England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/07/2013

Mr Justice Kenneth Parker :

Introduction

1. The Claimant, Ashley Foster, challenges the decision of the Secretary of State for Justice to refuse to allow him an oral hearing as part of his appeal against recall to prison after he had been released on Home Detention Curfew ("HDC").

The Legislative and Procedural Background

2. It is convenient first to set out the legislative and procedural background. I adopt gratefully what follows largely from the judgment of Elias LJ (with whom Pill LJ and Patten LJ agreed) in R(Whiston) v Secretary of State for Justice [2012] EWCA Civ 1374 ("Whiston").
3. Prisoners who are subject to a determinate prison sentence may be released under two different kinds of licence. For sentences of twelve months or more, they have the right to be released on licence after having served half that sentence: see section 244 of the Criminal Justice Act 2003 ("the 2003 Act"). This portion of his sentence, which by s 244(3) is termed the "custodial term", has to be served by the prisoner before he is entitled to be released on licence.
4. However, sometimes prisoners may also be released on licence even during the custodial term. This power is conferred by section 246 of the Act which, so far as is relevant, is in the following terms:

i) Subject to sub-sections (2) to (4), the Secretary of State may –

a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period . . . .

ii) Sub-section (1)(a) does not apply in relation to a prisoner unless –

a) the length of the requisite custodial period is at least six weeks, and

b) he has served –

i) at least four weeks of that period, and

ii) at least one-half of that period.

5. Section 250(5) provides that the licence pursuant to section 246 must be subject to a curfew condition in accordance with section 253 which, ignoring exceptions and points of detail, is as follows:

i) . . . a curfew condition is a condition which –

a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified . . . and

b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.

ii) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).

iii) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244.

As sub-section (3) makes plain, the curfew condition cannot be made to operate beyond the period of the custodial term when the prisoner would in any event be entitled to be released. Release on licence of post-custodial term prisoners may exceptionally have a curfew condition for those identified as MAPPA level 3 cases: section 250(4)(b) of the Act; art 3(2)(b) of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005/648, PC 29/2007 Annex A and PSO 6000 Chapter 14. Typically the place specified in the licence is a person's home; hence the reason why the scheme is known as the "home detention curfew scheme".

6. Under section 249 a licence, whether pursuant to section 244 or 246, remains in place until the end of the determinate period of the sentence unless before then the licence is revoked and the prisoner recalled. However, any home detention curfew provisions only remain in place until the end of the custodial period. (Prisoners sentenced to fewer than twelve months will be released unconditionally at the half-way point and will not thereafter be subject to any licence.)
7. The Secretary of State may revoke a licence and recall the prisoner pursuant to two different statutory provisions. First, section 254 gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. If that power is exercised, and the prisoner is not automatically released under section 255(B) of the Act, it must be considered by the Parole Board who will determine whether the recall should be confirmed.
8. Second, section 255 confers a specific power on the Secretary of State to revoke a section 246 licence. However, that power can only be exercised whilst the curfew condition is in force, which means until the point when the prisoner would have been entitled to be let out on licence as of right. Thereafter, the licence has to be revoked under section 254. There is no review of the section 255 power by the Parole Board, although there are certain procedural safeguards afforded to the recalled party. The section, so far as is material, is as follows:-

"Recall of prisoners released early under section 246

(1) If it appears to the Secretary of State, as regards a person released on licence under section 246 –

(a) that he has failed to comply with any condition included in his licence, or

(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence,

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

254 Recall of prisoners while on licence

(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2) A person recalled to prison under subsection (1)—

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

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

[…]"

9. In Whiston the issue was whether the recall to prison under section 255, without a right of review by the Parole Board or any other judicial body, was consistent with Article 5(4) of the European Convention on Human Rights ("the Convention"). However, for determining that issue the critical question was whether the recall from HDC constituted a fresh deprivation of liberty or whether that renewed detention remained justified by the original sentence of imprisonment. The answer to that question depended upon the nature, quality and purpose of the liberty afforded to a prisoner who was made subject to such a licence. Elias LJ then made this analysis of the nature, quality and purpose of HDC:

"31. I am not persuaded that the release on home detention curfew is properly to be viewed as the restoration of liberty sufficient to engage art 5 if and when the prisoner is recalled to prison. It is true that West shows that the mere fact that the liberty is conditional on compliance with the conditions of the licence, and is to that extent precarious, does not prevent it amounting to sufficient liberty to engage art 5(4) when the prisoner is denied it. But it seems to me that release on home detention curfew is much more closely integrated with the original sentence than is release as of right once the custodial period has been completed. The curfew is a compulsory feature of the scheme and if it cannot be enforced, the licence must be withdrawn and the prisoner recalled, irrespective of the fact that the prisoner has honoured the conditions of his licence. Indeed, that is this case. The purpose of granting such freedom to the prisoner is to help him integrate into society. In my view, it is properly to be seen as a modified way of performing the original sentence imposed by the judge; the recall simply restores the primary way in which it was assumed that the sentence would be served. This was essentially the basis on which Collins J found that art 5(4) was inapplicable in the Benson case (para 19)….

32. I do not suggest that someone subject to equivalent restrictions on his liberty in other circumstances, for example as part of bail conditions, would be unable to claim that he had lost his liberty if he were to be imprisoned. Article 5(4) would no doubt be applicable to imprisonment for alleged breach of the licensing conditions in those circumstances. But in a context where the licensing arrangements are made as an alternative to compulsory detention, the question is whether the link with the original sentence imposed by the judge is broken. In my view, it is not and therefore the conditions of art 5(4) are satisfied by the original trial.

33. I recognise that it can be said that just as in the West case, new facts have to be established before the prisoner can be recalled. But in my view that is not of itself sufficient to engage art 5(4) because the highly restricted liberty inherent in the home detention curfew scheme is so intimately connected with the original custodial sentence. Nor do I believe that Lord Brown had this scheme in mind when he made the observations he did in the Black case (see para 27 above). I believe he was considering the licensing arrangements under the Criminal Justice Act 1991 considered in West when long term prisoners could be released on discretionary licence after serving half their sentence on precisely the same terms as they would be released as of right after serving two-thirds. I should add that I wholly reject a submission of Mr Southey that Lord Brown's remarks, made in passing in his speech, were binding on us."

10. These passages are of great importance in this claim because they establish, if I may respectfully say, with the utmost clarity, the legal context in which the challenged decision was taken. I draw attention to paragraph 33 of the judgment, because essentially the same argument based on Lord Brown's observations was advanced in this appeal, and must be rejected at the outset for the same reasons.
11. All prisoners released on HDC must have a licence that includes standard curfew conditions. The curfew must be electronically monitored and the curfew conditions in the Claimant's case required him to remain at his place of curfew from 7.15pm each evening until 7.15am the following morning. Condition 9 stated:

"Your compliance with the conditions of the [HDC] will be monitored by SERCO as the supplying company. You must provide the supplier with access to the curfew address to install and check the monitoring equipment and electronic tag. Such visits will be made during your curfew hours [that is 7.15pm – 7.15am] but not between midnight and 6.00am. However, the supplier may visit the curfew address between midnight and 6.00am in order to investigate a reported violation." (Emphasis added)

12. In a witness statement for these proceedings Chris Potter, HDC policy manager with the Sentencing Policy and Penalties Unit ("SPPU") at the Ministry of Justice, gave further information about the HDC monitoring procedures:

"9. Pursuant to contracts entered into by the Secretary of State, the responsibility for installing and maintaining the electronic monitoring equipment and for the monitoring itself rests with individual private sector contractors. Some time before release, the contractor will be notified of the release of the prisoner who will generally be required by a licence condition to arrive at the release address by 3pm on the day of release and await the contractors' visit to install the equipment. The contractor will attach the tag and install the home monitoring unit (HMU), set the range at which the two will communicate, and check that the equipment functions properly before leaving. Thereafter, the tag will communicate continually with the HMU when in range in order to alert it to its presence and integrity. These alerts are then relayed automatically to the monitoring centre operated by the contractors who will act on any alerts to curfew or equipment violations.

10. The contractor does not have the authority to revoke a licence but will conduct the initial investigation into any apparent violations and may deal with relatively minor violations, such as an initial, short, unauthorised absence, without reference to the Secretary of State. Depending on the circumstances, the contractor might, for example, authorise an absence after the fact (if satisfied that the absence was for a legitimate reason, eg an urgent hospital visit) or issue a warning letter (if not so satisfied). They will refer more serious violations, such as an accumulation of further unauthorised absences after a warning, to the Secretary of State for a decision on revocation. In every case where there is an indication that the monitoring equipment has been tampered with, the contractor must visit to investigate within a matter of hours, and the subject is required to permit the contractor access to do so, by the conditions attached to the licence. Where the investigation confirms that the equipment has been removed or damaged, as opposed to it having failed, the contractor must refer to the Secretary of State to consider revocation.

Breach of HDC Licence Conditions (Overview)

11. The referrals, or "breach reports" will be sent by the monitoring contractor to the Public Protection Casework Section (PPCS) at the National Offender Management Service (NOMS) headquarters. PPCS will then consider whether to revoke the licence and recall to custody, using section 255 CJA 2003. The consequence of this type of recall (as opposed to recall under section 254 CJA 2003) is that the prisoner is only liable to be detained until the half-way point of sentence when he must be released by virtue of section 244 CJA 2003 (and on licence if serving 12 months or more). In practice this means that the periods involved in any recall will be fairly short. By definition they must be shorter than the period on HDC which itself can be as little as 2 weeks and never more than 4½ months…

12. If the prisoner disputes the reasons for his recall he may submit representations to the Secretary of State who will investigate the circumstances and obtain all relevant evidence relating to the recall. If it is established (as a matter of fact that there has been no breach (e.g. faulty equipment or a mistake by the monitoring contractor); or that there was a justifiable and valid reason for the breach (e.g. the offender was absent during the curfew period due to being in hospital) then the Secretary of State will allow the appeal and re-release the prisoner to complete his HDC period.

Recall and Appeals Processes

13. The procedure is as follows:

a. In the event of significant breaches of curfew conditions in licences, the monitoring contractors notify the Public Protection and Casework Section ('PPCS'). Decisions are then taken by PPCS as to whether prisoners should be recalled for breaching their curfew conditions.

b. Prior to deciding whether or not to recall a prisoner for breaches of HDC licence 'curfew' conditions, PPCS may contact the prison establishment and request copies of documentation, including that which was used to assess the prisoner's eligibility for release on HDC.

c. Decisions to recall are made according to the facts which obtain in any particular case at the time. Relevant factors for the decision include: the frequency and duration of any breaches of curfew conditions; evidence of tampering with the monitoring equipment; any explanations provided to monitoring contractors; and information provided by the prison establishment.

d. If a decision is made to recall a prisoner to custody for breach of a curfew condition in an HDC licence, PPCS notifies the police and requests that the prisoner is returned to prison custody.

e. Within one working day of a prisoner's return to custody for breach of a curfew condition in a HDC licence, PPCS faxes the prison establishment where the prisoner is held with details of the action that must be taken by the prison. Included with that fax is a letter to the prisoner setting out the reasons for his recall, and details of the relevant appeal process that the prisoner may follow. This information is referred to as the 'recall pack'.

f. The prison must supply the recall pack to the prisoner within one working day of receipt of the same and confirm to PCS that this has been done.

g. On receipt of the recall pack the prisoner has the option of indicating whether or not he intends to appeal against the recall. In the event that the prisoner intends to appeal, PPCS alerts the monitoring contractor.

h. Any representations against recall that the prisoner may make, or which are made on the prisoner's behalf, are forwarded to PPCS.

i. PPCS will then pass the prisoner's representations, together with all relevant documentation (e.g. the monitoring logs, reasons for recall, any witness statements etc.), to the 'HDC Appeals team' in the Sentencing Policy and Penalties Unit in the Ministry of Justice. The Appeals team provide, on behalf of the Secretary of State, a route of appeal for recalled HDC prisoners that is independent from the team in NOMS responsible for the recall decisions. The role of the Appeals team is to consider the prisoner's representations and conduct an investigation to establish the facts of whether or not there had been a breach of the curfew conditions and, if so, whether there may have been reasonable and justifiable reasons for the breach.

j. Where the prisoner has been recalled under the powers provided by s255(1)(a) – breach of curfew conditions – the Appeals team investigate whether the prisoner's representations should be accepted or not. For example, if the breach involves being absent from the curfew address during the curfew period and the prisoner claims that this was through no fault of his own (e.g. due to an emergency hospital admission) the Appeals team will gather evidence to establish the truth of the matter (e.g. by contacting the hospital) and if it transpires that there was a justifiable reason for the absence, then the appeal will be allowed and the holding prison will be instructed to re-release the prisoner on HDC. If, however, the team conclude that the prisoner was correctly recalled, he will remain in custody until the half-way point in sentence when he would then be automatically released.

….

m. Where the recall is under s255(1)(b) – inability to monitor – the prisoner may apply to the governor to be re-released on HDC provided that he can provide a suitable address. For example, if the curfew address is the prisoner's parents' home and they withdraw their consent for him to remain there, then he will be recalled under s255(1)(b) if there is no other suitable address for him to be curfewed to. If his parents subsequently agree that he can return to their home, and probation confirm that the address remains suitable, the governor can re-release on HDC without the need for any appeal to be submitted.

Statistics regarding recalls from release on HDC licence

14. In the two year period April 2011 to April 2013 the SPPU Recall Appeals team received 190 Appeals against recall for breach of HDC conditions. Of these, 27 cases were for PID tamper (which generally take longer to determine). The overall average length of time to determine each case was 15 calendar days. This can be broken down to an average of 14 calendar days for non-PID tamper cases and 24 calendar days for PID tamper cases. Overall, 35 cases (18%) were allowed and the average time in an allowed case was 13 calendar days."

The Facts in This Case

13. The Claimant was sentenced to 3½ years imprisonment for possessing a controlled drug with intent to supply. He was released on HDC from HMP Wellingborough on 2 August 2012.
14. On 21 August 2012 Serco issued a warning letter following a tamper violation alert on 20 August. On examination there was a minor kink on the tag strap, of which the Claimant said he was unaware. A new tag was provided but a new tamper violation alert occurred on 23 August 2012 at 1720. An employee of Serco visited the Claimant's address on 00.43 on 24 August 2012.
15. On 24 August 2012, following the procedures outlined above, the Secretary of State revoked the licence pursuant to section 255(1)(a) of the Act and recalled the Claimant to custody. The licence was revoked because of refusal to allow a check of the monitoring equipment as required by condition 9 of the licence. In a letter to the Claimant the same day, the Secretary of State explained the reasons for the decision, stating in particular that:

"It has been reported by the monitoring contractors (Serco) that their field officers were unable to gain access to the approved curfew address on 24 August 2012 at 00.43 to investigate a suspected PID tamper. It is a condition of your licence that you must allow the contractor access to the property to install or check the monitoring equipment. The Secretary of State was therefore satisfied that, without this access, it was not possible to electronically monitor your whereabouts in the community."

16. As a result of the revocation, the Claimant was informed that he would serve in prison a period of time equivalent to the number of days outstanding on the curfew period of his licence on the day it was revoked. Pursuant to section 246(4)(g) of the Act, he was informed that the revocation of his licence meant that he would be ineligible for HDC for the duration of his sentence.
17. The Claimant appealed the revocation under the procedures explained above. On 5 October 2012 his appeal was refused.

The Basis upon Which the Appeal was Refused

18. A PID tamper alert was first recorded at 5.20pm on 23 August 2012, and the position remained the same by 7.15pm (the beginning of the next curfew period). Serco telephoned the Claimant for an explanation. He said that he was at the curfew address and that the tag was around his ankle. Serco decided to visit the Claimant to check that the equipment was in working order. The Serco officer arrived at the curfew address at 43 minutes after midnight on 24 August 2012. This was within the curfew period and to be expected, given that investigation of a suspected tampering with the tag was exceptionally provided for between midnight and 6am. The Serco officer explained to the Claimant the reason for the late visit and also the consequences if the Claimant did not allow the officer to check the equipment. The Claimant indicated that the officer should return the next morning. The officer rejected that indication, drawing attention in particular to the fact that investigation visits were made only during curfew hours (that was in the circumstances before 7.15am on 24 August 2012). As a result the officer was not able to check the Claimant's tag, and reported this event to the appropriate personnel in Serco. The investigating officer had given a written account of what he said had happened at the investigation visit.
19. The Claimant's version of what happened on the investigation visit was somewhat different and is best captured in his witness statement in this claim:

"12. Again, on 23 August 2012 I did not tamper with my tag at all. I went to bed and was sleeping on a sofa bed in my sister, Tsehai's room. I was woken by my sister, Tsehai, who shook me to wake me and informed me that the 'tag' man was there. I also heard Angel shout at me that the 'tag' man was there.

13. I went downstairs to speak to the Serco employee, who was waiting at the bottom of the stairs. I sat down on the stairs and told the Serco employee that I was tired, had just been woken and it is very late. The Serco employee agreed to return the following morning to check the equipment. He did not attempt to explain the consequences of not checking the equipment there and then. Our conversation was limited to him agreeing to return. I was not aggressive or confrontational.

14. On reflection and in light of his subsequent action in breaching me, I think that he simply did not care. I think he agreed and walked away knowing he was going to recall me but wanting to make his job easier and not bothering to explain the consequences or engage with me."

20. Two sisters of the Claimant submitted statements to the effect that they were present when the Serco officer visited to investigate and that the Serco officer agreed that he would come back to the curfew address in the morning. The Claimant's version of events, as supported by his two sisters, was before the appeal body. However, the account given by the Serco officer was accepted, and the revocation was consequently upheld.

The Claimant's Case

21. Mr Hugh Southey QC, on behalf of the Claimant, rested his case centrally on R(West) and R(Smith) v Parole Board [2005] UKHL 1 [2005 1 WLR 350 ("West"). The first claimant in that appeal had received a determinate sentence of three years' imprisonment and had been released on licence after having served the custodial term of 18 months. The claimant in the second appeal had received a determinate sentence of 6½ years' imprisonment and had been released on licence having served the custodial term of two-thirds of the full sentence. The licence in each case had been revoked on the ground that the claimant had breached one or more of its conditions, and the claimants had consequently been returned to prison.
22. At that time the applicable provision was section 39 of the Criminal Justice Act 1991 ("the 1991 Act"). The Home Secretary had the power to revoke a prisoner's licence and recall him to prison either on the recommendation of the Parole Board or without such recommendation where it appeared expedient in the public interest to recall before it was practicable to consult the Parole Board. Under directions issued by the Home Secretary the Parole Board had to consider whether the prisoner's continued liberty presented an unacceptable risk to the public of further offences being committed. Any prisoner recalled under section 39 of the 1991 Act had to be given the reasons for it, any documents relevant to the recall decision and informed of his statuary right to make written representations to the Parole Board. By the time of the appeal in West to the House of Lords, the crucial issue had in essence narrowed to whether or not the claimants had a right to an oral hearing before the Parole Board. It might be noted en passant that even before West the view among knowledgeable commentators appears to have been that, although there was no statutory entitlement to an oral hearing before the Parole Board, the Parole Board retained a discretion to hold such a hearing where fairness dictated it to be necessary (see Livingstone and Owen, Prison Law, Second Edition, 1999, pages 362-363, referring to R v Parole Board, ex p Davies, unreported, 25 November 1996, where Collins J proceeded on the basis that the Parole Board had such a discretion in the case of a recalled mandatory life prisoner, and the authors stated that the principle was of general application).
23. Lord Bingham of Cornhill, with whom Lord Walker of Gestingthorpe and Lord Carswell agreed, Lord Hope of Craighead stating similar reasons on this aspect, gave the principal speech in West. Lord Bingham first observed that in considering what procedural fairness in the relevant context required account had to be taken of the interests at stake. Lord Bingham expressly noted that a short-term prisoner who had served half his sentence (such as the first claimant) and a long-term prisoner who had reached his "non-parole date" (such as the second claimant) had a statutory right to be free: a conditional right, but none the less a right, breach of which would give an enforceable right to redress (with reference to R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19). Lord Bingham then stated his conclusions in the following paragraphs:

"31.  While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision. The possibility of a detainee being heard either in person or, where necessary, through some form of representation has been recognised by the European Court as, in some instances, a fundamental procedural guarantee in matters of deprivation of liberty: De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, para 76; Winterwerp v The Netherlands (1979) 2 EHRR 387, para 60; Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, para 51; Waite v United Kingdom (Appn No 53236/99, 10 December 2002), para 59. Although ruling in a very different legal context, the Supreme Court of the United States, in a judgment delivered by Brennan J in Goldberg v Kelly 397 US 254, 269 (1970) helpfully described the value of an oral hearing:

"Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second-hand presentation to the decision-maker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore, a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context, due process does not require a particular order of proof or mode of offering evidence ….."

…

35.  The common law duty of procedural fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."

24. On the facts of the respective cases Lord Bingham held that the relevant issues raised in both recalls could not fairly be resolved without the Parole Board offering the prisoner an oral hearing of his representations against revocation of his licence.
25. Mr Southey QC submits that the position is not materially different in this case. The Claimant, once released on HDC, had a conditional right to liberty. The Claimant's written representations raised an issue of "credibility" (Mr Southey's expression), and these representations could not fairly be resolved without the offer of an oral hearing.
26. Mr Southey QC also pointed out that oral hearings had been held to be appropriate in contexts outside release following termination of the custodial period (as in West). He referred to categorisation decisions. I recognise that the courts have long accepted that the principles of procedural fairness apply to categorisation decisions. Category A prisoners, in particular, are subject to a detailed set of security procedures commensurate with the aim of making escape impossible for those prisoners identified as posing a very high risk to the public. Unlike the other security categories, category A status is decided centrally, by the Directorate of High Security Prisons at Prison Service headquarters. Category A decisions have a very serious, indeed often determinative, impact on release and also on the conditions in which prisoners are held, as was first recognised judicially in R v Secretary of State for the Home Department ex p Duggan [1994] 3 All ER 277 (DC). Only the Director of High Security may downgrade a prisoner from category A. It has been recognised that, in view of the very grave impact of category A decisions, a high standard of procedural protection is appropriate, which may require in exceptional cases an oral hearing: see R(Williams) v Secretary of State for the Home Department [2002] 1 WLR 2264 (Parole Board on review recommended downgrading but DHSP, at a time when there was only a "gist" disclosure in line with Duggan, decided not to re-categorise); R(H) v Secretary of State for Justice [2008] EWHC 2590 Admin (a tariff expired life prisoner, in a Protected Witness Unit where opportunities for offending behaviour work were limited, and the local prison had twice recommended downgrading); R(Wilkinson) v Secretary of State for Justice [2009] EWHC 878 (Admin) (oral hearing where the Parole Board, and the Local Advisory Panel, had recommended downgrading of a post tariff mandatory life prisoner who had been category A for 20 years). It appears, however, that oral hearings to determine category A status nonetheless remain extremely rare.
27. Decisions to recategorise indeterminate, particularly life prisoners, who have served their minimum term, from category C to category B, or, even more critically, from category D (open conditions) to category C, will also clearly have a serious impact on the prospects of release, because such prisoners are generally required to spend time in an open prison before being released by the Parole Board. The same considerations, however, plainly do not apply to categorisation decisions affecting determinate sentence prisoners, even in respect of recategorisation from D to C, although proper reasons should be given and an opportunity afforded to make representations about the final decision through the prison complaints system: see, for example, R(McLeod) v HM Prison Service [2002] EWHC 390 (Admin); R(Palmer) v Secretary of State for the Home Department [2004] EWHC 1817 (Admin).

Decision

28. As the speech of Lord Bingham in West makes plain (and as Lord Steyn famously observed quite generally), the context in which the present issue arises is of considerable significance. The interests at stake must also be carefully analysed. It will be recalled that in West both claimants had served their custodial terms and each had a statutory right to his release from prison. If the Governor, whether on his own initiative or under directions from others, refused to release a prisoner at that point, the prisoner was illegally detained at common law, and he had an unanswerable claim for substantial damages, even if the Governor had understandably relied on a binding judgment of the Court of Appeal in (mis)calculating the prisoner's statutory release date. By contrast, no prisoner has a similar automatic right to be released on HDC. Indeed section 246(4) of the 2003 Act contains no less than nine categories of statutory exclusion from HDC, including, for example, violent and sexual offenders serving an extended sentence imposed under section 227 or 228 of the Act, prisoners subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 and prisoners liable to removal from the United Kingdom.
29. Furthermore, prisoners serving four years or more, though not statutorily excluded, are generally regarded as not suitable for HDC (and must be informed of the position at the outset of their sentence), as are prisoners who are only potentially liable to deportation (Jama v The Ministry of Justice [2012] EWHC 533 (QB), paragraphs 8-11). In addition, the Governor, as the delegated decision maker of the Secretary of State for the purposes of HDC, may refuse HDC if, for example, there is an unacceptable risk to a victim or the public more generally, or there is a likelihood of re-offending, or there is no suitable curfew address or it is not considered that the prisoner will comply with curfew conditions. As Mr Southey said in oral argument, the decision to grant release on HDC, even with the statutory exclusions disregarded, is one laden with a wide area of discretionary judgment in the decision maker.
30. The Court of Appeal has furthermore now closely analysed the nature, quality and purpose of release on HDC in Whiston (see paragraph 9 above). Release on HDC is in essence part of the original custodial term imposed by the sentencing court; it is incorrect to analogise the release on HDC with that conferred by statute at the termination of the custodial term. Even before Whiston the High Court had held that release on HDC (as distinct from recall) did not engage Article 5(4) of the Convention: see Mason v Ministry of Justice [2008] EWHC 1787 (Admin); R(Francis) v Secretary of State for Justice [2011] EWHC 1271 (Admin). Compared generally with periods of liberty following statutory release on termination of the custodial term, the periods of liberty consequent upon HDC are substantially shorter. The maximum period is 4½ months but, on my calculations, some periods may be as short as 2-4 weeks and, even for those serving sentences between 4 and 12 months, the period of release on HDC may range between only one and three months.
31. Recall for breach of HDC conditions does not in any way affect the prisoner's statutory right to be released after having served the custodial term. It is notable also that breach of the curfew conditions is in itself sufficient to justify recall, even if the prisoner does not pose a substantial risk to the public (if he is considered to do so, recall may be affected under section 254, with potentially serious consequences for his ultimate release from prison: R(Ramsden and Naylor) v Secretary of State for the Home Department [2007] ACD 51. That approach reflects the fact that the prisoner, though in the community, is nonetheless still serving his custodial term, and is thus expected to comply scrupulously and without fail with the terms of his release. This contrasts with the recall of prisoners who have served the custodial term and have been released by reason of the statutory right to be at liberty, where the emphatic criterion for recall is the perceived risk to the public (see below).
32. The nature, quality and purpose of release on HDC are also reflected in the procedures for grant and recall. As noted above, the decision to grant release on HDC is an administrative one, taken by the Governor (as delegate of the Secretary of State). The Parole Board, which has a crucial role to perform in the release of prisoners serving indeterminate sentences, has no involvement at all as regards release on HDC. Similarly, the decision to recall is essentially administrative, carried out under the procedures earlier explained in detail. The Parole Board again has no involvement. (The attempt to bring return to custody following release on HDC within Article 5(4), and so potentially trigger supervision of this area by the Parole Board, of course failed in Whiston). By sharp contrast, the Parole Board has a pivotal role also to play in the recall of prisoners who have served the custodial term of their sentences. Under section 254 of the 2003 Act (with effect from 14 July 2008) the Secretary of State may recall a prisoner released on licence but the Parole Board must consider representations against recall and, in an appropriate case, direct the release of a recalled prisoner. Section 256 provides similarly that the Parole Board may, if it does not release the recalled prisoner immediately, fix a date for future release. There is an elaborate timetable for the expeditious and efficient disposal of such cases, including scope for an oral hearing before the Parole Board (which it appears will then follow the normal procedures that it adopts in respect of recall of prisoners serving indeterminate sentences).
33. The emphasis in those cases is on risk to the public. The Parole Board needs to consider risk to the public in terms of the likelihood of the prisoner re-offending and whether any risk management plan prepared by the Probation Service is sufficient to manage such risk. Indeed certain prisoners whom the Secretary of State does not consider pose a risk of serious harm will be re-released automatically by the Secretary of State after 28 days return to custody (section 255A of the Act). With a similar rationale, if the Board does not direct release, the Secretary of State must refer the case back for further consideration within the following 12 months, and at any subsequent reviews the Parole Board has power either to recommend release or fix future dates for release. These procedural safeguards plainly reflect the fact, in contrast to release on HDC, that the prisoner has served the custodial term of his sentence, and recall may very substantially lengthen the actual time, beyond the custodial term, that he will ultimately spend in prison.
34. In my view, this context, as particularised above, and the foregoing analysis of the interests at stake, require that this Court must very closely scrutinise any claim that justice dictates an oral hearing by the decision-maker (who is not, it should be emphasised, the Parole Board in these cases) in respect of recall of a prisoner released on HDC. There is also another aspect of relevance that also calls for such very close scrutiny. The decision to refuse release on HDC in the first place has consequences that are as potentially serious, if not more serious, for the prisoner than those inherent in recall decisions. In such a case the prisoner is denied any period of liberty before the end of his custodial term; even a prisoner recalled from release on HDC will have had some period of liberty before that date. Mr Southey QC argued that the situations were materially different, because the recalled prisoner had a "right" to HDC, with which recall interfered, whereas the prisoner denied release on HDC had no such right. I regard that proffered distinction as semantic. On a proper analysis, and even bearing in mind the wide area of discretionary judgment (see paragraph 29 above), there may well be cases where the claim for release on HDC is compelling, but has been denied by incorrect decision-making. Similarly, there will be cases where subsequent events conclusively show that release on HDC should never have been allowed in the first place, and that recall has simply returned the prisoner to where he should properly have remained. Without close scrutiny of the present claim, therefore, there is a real risk of future representations that oral hearings were required when a prisoner was to be denied release on HDC, and there was alleged to be some issue of fact or of assessment where, it was asserted, such a hearing might make some contribution. There are very considerable numbers of refusals to release on HDC each year. Without close scrutiny of this claim, the prospect of oral hearings on anything like a significant scale in respect of refusals to release on HDC would raise very serious questions of resources and costs within the overall system for the administration of prisons and the management of prisoners.
35. In the context as explained above, it is necessary to determine whether the recall of the Claimant from release on HDC in the circumstances of this case dictated that there be an oral hearing before the decision maker. Ms Nathalie Lieven QC, on behalf of the Secretary of State, accepted that, notwithstanding the limited right given by Parliament in the 2003 Act to make written representations, the Secretary of State had a discretion to allow an oral hearing when fairness so dictated. However, she submitted that this was not such a case. I agree for the following reasons.
36. First, the curfew condition makes it plain that the prisoner must allow, exceptionally, access and investigation of the tag at any time between midnight and 6am when there is a reported violation. This requirement is strict and important. Enforcement of the curfew is fundamental to release on HDC and the accurate and continuous efficacy of the tag during curfew hours is fundamental for effective enforcement. The fact that access and investigation is extended to what might be considered, in a different context altogether, unsocial hours, simply reinforces the importance of this curfew condition. It would require the most exceptional circumstances, the nature of which do not need to be explored here, to begin to justify a refusal by the prisoner not to allow access and investigation.
37. Given the strictness and importance of the curfew condition, a visit from the Serco officer for the express purpose of investigating a reported violation is just that. It is not to be treated as a standing opportunity for the prisoner to seek to negotiate with the visiting Serco officer his own individual terms and conditions of access and investigation. The Claimant knew, or ought to have known if he had given it a moment's thought, the strict and important nature of the obligation imposed on him. In his case the need for timely and effective investigation was all the more pressing for there had already been a very recent reported violation, that had required investigation, and he had received a specific warning about his obligation to comply with this curfew condition. Again he knew, or ought to have known, that his full cooperation with the investigation was imperative.
38. However, on his own version of events, instead of immediately cooperating with the investigation, he opened a negotiating stand with a view to deferring the investigation to some later (unspecified) time. He represented that the hour was "late" and that he was "tired". However, it was 43 minutes past midnight, a time that was not inordinately late for many mundane purposes and was certainly well within the contemplated time for investigation of a reported violation under his curfew conditions. The relevance of the Claimant's alleged state of fatigue to the investigation is not immediately obvious.
39. All of the foregoing, which in itself supported a finding of breach, was established, and an oral hearing in respect of this aspect would have been entirely pointless.
40. Furthermore, the Claimant's version, supported or not, made no sense on any objective analysis. On that version, the Serco officer had attended at 40 minutes past midnight, expressly to investigate a (second) reported violation within days. Told by the Claimant only that it was "late" and that he was "tired", the officer simply took off, without carrying out any investigation of the reported violation and without even fixing an agreed time to re-visit. If any such time were, as a matter of pure hypothesis, to be fixed, it would have to be before the curfew ended at 7.15am; and the Serco officer would be exposing himself to the risk of renewed negotiations with the Claimant, possibly prefaced this time by observations about the matinal hour and the Claimant's continuing, if not worsened, state of fatigue.
41. On the other hand the account given by the Serco officer was coherent and cogent, on any objective analysis. Serco, as the monitoring authority, was required to investigate a reported violation as soon as possible, consistently with the fundamental importance to the HDC release regime of the curfew condition and its effective enforcement. The violation had continued to be reported at 7.15pm (the beginning of the evening curfew period) and expeditious action was needed. By the time the Serco officer arrived it was already past midnight. Furthermore, if he had, as alleged, agreed to return, he would obviously have needed to make a second visit, just for the convenience of the Claimant on the footing of a flimsy and wholly inadequate pretext, and he would have had to fix a time for returning before 7.15am. In addition, and of some significance, he would have to make out a report for his superiors in Serco of his aborted visit, including a statement of the (wholly inadequate) reasons why he had not investigated at 43 minutes past midnight and of what steps (none) he had taken to fix a second visit before 7.15am. Needless to say, the consequences of such conduct and such a report would have been likely to be serious for the individual officer.
42. The decision on the appeal put the matter succinctly:

"We can see no reason why the monitoring officer would adopt such an extraordinary course as to attend the address but not proceed to check the equipment, and then volunteer to return at a later time, outside your curfew hours contrary to company policy."

43. On any objective analysis of the material before the decision maker that was the only conclusion rationally open. In the circumstances of this case there was simply no realistic prospect of a different outcome if an oral hearing had been held. I might note that an oral hearing does not necessarily require an adversarial process, with oral evidence and cross-examination of witnesses (see generally De Smith's Judicial Review, Seventh Edition, paragraph 7-065). It has to be remembered in this context that the relevant decision is not taken by the Parole Board in a judicial, or quasi-judicial capacity, but administratively by the Secretary of State. The administrative decision maker, therefore, might well lawfully restrict himself to hearing oral representations on the written material before him. However, for the reasons already given, even if the putative hearing had taken on a more adversarial shape, as would a hearing before the Parole Board, acting judicially, and the witnesses had repeated what they had already stated in writing, the prospect of a different outcome would not have been improved but would rather, as experience unfortunately often shows, likely have been even further diminished.

Conclusion

44. Therefore, given the context in which the relevant decision was taken, the interests at stake, and the other matters to which I have referred, I conclude that in the circumstances of this case justice did not dictate that the Claimant should be allowed an oral hearing before his licence for release on HDC was definitively revoked.

Lady Justice Rafferty:

45. I agree.