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

Release under section 244 of the Criminal Justice Act 2003 is necessarily release on licence. The statute does not require a physical licence document or particular formalities for a licence to exist. Statutory standard conditions apply automatically.

Recall under section 254 does not depend on a wilful or formally notified breach where the Secretary of State reasonably concludes that the prisoner’s conduct undermines the purposes of release and creates an unacceptable public risk. Continued detention remains subject to public law and Article 5 scrutiny, but a short period awaiting suitable accommodation may be justified. Article 14 requires an appropriate comparator and, where necessary, objective justification.

The claimant, a serving prisoner with a schizoaffective disorder, was released from custody while detained in hospital. He was later discharged after absconding, recalled to prison, and detained pending release to approved accommodation.

He sought judicial review of the recall and continuing detention, arguing that no licence existed, that its conditions had not been notified, that the recall was unlawful, and that continued detention breached common law and Articles 5 and 14 of the Convention. He also sought immediate release before the scheduled release date.

1. Permission and outcome. Permission was granted, but the claim was refused.
2. Existence of a licence. Under section 244(1) of the Criminal Justice Act 2003, release after the requisite custodial period is release on licence. The provision does not impose two separate duties to release and issue a document. A physical document is practically useful, and may be required by policy, but it is not a statutory precondition to the existence of the licence. Statutory standard conditions are incorporated by law.
3. Notification and recall. The absence of notification did not invalidate recall on these facts. The conditions relied upon were statutory standard conditions, rather than obligations created by an individual order requiring personal notification. The relevant question was whether the claimant’s conduct was inconsistent with the purposes of licensed release and indicated an unmanaged risk to the public and to himself. The Secretary of State was entitled to recall him.
4. Continuing detention. Detention following recall must remain lawful and reasonably justified. The court did not treat the executive release decision as requiring immediate release regardless of its terms. The decision contemplated release when suitable accommodation became available. The evidence justified waiting for the identified accommodation, and the short further period was not irrational or unlawfully delayed.
5. Convention claims. Article 5 added nothing substantive to the common-law review in the circumstances. The Article 14 claim failed because the proposed comparator was inappropriate. Even if there had been different treatment, it was objectively justified by professional judgments concerning the claimant’s particular support and accommodation needs.