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

Procedural fairness does not require an oral hearing whenever a prisoner disputes recall from home detention curfew. The decision-maker must assess the context, the interests at stake, the nature of the liberty, and whether an oral hearing could realistically affect the outcome. Home detention curfew is part of the original custodial term, not a statutory right to liberty after that term has expired. A strict condition requiring access for urgent electronic-tag investigations may therefore justify recall without an oral hearing where the written material objectively permits only one rational conclusion.

The claimant was recalled to prison under section 255 of the Criminal Justice Act 2003 after refusing to permit a monitoring contractor to inspect his electronic tag during the curfew period. His written appeal was rejected. He sought judicial review, relying principally on R(West) and R(Smith) v Parole Board and contending that the dispute about the monitoring visit raised credibility issues requiring an oral hearing.

The Divisional Court considered whether fairness required an oral hearing before the Secretary of State definitively revoked the claimant’s home detention curfew licence.

1. Claim dismissed. The Secretary of State had a discretion to permit an oral hearing where fairness required it, despite the statutory provision for written representations. That discretion had not been unlawfully exercised.
2. The requirement for an oral hearing is context-dependent. Relevant considerations include the interests at stake, the nature and quality of the liberty, the importance of disputed facts, the identity and function of the decision-maker, and whether an oral hearing could realistically produce a different outcome.
3. R(West) and R(Smith) v Parole Board was materially distinguishable. It concerned prisoners who had completed their custodial terms and possessed a statutory right to release. Home detention curfew is instead an alternative way of serving the original custodial sentence and gives no comparable automatic right to liberty.
4. The curfew condition strictly required access between midnight and 6 am where a violation was reported. The requirement was fundamental to effective electronic monitoring. The claimant’s proposed deferral of the inspection was inconsistent with that obligation.
5. The material before the decision-maker objectively supported only the monitoring officer’s account. The claimant’s account was inherently implausible, and an oral hearing would have offered no realistic prospect of a different result. The decision was therefore procedurally fair.
6. Lady Justice Rafferty agreed with the judgment.

First-instance judicial review proceedings in the Divisional Court of the Administrative Court. The judgment records no earlier appellate decision in this dispute.