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

A reasonably established breach of a prisoner’s licence does not automatically justify recall. The Secretary of State must separately consider the prisoner’s fault and whether recall is necessary and proportionate to protect the public. Recall is justified only where the public risk cannot be contained by a less restrictive response.

The decision must give intelligible and adequate reasons addressing the principal issues. A recall policy or preliminary view is lawful if the individual circumstances remain open to genuine consideration. Licence terms create no legitimate expectation unless they make a clear, unambiguous and unqualified representation, construed in their full context. An expectation cannot require conduct contrary to statute.

The claimant sought judicial review of the Secretary of State’s decision under section 254 of the Criminal Justice Act 2003 to recall him after he tested positive for cannabis while on parole licence. He admitted deliberate cannabis use but had otherwise complied with his licence.

The claimant alleged that the risk assessment was flawed or manipulated, relevant matters and alternatives to recall were overlooked, the decision-maker fettered her discretion, the reasons were inadequate, and a licence condition concerning referral to a specialist agency created a legitimate expectation against immediate recall. The central question was whether the recall decision was lawful, rational, proportionate and adequately reasoned.

1. The claim was dismissed. The June 2010 risk assessment was rationally available to the Offender Manager. The claimant’s serious offending history and the connection between his offending and drugs justified assessing him as presenting a very high risk of serious harm. There was no cogent evidence of bias, factual error or deliberate manipulation.

2. Proof or reasonable belief of a licence breach is only the first stage. The Secretary of State must separately consider what response the breach warrants. Fault is a material consideration, and any explanation must be investigated where it may affect whether recall is justified. Here the claimant deliberately acquired and used cannabis, knowing that this was unlawful and contrary to his licence. His explanation could not materially affect the decision given the identified connection between drug use, reoffending and serious public risk.

3. Recall must be necessary and proportionate to the primary objective of protecting the public. A less restrictive measure must be used where it can adequately contain the risk. The Request for Recall addressed alternative action and showed that emergency recall was considered necessary because cannabis use significantly increased an already very high risk. The applicable guidance also permitted urgent enforcement where non-compliance substantially increased public risk. A warning or further drug treatment was therefore unnecessary and inappropriate.

4. The court’s function was to review legality, not to remake the recall decision. The decision fell within the range reasonably open to the specialist decision-maker. Judicial review required an actual public law error, not merely language which, if strictly construed, might suggest one.

5. The preliminary decision that drug use should trigger emergency recall did not unlawfully fetter discretion. A policy or preliminary view is permissible if the decision-maker remains willing to consider the individual case. Several officials scrutinised the detailed, claimant-specific risk material before revocation. The revocation document and Request for Recall together gave intelligible and adequate reasons.

6. The licence condition concerning referral to a specialist agency was neither clear nor unqualified enough to create the asserted legitimate expectation. Read with the other conditions, the licence expressly warned that offending, bad behaviour or public risk could lead to recall. In any event, no legitimate expectation could require the Secretary of State to act contrary to the statutory responsibility to protect the public.

not stated in the judgment.