Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
- Lady Justice Rafferty agreed with the judgment.
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Appellate history
First-instance judicial review proceedings in the Divisional Court of the Administrative Court. The judgment records no earlier appellate decision in this dispute.
Appeal route
- This judgment [2013] EWHC 1951 (Admin) High Court (Administrative Court)
- Appealed to[2015] EWCA Civ 281Outcomeappeal dismissed
Key cases cited
13 authorities cited.
- Regina v. Parole Board (Respondents) ex parte Smith (FC) (Appellant) Regina v. Parole Board (Respondents) ex parte West (FC) (Appellant) (Conjoined Appeals) [2005] UKHL 1
- R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19
- Whiston, R (on the application of) v Secretary of State for Justice [2012] EWCA Civ 1374
- R (Williams) v Secretary of State for the Home Department [2002] EWCA Civ 498
- Jama v Ministry of Justice [2012] EWHC 533 (QB)
- Francis, R (on the application of) v Secretary of State for Justice & Anor [2011] EWHC 1271 (Admin)
- Wilkinson, R (on the application of) v Secretary of State for Justice [2009] EWHC 878 (Admin)
- H, R (On the Application Of) v Secretary of State for Justice [2008] EWHC 2590 (Admin)
- Mason v Ministry of Justice [2008] EWHC 1787 (Admin)
- Palmer, R (on the application of) v Secretary of State for the Home Department [2004] EWHC 1817 (Admin)
- R(McLeod) v HM Prison Service [2002] EWHC 390 (Admin)
- R(Ramsden and Naylor) v Secretary of State for the Home Department [2007] ACD 51
- R v Secretary of State for the Home Department, ex p. Duggan [1994] 3 All ER 277
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Cases citing this case
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