiving cocaine.
58. Second, if the claimant's case was correct, then it would mean that irrespective of the risk posed to the public by an offender on licence if he has a positive drug test, he cannot be recalled to prison. That would undermine the entire purpose of the recalling procedure. Third, the claimant's case is not supported by either authority or principle.
59. Fourth and perhaps most importantly the need for a warning fails to take account of the exempting provisions first in Standard 2f.4 "where there is significant rise in the risk of serious harm or likelihood of re-offending presented by the offender" as well as second because Standard 2f.4 itself which states that it does not apply if Standard 2f.3 of the Standards and Implementation Guidance 2007 applies; that states:-

"When an offender who has not provided an acceptable explanation in advance does not keep an appointment or otherwise does not comply with a requirement of the sentence, and if the failure to comply indicates that the public is at substantially greater risk, the Offender Manager initiates expedited and urgent enforcement action immediately, through a court or the Post Release Section of the Ministry of Justice, whichever is appropriate" (emphasis added).

60. Indeed that is what was the position in this case because there was as result of the claimant's use of cannabis in the words of Standard 2f.4 a "significant rise in the risk of serious harm or likelihood of re-offending presented by the offender" for the reasons set out in the June 2010 OASys report as I explained in paragraph 36 above and which was the reason given for recall in the Request for Recall form. The same material also explains why Standard 2f.3 applies which set outs an exception to the requirement for a warning set out in Standard 2f.4 namely that "the [claimant's] failure to comply indicates that the public is at substantially greater risk". This was the position here as I explained in paragraphs 31 and 36.
61. I also agree with Mr Slater that the defendant was entitled not to consider whether to require the claimant to attend a drug rehabilitation facility or course because he had already completed drug awareness courses and drug trafficking courses in prison. The fact that the claimant relapsed within a few weeks of being released suggests these courses had a very limited beneficial effect on him. In addition, there is no evidence that a further drug rehabilitation course would have significantly reduced the risk to the public posed by the claimant. It is also suggested that the defendant should have warned the claimant before recall or as an alternative to recall. In this connection the claimant would appear to be relying on procedures which apply to offenders who breach the terms of a "drug rehabilitation requirement" because those offenders are not subject to custodial sentences and are therefore part of a community-based regime. I must reject the claimant's case because the unanswered witness statement of Mr Hough shows why the alternatives to recalling the claimant to prison were not appropriate. That is a further answer to the claimant's complaint but even if there had been evidence disputing Mr Hough's evidence, I would be obliged to accept the evidence of the defendant in accordance with the principles applicable to judicial review because as McCullough J explained in R (Cran & Others) v Camden London Borough Council (1995) 94 LGR 8, 12, when he stated in relation to a factual dispute on a judicial review application in which there had been no application to cross-examine any opponent "the court must, in those circumstances, fall back on the principle that where a relevant dispute cannot be resolved on the written material alone the facts must be assumed to be those which favour the respondent". In any event, I am quite satisfied that the defendant was entitled not to adopt an alternative to recall and there is nothing unfair about it.
62. In conclusion, this head of challenge fails because the defendant considered that the only way in which the public could be protected was by revoking the claimant's licence, which was the necessary remedy. Alternatively, in any event the defendant's unchallenged evidence is that none of the alternatives to recall suggested by the claimant's legal advisers has any merit in them. If the defendant was obliged to consider any of these alternatives but did not do so, it would have made no difference as the defendant would have been bound and indeed obliged to reject them.

V. Ground 3. Fettering of Discretion and failing to provide any adequate reasons for recall

63. The case for the claimant is that the decision of the defendant to recall the claimant was a consequence of the Offender Manager fettering her discretion because the Offender Manager had confirmed that it had been decided at the start of the claimant's licence period that if a single positive drug test was provided by the claimant, he would then be recalled to custody immediately and irrespective of the circumstances, of any explanation or of general compliance. So it is contended by the claimant that this runs contrary to the well-established principle that a decision-maker should not predetermine the exercise of his discretion.
64. Reliance is placed on the comments of Lord Reid on British Oxygen co. Ltd v Minister of Technology [1971] AC 610 at 625, where he stated that:-

"The general rule is that anyone who has to exercise a statutory discretion must not "shut his ears to the application" …I do not think there is any great difference between a policy and a rule. There may be cases where an officer or an authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal with a multitude of similar applications and then they would almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say…".

65. Thus it is said that by Mr Jagadesham that the Request for Recall Report shows that the Offender Manager appears to have been dictated to at the MAPPA meeting on 2 June 2010, which recorded that there would be an emergency recall for any indication of drugs use by the claimant. This, according to the claimant, amounts to a fettering of a discretion as is shown also by the failure to provide any reason for recall that was specific to the case of the claimant. The basis of that contention according to Mr Jagadesham is that the Secretary of State appears to adopt a blanket approach to all requests for recall whereby he will simply rubber-stamp any request for recall without providing reasons.
66. I am unable to accept that submission because the last sentence of the quote from Lord Reid's speech in the British Oxygen case set out in paragraph 63 above demonstrates that it is perfectly permissible to have a policy provided the decision maker is always willing to listen. In the present case, it is clear that the reasons which were given for the claimant's recall were specific to him and were based on his record of offending so as to provide a clear tailor-made assessment of the risk he posed and the relationship between his breach and the risk assessment.
67. I agree with Mr Slater there is no reason in principle why the Secretary of State should not be able to come to a preliminary view in individual cases provided that there is then an opportunity to scrutinise the case so as to ensure that any preliminary view remains appropriate. It seems clear that that is what happened in this case because the Offender Manager considered the breach in the light of the risk assessment of the claimant which led to the application for revocation at 11.11am on 12 July 2010.
68. The accompanying Request for Recall Report was detailed and did not rely solely on the preliminary view taken at the meeting but it was also supported by the line manager and by an Assistant Chief Officer. The matter was then considered by a Senior Case Worker within the PPCS in the Croydon Recall Team and he decided to revoke the licence. This was a case of a number of individuals looking on the facts and reaching a decision open to them. Insofar as the claimant contends that no consideration was given by these other people because there was some form of what Mr. Jagadesham repeatedly and persistently called "rubber-stamping", there is no basis for this allegation or for any suggestion that any of these people did not reconsider the Request for Recall, the claimant has no knowledge of this.
69. The challenge to the reasons is not sustainable bearing in mind that it is explained clearly why recall was necessary in the revocation of licence document when read with the Request for Recall form especially in the passages which I quoted in paragraphs 50 and 51 above. The reasons given are more than adequate and they satisfy Lord Brown's test of showing why recall "was decided as it was".

VI. Ground 4. The Legitimate Expectation Issue

70. Although this was the first point relied on by the claimant in his Grounds, it was not pressed in the oral submissions of Mr Jagadesham and so I will deal with this ground relatively briefly. The case for the claimant is that the decision of the defendant to recall the claimant to custody for a solitary positive drug test was in breach of licence condition 5(x) which provided that his "alcohol and drug misuse be closely monitored and should there be a problem he will be referred to a specialist agency immediately".
71. Thus it is said that the decision to recall the claimant was a breach of his legitimate expectation that the defendant would refer him to a specialist agency rather than to recall him especially as there had been several negative drug tests. Mr Jagadesham also said there was a MAPPA meeting behind closed doors at which those present decided to go behind the terms of the claimant's licence and the stipulations of the Parole Board by requiring the urgent recall of the claimant to prison rather than by making a reference to a specialist agency. So it is contended that the Probation Service and MAPPA bypassed the statutory policy requirements, which should have compelled them to seek the Parole Board's approval for any change in the licence.
72. I am unable to accept the argument that the decision to recall the claimant to prison was a breach of any legitimate expectation for at least three reasons.
73. The first reason is that the basis of a legitimate expectation must be a representation which is "clear, unambiguous and devoid of relevant qualification" (per Bingham LJ in R v IRC ex parte NFK Underwriting Agents [1991] WLR 1545 at 1569g, which was cited with approval by Lord Hoffmann in R (Bancoult) v Secretary of State (No.2) [2009] 1 AC 453 at 488) [60]). In this case, clause 5(x) is imprecise because it is unclear as to what is meant by the words "should there be a problem he will be referred to a specialist agency immediately". Indeed there is nothing in those words or in that provision which precludes recall to prison or requires that the specialist agency must be outside the prison.
74. A second reason is that a condition must be construed in the context of other conditions. Lord Hoffmann explained in R (Zeqiri) v Secretary of State [2002] UKHL3 that:-

"44…an alleged representation must be construed in the context in which it is made. The question is not whether it would have founded an estoppel in private law but the broader question whether… a public authority acting contrary to the representation would be acting "with conspicuous unfairness" and in that sense abusing its power".

75. I agree with Mr Slater that the relevant context for considering clause 5(x) were the remaining licence conditions. These include statements in clause 5(vi) that the claimant must:-

"be well behaved, not commit any offence and not do anything which could undermine the purposes of your supervision, which are to protect the public, prevent you from re-offending…".

76. Furthermore clause 7 of the licence condition warned the claimant that:-

"If you fail to comply with any requirements of your probation supervision (set out in paragraphs 3, 4 and 5 above), or if you otherwise pose a risk to the public, you will be liable to have your licence revoked and be recalled to custody".

77. In those circumstances, it is quite clear that the licence conditions made it explicitly and unambiguously clear that committing an offence and/or behaving badly and/or undermining the purposes of the supervision under the licence agreement would make the claimant liable to have his licence revoked "and be recalled to custody".
78. I readily agree with Mr Slater that it is difficult to understand how the claimant upon reading those conditions, could have had a reasonable expectation that if he were to misuse drugs that he would not be liable for recall. In addition the defendant could not be said to have been acting with "conspicuous unfairness" referred to by Lord Hoffmann by deciding to recall the claimant.
79. A third reason why I cannot accept that the Secretary of State acted in breach of the claimant's legitimate expectation in recalling him to prison is that the Parole Board imposed the conditions but even if there was a legitimate expectation, it would not be protected if it required a public authority, such as the defendant, to act contrary to the terms of a statute. As I have explained, the Secretary of State has and had obligations under CJA 2003 s254(1) which require him to recall prisoners in order to protect the public.
80. The consequences of this is that insofar as clause 5(x) of the licence create a legitimate expectation. it would not and could not require the Secretary of State to act contrary to his duties (see R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115, at 1125 per Peter Gibson LJ). I therefore reject this contention.

VII. Conclusion

81. For all those reasons, this application must be dismissed.