Francis & Anor, R (on the application of) v Secretary of State for the Home Department & Anor

Section 39 of the Criminal Justice Act 1991 does not create an unlimited right to make repeated representations after recall on licence. Representations must concern the recall decision, rather than the general justification for continued detention. Further representations may nevertheless be required where there has been a material change of circumstances relevant to recall and there is a realistic prospect that the Parole Board might take a different view. The Secretary of State decides whether that threshold is met, subject to judicial review. The safeguard is exceptional and should not become a general opportunity for repeated or unmeritorious applications.

Two conjoined judicial review claims concerned prisoners recalled to custody after release on licence under section 39 of the Criminal Justice Act 1991. In each case, the prisoner made written representations which were considered by the Parole Board. Each was subsequently acquitted of the criminal charge which had materially featured in the recall decision and made further representations. The Secretary of State declined to refer those further representations to the Board.

The central issue was whether section 39 permitted only one set of representations, or required further representations to be referred where subsequent circumstances might affect the correctness of the recall decision.

1. The claims were dismissed. The court made a formal order dismissing both claims and ordered costs on the publicly funded basis, subject to assessment under section 11 of the Access to Justice Act 1999. Permission to appeal was refused.

2. Section 39 is directed to protection of the public against risk and concerns the appropriateness of recall. Written representations under section 39(3)(a) must relate to recall, not to the continuing appropriateness of detention except where that issue is incidental to recall.

3. The claimants’ proposed unlimited right to make repeated representations was rejected. Such an interpretation would create a materially different regime, shift attention from recall to continuing detention, and impose an unacceptable burden on the Parole Board through potentially unmeritorious or vexatious representations.

4. The Secretary of State’s primary submission that only one set of representations could ever be made was also rejected. The statutory duty to refer may arise again where a material change of circumstances relevant to recall creates a realistic prospect that the Parole Board might take a different view. The court considered that this limited safeguard was justified by the potential unfairness of a later event affecting the correctness of recall.

5. The Secretary of State must determine whether the further representations meet that threshold. The court treated the power under section 12 of the Interpretation Act 1978 as permitting performance of the statutory duty from time to time as occasion requires. The decision is susceptible to judicial review.

6. The safeguard is narrow. Further representations should be permitted only where genuinely necessary to avoid potential unfairness or injustice, and should not be treated as a general right to reopen the recall decision.