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

Criminal Justice Act 2003, sections 254 and 255, confer separate recall powers which are not mutually exclusive. Eligibility for recall under section 255 does not exclude use of section 254. The statutory language, particularly section 254(7), distinguishes between the powers themselves and the procedures following recall. Where both powers are available, the Secretary of State must consider which is necessary and appropriate. The stronger power under section 254 should be used only where the public interest requires it, having regard to whether the lesser power under section 255 would be adequate.

Two judicial review claims challenged the Secretary of State’s decision to recall prisoners released on home detention curfew under section 254 of the Criminal Justice Act 2003. Each claimant had allegedly breached general licence conditions and could also have been recalled under section 255. The claimants argued that sections 254 and 255 were mutually exclusive, so that section 255 was the only available power where its conditions were met. The central issue was the proper relationship between the two statutory recall regimes.

1. Applications dismissed. The claimants’ recalls under section 254 were lawful. Leave to appeal was refused because, although the issue was important, there was no realistic prospect of success.
2. Sections 254 and 255 are separate powers and are not mutually exclusive. Section 254 does not become unavailable merely because a prisoner released under section 246 may also be recalled under section 255.
3. The wording of section 254(7) is significant. It provides that subsections (2) to (6), concerning the procedure after recall, do not apply to a person recalled under section 255. It does not provide that section 254 is unavailable whenever a person may be recalled under section 255. The court could not construe the provision as if Parliament had used those different words.
4. That construction was reinforced by practical consequences. Treating the powers as mutually exclusive could mean that a serious breach shortly before the halfway point attracted only detention until automatic release, whereas the same breach shortly afterwards could engage the Parole Board and a potentially longer recall. That would produce an anomalous and incoherent scheme.
5. The court made general observations about the relationship between the powers. Both serve public protection but section 254 is practically the stronger power because it may result in longer detention, despite Parole Board scrutiny. The Secretary of State must therefore consider whether use of the powers is necessary and appropriate. The stronger power should be used only where the public interest requires it and the lesser power would be inadequate.
6. The court also observed that section 255, as enacted in 2003, is available for breach of any licence condition, rather than only a curfew condition. However, since the point had not been argued directly, no definitive ruling was given on the detailed operation of the two provisions.

These were first-instance judicial review claims. The court dismissed both claims and refused leave to appeal, directing the claimants to apply to a single judge if they wished to pursue permission.