Roberts v Secretary of State for the Home Department

Detention following revocation of a prison licence is not arbitrary merely because later information might have influenced the decision to revoke or recall. The statutory scheme places the merits of recall and release with the Parole Board. A recalled person may make written representations immediately, before returning to custody, and the Secretary of State must refer them to the Board. The Secretary’s own power and duty to reconsider is limited to cases where it is, or ought to be, clear that revocation was unlawful. Where the available information does not establish unlawfulness, continued detention under the statutory process is lawful and compatible with Article 5.

The appellant had been sentenced to 18 months’ imprisonment and released on licence. After earlier difficulties, he missed two appointments with his probation officer. The Parole Board recommended recall and the Secretary of State revoked the licence under the Criminal Justice Act 1991.

The probation officer later sent information about the reasons for the missed appointments and asked that the recall be rescinded. The appellant was detained after the licence period would otherwise have expired and was released following representations to the Parole Board.

The Central London County Court struck out claims for false imprisonment and breach of Article 5. Permission to appeal was granted only on the Article 5 issue. The central question was whether the Secretary of State’s failure to reconsider the revocation made the subsequent detention arbitrary.

Appeal dismissed. The Court of Appeal upheld the striking out of the Article 5 claim. Sir Anthony Clarke MR gave the judgment, with Smith LJ and Maurice Kay LJ agreeing.

1. Under Article 5, detention must be lawful under domestic law, comply with Convention requirements concerning the accessibility and precision of the legal basis, and avoid arbitrariness, including bad faith or disproportionality. The court adopted the general approach stated in R (Giles) v Parole Board [2003] UKHL 42 and considered the reasoning in R (West) v The Parole Board [2005] UKHL 1.
2. Section 39 of the Criminal Justice Act 1991 makes recall the natural consequence of revocation. A person recalled under section 39(1) may make written representations immediately upon learning of the revocation, before physical return to prison. The Secretary of State must refer such representations to the Parole Board.
3. The statutory scheme does not require the Secretary of State to review every revocation whenever new material is received. His power and duty to intervene is limited to cases where it is, or ought to be, clear that the revocation was unlawful, such as where the statutory precondition for revocation was absent or the decision rested on a plainly wrong fact. New facts which might affect the Board’s assessment of recall or release must be dealt with through the representations and referral procedure.
4. The information supplied by the probation officer was insufficient to show that the revocation was unlawful or to require cancellation without consideration by the Parole Board. The appellant had not made written representations or surrendered to custody. His detention was therefore lawful and not arbitrary under domestic law or Article 5.
5. A written argument based on delay under Article 5(4) was not developed orally, and the statutory procedure had operated without undue delay. The court added that, subject to the circumstances of the case and security considerations, it was good practice for the Secretary of State to explain clearly the available options to a person whose licence was revoked.

The appeal was dismissed. The appellant’s costs were subject to detailed assessment, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1663, the appeal on the Article 5 issue was dismissed.
• Central London County Court: His Honour Judge Knight QC struck out the claim, entered summary judgment for the Secretary of State and dismissed the action on 9 August 2004.
• Permission to appeal: McKay J refused permission on paper. Field J subsequently granted permission on the Article 5 issue and directed that the matter be heard by the Court of Appeal.