McAlinden, R (on the application of) v Secretary of State for the Home Department

Article 5(4) does not require judicial review of a recall to prison under section 255 of the Criminal Justice Act 2003 where the prisoner remains detained under the original determinate sentence and had no right to release at the relevant time. Factual disputes about an alleged breach do not, in that context, affect the lawfulness of detention already authorised by the sentencing court. The statutory representations and appeal procedure, together with ordinary public-law judicial review, provide the relevant safeguards. A first-instance judge should not depart from another High Court decision unless satisfied that it is clearly wrong. The House of Lords decision in R(Black) v Secretary of State did not make R(Benson) v Secretary of State clearly wrong.

The claimant had been released from a determinate sentence on Home Detention Curfew under section 246 of the Criminal Justice Act 2003. His licence was revoked under section 255 after the electronic monitoring equipment appeared to have been deliberately tampered with. He made representations, but was released automatically before the judicial review claim was determined.

The claim concerned whether the absence of Parole Board review of a section 255 recall was incompatible with Article 5(4) of the Convention, and whether a declaration of incompatibility should be made. The court considered earlier decisions including R(Benson) v Secretary of State, Mason v Secretary of State for Justice, and the House of Lords decision in R(Black) v Secretary of State.

1. The claim was dismissed. No declaration of incompatibility was made in respect of section 255 of the Criminal Justice Act 2003.
2. Under Article 5(1)(a), detention pursuant to a determinate sentence imposed by a competent court remains lawful throughout the sentence. Article 5(4) does not require renewed judicial determination merely because the prisoner has been released on Home Detention Curfew and later recalled, where the prisoner had no right to be free at the time of release or recall.
3. The factual issue whether the electronic tag had been deliberately interfered with did not determine the lawfulness of the claimant’s detention. That lawfulness had already been determined by the sentencing court. Section 255 provided for written representations, investigation by an independent appeals team, cancellation of the revocation where appropriate, and ordinary judicial review on public-law grounds.
4. The court accepted the reasoning of Collins J in R(Benson) v Secretary of State, which was on all fours with the claim. Applying R v HM Coroner for Greater Manchester ex p Tal, the court could depart from that High Court decision only if satisfied that it was clearly wrong. The observations of Lord Brown in R(Black) v Secretary of State concerning recall after discretionary or automatic release were persuasive, but the judge was not satisfied that they formed part of the reasoning commanding the House’s decision or made Benson clearly wrong.
5. The distinction between sections 254 and 255 remained material. Section 254 recall engaged the statutory Parole Board procedure, whereas section 255 operated within the compulsory custodial part of a determinate sentence and did not require Parole Board supervision under Article 5(4).

Permission to appeal was granted. The claimant was ordered to pay the defendant’s reasonable costs in accordance with section 11 of the Access to Justice Act, subject to the applicable enforcement restriction.

This was a first-instance judicial review in the Administrative Court. Permission to apply for judicial review had been granted by Collins J on 20 April 2007. Permission to appeal to the Court of Appeal was granted at the conclusion of this judgment.