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

The court considered the meaning of section 39 of the Criminal Justice Act 1991 and whether a recalled prisoner has only one opportunity to make written representations about recall or may make further representations. The court held that section 39 is concerned with the correctness of the recall decision and does not permit unlimited repeated representations that would impose an undue burden on the Parole Board. However, further written representations may be referred if they demonstrate a material change of circumstances producing a realistic prospect that the Parole Board would reach a different view. The Secretary of State is the decision-maker as to whether that threshold of material change is met, subject to judicial review.

This is a first-instance judicial review in which two short-term prisoners (Francis and Clarke) challenged Home Office refusals to refer fresh written representations about their recalls to the Parole Board under section 39 of the Criminal Justice Act 1991. Each claimant had been recalled after release on licence following allegations of further offending; both made initial written representations which were referred and rejected by the Parole Board. After later acquittals (or in one case after trial), each claimant made a further set of written representations asking for re-referral to the Parole Board; the Secretary of State declined to re-refer. The claimants sought orders requiring re-referral.

The issues framed by the court were whether a recalled prisoner has a statutory right to make more than one set of written representations under section 39, whether the Parole Board is functus officio after deciding a reference under section 39(4), and, if further representations can be made, whether the Secretary of State may refuse to refer unless there is a material change of circumstances. The court also considered whether the power or duty to refer could revive "from time to time as occasion requires" (Interpretation Act 1978, s.12) and compared section 39 with statutory regimes that expressly limit rereferral (for example section 44A of the Criminal Justice Act 1991 and section 28 of the Crime (Sentences) Act 1997).

The court rejected the claimants' submission that section 39 permits unlimited repeated written representations. That construction would shift section 39 from an architecture focused on the recall decision to an open-ended review of continuing detention and would unduly burden the Parole Board. The court also rejected the Secretary of State's primary submission that there is absolutely only one opportunity to refer, because that would risk unfairness where a subsequent material change of circumstances might undermine the correctness of the earlier decision. The court accepted the Secretary of State's alternative position: additional representations that relate to the recall may be referred if they show a material change of circumstances giving a realistic prospect that the Parole Board might decide differently. The court held that the Secretary of State is the appropriate decision-maker to determine whether that threshold is met, with the availability of judicial review of that decision. The claims were dismissed.

The court dismissed both claims. It held that recalled prisoners do not have a right to make unlimited repeated written representations under section 39; but section 39 can be read to allow further written representations relating to the recall where there has been a material change of circumstances giving a realistic prospect of a different Parole Board decision. The Secretary of State is to decide whether the material change threshold is met, subject to judicial review.