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

Judicial review is available to challenge the lawfulness of a Secretary of State’s decision to revoke a prisoner’s licence and recall him. A Parole Board review does not replace that remedy where the complaint is that the recall itself was unlawful.

A licence requirement to be well behaved extends beyond refraining from criminal offending. It requires conduct which does not adversely affect, annoy, hinder, inconvenience or distress others in their lawful activities or duties. Revocation is lawful where the Secretary of State could reasonably conclude, on the information available when deciding, that the condition had been breached. Reasons are required, but need not be lengthy where the recall dossier makes the basis of the decision sufficiently clear.

The claimant, serving a fixed-term sentence, had been released on licence and recalled after being involved as a passenger in a serious road collision. The National Probation Service reported that he had run from the scene and evaded the police. The Secretary of State revoked his licence under section 254 of the Criminal Justice Act 2003, relying principally on an alleged breach of the licence condition requiring good behaviour.

The claimant sought judicial review, contending that the recall was inadequately reasoned and irrational. The Secretary of State argued that the Parole Board’s review and refusal to recommend release made judicial review inappropriate. The central issues were whether the recall itself could be challenged, the meaning of the good-behaviour condition, and whether the information available reasonably supported revocation.

1. The claim was dismissed. The Parole Board’s review did not deprive the Administrative Court of jurisdiction to determine whether the Secretary of State’s original revocation and recall were lawful. Gulliver concerned the different question whether the Board had to consider all the circumstances when the recall was lawful but the alleged breach was not proved. It did not determine the lawfulness issue raised here.
2. Under section 254 of the Criminal Justice Act 2003, revocation and recall are lawful if the Secretary of State could reasonably conclude, on the material available at the time, that a licence condition had been breached. The issue was therefore not whether the claimant had in fact fled the scene, but whether that conclusion was reasonably open on the evidence.
3. The phrase to be well behaved imposed a distinct requirement. It was not confined to avoiding criminal offences, and the purposes of supervision did not delimit it. It required conduct which was lawful and did not adversely affect, annoy, hinder, inconvenience or distress others in relation to their lawful activities or duties, whether by action, omission or a course of conduct.
4. The report that the claimant had attempted to flee a potentially serious collision, together with the police material and evidence that he evaded the police until located by helicopter, provided ample material for a reasonable conclusion that the condition had been breached. The claimant’s disputed account did not prevent that conclusion. The threshold for the Secretary of State’s decision was relatively low.
5. The asserted requirement that immediate recall be justified only by a substantially increased public risk was not accepted. The evidence reasonably supported an inference that the claimant might abscond, particularly in light of his previous curfew history.
6. Reasons were required, but they need not be lengthy. The revocation notice, read with the recall request and dossier supplied to the claimant, sufficiently explained the alleged breach and enabled an effective challenge. Once the recall was lawful, the Parole Board was responsible for deciding whether and when release should occur, having regard to all the circumstances.