Abedin v Secretary of State for Justice

A recall from release on licence is lawful where the decision-maker has evidence on which a reasonable conclusion of breach may be based. An emergency recall does not ordinarily require further explanations from the offender or other persons before it is made. The supervising officer’s request must be fair and balanced, but may reflect a genuine adverse view formed on reasonable grounds. Where a licence condition depends on monitoring computer use, examination of the relevant device may be implicit in the condition. A later statutory cancellation application may address the unfair consequences of a recall which is found not to have been justified.

The claimant had been released on licence after serving a sentence for a terrorist-related explosives offence. A licence condition restricted his use of computers and permitted monitoring. After a family laptop was surrendered, examination showed that its hard drive had been wiped and software installed shortly beforehand. The claimant was recalled to prison on the basis that the wiping might conceal prohibited material.

He challenged both the recall and the refusal to cancel it. The issues were whether the recall request and decision were unfair or irrational, whether further information should have been obtained, and whether the Secretary of State had properly considered cancellation under section 254 of the Criminal Justice Act 2003.

1. Recall. The claim was rejected. A supervising officer’s request for recall must be fair, but an adverse view is permissible where it is genuine and based on reasonable grounds. The relevant question was whether there was evidence on which the decision-maker could reasonably conclude that a licence condition had been breached, applying R (Gulliver) v Parole Board [2007] EWCA Civ 1386.
2. Emergency procedure. This was properly treated as an emergency recall because the unexplained wiping of the hard drive, viewed against the claimant’s conviction and access to the laptop, reasonably suggested a return to conduct presenting a high risk of serious harm. There was no obligation to seek further explanations from the claimant, his wife or other persons before making the recall decision. The omission of the Parole Board’s earlier decisions from the recall request did not invalidate it, although the concerns about the computer condition had some relevance.
3. Computer condition. The court had grave doubts that the demand for surrender could be justified by indirect ownership of property in the family home. Nevertheless, effective monitoring of a condition restricting computer use necessarily required examination of the device, and the claimant had handed it over. The first defendant was therefore entitled to act on the discovery that the hard drive had been wiped.
4. Cancellation. Under section 254 of the Criminal Justice Act 2003, the Secretary of State could consider written representations and other matters, but cancellation under section 254(2A) required satisfaction that all licence conditions had been complied with. Issues about whether the condition had actually been breached were properly left to the Parole Board.
5. If the Parole Board found that there had been no breach, the claimant should apply under section 254(2A). Subject to exceptional circumstances, the revocation should then be cancelled to avoid the unfair effect of a lawful but unjustified recall. The claim was dismissed.

First-instance judicial review in the High Court (Administrative Court). The judgment itself records no prior court decision or appeal.