Rodgers v Governor of HM Prison Brixton & Anor

A licence period and a supervision period under the Criminal Justice Act 1991 need not coincide. A prisoner cannot be recalled for breach of a supervision condition after the supervision period has ended, particularly where the authorities have told him that supervision has ceased. If recall is instead based on unacceptable risk to the public, that must be the reason given at the time and must be properly explained. Decision-makers must give the right reason at the right time. Later explanations cannot fundamentally alter or contradict the original reason.

The claimant had been released on licence after serving part of a long sentence. His licence document stated that supervision expired in February 2002, although the statutory licence period continued until February 2005. After he committed further offences, the Secretary of State revoked the licence and recalled him under section 39 of the Criminal Justice Act 1991, stating that the recall was for breach of a supervision condition. The claimant sought habeas corpus and judicial review, arguing that the supervision condition was no longer operative and that the Secretary of State had acted unlawfully, in breach of legitimate expectation and irrationally.

1. The Divisional Court quashed the decision to revoke the claimant’s licence and recall him. The claimant was entitled to be released on licence. Permission to appeal and a stay were refused.

2. Section 37(1) of the Criminal Justice Act 1991 defines the period for which the licence remains in force. It does not necessarily define the period of supervision. Sections 37(4) and 37(5), including the power to include, insert, vary or cancel supervision conditions, show that the two periods may differ.

3. The Secretary of State could not lawfully recall the claimant for breach of condition 5(vi), because that condition applied only while he was under supervision. The claimant’s own probation officer and the prison had told him that supervision had ended. The authorities could not rely on a breach of a condition which they had represented was no longer operative.

4. The Secretary of State could have considered recall on the separate ground that the claimant’s continued liberty presented an unacceptable risk to the public. However, that was not the reason stated in the recall decision. It was not permissible to substitute that ground later, particularly where the reasons given were directed solely to breach of condition.

5. Decision-makers must give the right reason at the right time. Later evidence may elucidate or correct an error in expression, but should be approached with caution and cannot ordinarily replace or contradict the reasons given in the decision letter. The principle was especially important because recall has serious consequences and may be disproportionate to the conduct prompting it.

6. The court did not determine the separate arguments based on legitimate expectation or irrationality, since the recall decision was unlawful on the statutory and reasons grounds. The Secretary of State remained able to reconsider recall on the correct basis and to re-impose supervision through proper procedures.

This was a first-instance decision of the Divisional Court of the High Court. The court refused permission to appeal and refused a stay pending any further application.