Goldsworthy, R (On the Application Of) v Secretary of State for Justice

Recall of an indeterminate-sentence prisoner requires reasonable grounds for finding a licence breach and a conclusion that recall is necessary to protect the public from the dangers posed on licence. Detention is a last resort, so reasonable alternatives must be considered. A decision is unlawful where it treats anticipated behaviour as an increased risk, ignores available alternative accommodation, or fails to consider material circumstances affecting the behaviour and the impact of detention. The decision-maker must address the relevant risk, including whether conduct demonstrates a heightened risk of sexual or violent harm, rather than rely on a generalised causal link with the index offence.

The claimant, an elderly life prisoner whose tariff had expired, was released on licence after the Parole Board assessed his risk of future sexual harm as low and concluded that anticipated abusive or aggressive behaviour did not justify continued detention. After he developed terminal cancer, difficulties arose with carers at his care home, including threats and damage to property. He was recalled to prison under section 32 of the Crime (Sentences) Act 1997.

The recall was reconsidered and reaffirmed, although alternative accommodation in a studio flat had been identified and the alleged sexual contact with another resident was later treated as non-threatening. The issues were whether the recall decisions were rational and lawful, whether the relevant policy had been applied, and whether detention was necessary for public protection.

1. The claim succeeded. The initial recall decision and the reconsideration decision of 24 August 2017 were unlawful and were quashed. The claimant’s detention was unlawful from the time of recall. His damages claim was to be determined by written submissions.
2. Under section 32 of the Crime (Sentences) Act 1997, the recall test is the same as the test for initial release on licence. There must be reasonable grounds for concluding that a licence condition was breached and recall must, in all the circumstances, be necessary for public protection because of the dangers posed by the prisoner on licence. Detention is justified only as a last resort, after less severe measures have been considered and found insufficient.
3. The claimant’s conduct at the care home did not demonstrate an increased risk beyond that assessed by the Parole Board when ordering his release. Threatening language, abuse and the throwing of objects had been anticipated and had been judged insufficient to justify detention. It was therefore irrational to treat the same behaviour as establishing the necessary increased risk.
4. The decision-makers failed to consider material matters. These included the availability of alternative accommodation in a studio flat, whether visiting carers could manage the risk there, the fact that the alleged touching incident was non-threatening, and the claimant’s terminal diagnosis and the stressful circumstances in which the behaviour occurred.
5. The attempt to establish a causal link between the claimant’s index offences and his conduct was misconceived. General abusive or aggressive behaviour was distinct from the risk of future sexual violence and did not, without more, justify continued confinement for public protection. The Defendant also failed properly to apply its policy guidance requiring evidence of an increased risk of harm.