Gulliver, R (on the application of) v Parole Board

A recall to prison is lawful if, on the information available when the decision was made, the Secretary of State was entitled to recall the prisoner. The fact that the alleged breach is later disproved does not retrospectively invalidate the detention. The Parole Board may then decide, on the material available when it reviews the case, whether continued detention is required to protect the public. Its review should examine the circumstances of the recall because they may bear on future risk, but the Board’s central function is to assess whether release would create an unacceptable risk. The judgment left open the consequences of a recall knowingly made without any apparent justification.

The claimant had been released on licence after serving half of a three-year sentence. He was recalled after an alleged failure to recharge satellite-tracking equipment. The Secretary of State relied on the resulting inability to monitor his whereabouts and on the risk arising from his history of violence towards former partners.

The Parole Board accepted that the equipment might have malfunctioned and that the alleged breach was not conclusively proved. It nevertheless upheld the recall and refused release because the claimant remained a high risk, particularly if he returned to the Isle of Wight where his former partner lived. The judicial review concerned whether the Board could lawfully continue his detention once the original alleged breach was not established.

1. Claim dismissed. The claimant’s detention following recall was lawful, and the Parole Board lawfully decided that he should remain detained until the statutory three-quarter point of his sentence.
2. Section 254 of the Criminal Justice Act 2003 gave the Secretary of State power to recall a prisoner released on licence. The relevant question was whether, on the information known or constructively known at the time, there was a proper basis for recall. Here, the Secretary of State was entitled to act on the reported failure to recharge the tracking device. The later failure to prove that breach did not retrospectively make the recall or ensuing detention unlawful.
3. The Parole Board’s function was to assess risk to the public on all the material before it. It was not required to release a prisoner merely because the factual basis originally relied upon for recall was not established, provided the original detention was lawful and the Board found an unacceptable risk on review. The Board was entitled to take account of the claimant’s history, the changed position of the probation officers, the proposed relocation, and his own evidence about coping with supervision and isolation.
4. The Board should review the circumstances of the recall, including whether the alleged breach occurred, because those matters may bear on the prisoner’s attitude and future risk. That review did not necessarily require a final determination that the recall was justified in the wider sense at the time it was made.
5. The court left open the separate question whether detention could be maintained where the Secretary of State had knowingly or improperly used the recall power without any apparent justification. That issue did not arise on the facts. There was no order for the defendant’s costs; the claimant was granted detailed assessment of his legally aided costs.

The claim arose from the Parole Board’s decision of 15 June 2006 upholding the Secretary of State’s recall decision and refusing release. The High Court dismissed the judicial review claim.