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

A decision to recall a prisoner released on licence is lawful where the Secretary of State has reasonable grounds for concluding that a licence condition was breached and separately determines that recall is necessary. A breach does not automatically justify recall. Intentionality and risk to public safety will ordinarily require consideration.

The Parole Board has a statutory power and duty to examine the original recall decision. That review does not automatically exclude judicial review. The court must consider all the circumstances, including the anticipated timing of the Parole Board’s decision and the apparent strength of the challenge. Alternative remedy is generally considered at the permission stage and is unlikely to carry material weight after permission has been granted.

The claimant appealed from the dismissal of his judicial review challenge to his recall to prison under section 254 of the Criminal Justice Act 2003. He had been released on licence after serving half the custodial term of an extended sentence for public protection.

The recall followed police intelligence that he was associated with organised crime and was planning to obtain firearms for an attack on a rival group. The Secretary of State also considered information about his background and lifestyle. The Administrative Court held that this material justified recall, that the reasons were adequate and that review by the Parole Board provided an alternative remedy.

The appeal concerned whether there were reasonable grounds for finding a licence breach, whether recall was necessary, whether adequate reasons were given and whether the Parole Board’s statutory role affected the availability of judicial review.

1. Appeal dismissed unanimously. The Secretary of State had sufficient material reasonably to conclude that the claimant had breached the condition requiring good behaviour and prohibiting conduct which undermined public protection. The police intelligence, his background and the evidence concerning his lifestyle could properly be considered together. The licence condition was expressed in sufficiently clear language and required no additional judicial gloss.

2. A reasonable belief that a licence condition has been breached does not itself make recall lawful. Necessity is a separate requirement. Intentionality and danger to the public will almost invariably require consideration. Here recall was necessary because the apparent breach was intentional and members of the public faced an immediate risk to life.

3. The Recall and Review Report adequately stated the information and conclusions supporting recall. The challenge to the sufficiency of the reasons therefore failed.

4. Although unnecessary to the disposition of the appeal, the court held that the Parole Board has both power and a duty under the Criminal Justice Act 2003 to consider the Secretary of State’s original recall decision. That responsibility derives from the statutory provisions rather than from ministerial directions. Its function also requires it to assess all the evidence when deciding whether the prisoner should be released. The court followed and explained Gulliver v Parole Board [2007] EWCA Civ 1386.

5. The availability of Parole Board review does not justify the automatic refusal of judicial review. The Administrative Court must consider all the circumstances, including how soon the Board will determine the matter and the apparent strength of the challenge. Alternative remedy will generally be addressed at the permission stage. Once permission has been granted, the court’s duty to determine questions affecting liberty means that the point is unlikely to carry material weight at the substantive hearing.

1. Court of Appeal (Civil Division): Dismissed the claimant’s appeal unanimously: [2015] EWCA Civ 1050 .

2. Administrative Court: HH Judge Gore QC, sitting as a Deputy High Court judge, dismissed the judicial review challenge to the recall decision: [2014] EWHC 4138 (Admin).