Benson, R (on the application of) v Secretary of State for Justice

A recall under Criminal Justice Act 2003 section 246 during the currency of a determinate sentence does not engage European Convention on Human Rights article 5(4). The recall is treated as part of the way in which the sentence is served.

Nevertheless, the Secretary of State must act reasonably and fairly. A licence condition requiring access for electronic monitoring must be applied reasonably. Failure to obtain access is not automatically a breach. The decision-maker must consider the prisoner’s fault, explanations and whether access could reasonably have been expected. The allegations must also be stated with sufficient detail to permit meaningful representations.

The claimant was serving a determinate sentence and had been released on licence under Criminal Justice Act 2003 section 246, subject to home detention curfew and electronic tagging. His licence was revoked and he was recalled after monitoring contractors failed to obtain access to his home on two occasions.

He challenged the recall procedure on the grounds that article 5(4) required independent judicial consideration of the lawfulness of his detention and that the decision was procedurally unfair. The central issues were whether article 5(4) applied and whether the Secretary of State had fairly assessed the alleged breaches.

1. The claim succeeded in part. The court declined to declare that article 5(4) applied to the claimant’s recall. Under Criminal Justice Act 2003 sections 246 and 255, the recall occurred during the determinate sentence imposed by the criminal court. It was therefore a means by which that sentence was served, comparable to detention in an open or closed prison.

2. The statutory scheme did not require recall whenever the monitoring contractor failed to obtain access. Section 255 conferred a discretion. In exercising it, the Secretary of State had to consider whether the prisoner was at fault and whether it was reasonable in the circumstances to expect him to facilitate access.

3. A condition requiring access could reasonably permit visits between midnight and 6 am where necessary to investigate a reported violation. However, it was too broad to treat every unsuccessful attempt to obtain access as an automatic breach. A prisoner who was unaware of the attempted visit, and had no reasonable basis for expecting it, might not have breached the condition.

4. The Secretary of State was required to investigate explanations advanced by the prisoner and satisfy himself that recall was justified in all the circumstances. The decision in this case merely recorded the failure to provide access and gave no indication that the claimant’s explanations, the possible fault in the monitoring system or the surrounding evidence had been properly examined.

5. Common-law fairness required allegations to be supplied in sufficient detail to enable meaningful representations. An oral hearing was not necessarily required, but the claimant had not been given a proper opportunity to answer the allegations. The recall decision was quashed and reconsideration was directed. The defendant was ordered to pay the claimant’s costs.