Oakes, R (on the application of) v Secretary of State for Justice & Ors

A prisoner lawfully recalled and found unsuitable for automatic release under section 255A of the Criminal Justice Act 2003 must thereafter be dealt with under section 255C. The Secretary of State has no continuing duty to reapply the narrower automatic-release test merely because information relied on at recall later proves defective. The phrase protection of the public in section 255C(3) is deliberately broader than risk of serious harm in section 255A(5), and includes the risk of reoffending. A possible unfairness in a misconceived recall does not justify reading the narrower test into section 255C(3).

The appellant, who was serving a sentence on licence, was recalled to prison after positive drug tests and an incident involving his partner. He challenged the recall, the refusal to release him, and claimed damages. Langstaff J refused the challenge to the Secretary of State’s decisions in [2009] EWHC 3470 (Admin), but quashed an earlier Parole Board decision on procedural grounds, including failure to permit an oral hearing. The Board later directed release on licence.

The appeal concerned whether the Secretary of State had to keep automatic-release suitability under section 255A under review, and whether the protection-of-the-public test in section 255C(3) was limited to the risk of serious harm or also included risk of reoffending.

Pill LJ gave the judgment of the court, with which Rimer LJ and Black LJ agreed. The appeal was dismissed.

1. Under the Criminal Justice Act 2003, the Secretary of State must first determine whether a recalled prisoner is eligible and suitable for automatic release under section 255A. If the prisoner is not found suitable, section 255A(6)(b) requires the prisoner to be dealt with under section 255C. That scheme permits release under section 255C(2), subject to the condition in section 255C(3), and requires referral to the Parole Board under section 255C(4).
2. The court rejected the submission that a prisoner could require the Secretary of State to reapply section 255A(5) when information underlying the original decision was later shown to be defective. Once the prisoner had lawfully been found unsuitable for automatic release, the section 255C scheme governed. The court saw no room within the statutory scheme for reassessment under the narrower test.
3. The different expressions in sections 255A(5) and 255C(3) were deliberate. Protection of the public in section 255C(3) was broader than risk of serious harm and could include risk of reoffending. Section 239(6), which required directions to the Board to have regard to preventing further offences and securing rehabilitation, supported that construction.
4. The court left open whether section 255A(3) conferred a general discretion beyond the requirement in section 255A(5). That issue was unnecessary to decide. The recall was not shown to be misconceived on the facts, and the detention was lawful.

1. Court of Appeal (Civil Division): The appeal against Langstaff J’s decision was dismissed.
2. Administrative Court: Langstaff J refused the challenge to the Secretary of State’s recall and refusal to release the appellant in [2009] EWHC 3470 (Admin). The judge quashed the Parole Board’s earlier decision on procedural grounds. On reconsideration, the Board later directed release on licence.