Foster v The Secretary of State for Justice

Whether procedural fairness requires an oral hearing before recall from home detention curfew is context-sensitive. Home detention curfew is discretionary and conditional, and forms part of the custodial sentence. It is not equivalent to release as of right after the custodial term. A disputed account does not automatically require an oral hearing. Relevant considerations include whether oral evidence is needed to resolve important facts or mitigation, assess risk, test decision-makers’ views, or enable effective participation, together with the importance and practical impact of the decision. Where recall turns on a straightforward compliance issue, written representations have been properly investigated, and the evidence is sufficiently conclusive, fairness may be satisfied without an oral hearing.

The appellant, serving a sentence of three and a half years, was released on home detention curfew subject to electronic monitoring and curfew conditions. His licence was revoked and he was recalled under section 255 of the Criminal Justice Act 2003 after an alleged failure to permit inspection of his tag. Written representations were rejected.

The Divisional Court dismissed his application for judicial review: [2013] EWHC 1951 (Admin). On appeal, he argued that the common-law duty of fairness required an oral hearing to resolve the disputed account of the monitoring visit. The central issue was whether the principles governing oral hearings for recalled prisoners applied in the same way to recall from home detention curfew.

1. Appeal dismissed. The court upheld the Divisional Court’s dismissal of the judicial review claim.
2. The common-law duty of procedural fairness is flexible and depends on the legal and administrative context. There is no rule requiring an oral hearing in every recall case, or whenever facts are disputed. The approach in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 and the guidance summarised in R (Osborn and others) v The Parole Board [2013] 3 WLR 1020 require attention to the facts, the importance of what is at stake, the need for oral evidence or explanation, risk assessment, effective participation and the practical impact of the decision.
3. Home detention curfew under section 246 of the Criminal Justice Act 2003 is discretionary and conditional. It is a means of serving the custodial part of a sentence in the community. Following R (Whiston) v Secretary of State for Justice [2013] 2 WLR 1080, HDC is detention by another means and is materially different from release as of right after the custodial term. The common law may provide natural justice protection in HDC cases, but that does not create an automatic right to an oral hearing.
4. Recall in this case concerned a comparatively short and straightforward compliance issue. It involved no evaluative assessment of risk or expert evidence. The appellant’s written account made little sense on the objective facts, while the monitoring officer’s account was coherent. The appellant and officer had been face to face, and the obligation to comply with the licence rested on the appellant. The alleged absence of fault did not make the breach ineffective.
5. The asserted impact of a policy affecting future HDC eligibility did not justify an oral hearing. Future imprisonment was contingent on future offending, and exceptional circumstances could be raised under the policy as it then stood. The later statutory change did not affect the conclusion on these facts.

1. Court of Appeal (Civil Division) dismissed the appeal from the Divisional Court: [2015] EWCA Civ 281.
2. High Court of Justice, Queen’s Bench Division, Administrative Court dismissed the application for judicial review: [2013] EWHC 1951 (Admin).