Crosby v Secretary of State for the Home Department

Judicial review cannot challenge the appropriateness of a criminal sentence imposed at trial and upheld on appeal. A parole recall decision is reviewable only on conventional legality grounds. The allegations must have a tenable basis and be relevant to recall, and the prisoner must have fair notice and an opportunity to answer. The decision-maker determines the factuality and seriousness of alleged breaches. At the material time, the Home Secretary could act as both accuser and decision-maker. Where those conditions are met, factual disagreement does not make recall legally flawed.

The applicant had completed the custodial part of a five-year sentence imposed at trial and upheld by the Court of Appeal. He sought permission to challenge both the sentence and his recall to prison for alleged breaches of his parole licence under section 39 of the Criminal Justice Act 1991.

A two-judge Divisional Court, comprising Lord Justice Rose and Mr Justice Silber, refused permission on 11 June 2001. The central issues were whether the sentence could be reviewed judicially and whether the Home Secretary’s factual basis for recalling the applicant was legally sufficient.

Permission to appeal was refused.

1. Sentence. The appropriateness of a sentence imposed at trial and upheld on appeal was not a matter for judicial review. Any challenge to the sentence had to be pursued through the criminal appellate process. The earlier Court of Appeal decision had held the sentence lawful, including by reference to the operation of section 2(2)(b) of the Criminal Justice Act 1991.
2. Parole recall. The factuality and seriousness of alleged breaches of a parole licence were matters for the Home Secretary, who at the material time was both the accuser and decision-maker. Judicial review was limited to legality. There had to be some tenable basis for the allegations, and they had to be relevant to the question of recall. The applicant also had to receive fair notice of the allegations and an opportunity to answer them.
3. Application. The allegations concerning hostel rules, residence, co-operation with supervision and letters to hostel staff had a relevant basis, principally in the supervising probation officer’s report. The applicant disputed the facts, but did not suggest that he lacked notice or an opportunity to respond. The Home Secretary was therefore entitled to determine the allegations adversely and recall him. The Divisional Court had not erred, and no potentially successful appeal was disclosed.

• Court of Appeal (Civil Division) On 11 October 2001, the court refused the applications for permission to appeal: [2001] EWCA Civ 1582.
• Divisional Court On 11 June 2001, Lord Justice Rose and Mr Justice Silber refused permission to seek judicial review.