Kessie-Adjei, R (On the Application Of) v Secretary of State for Justice

For the purposes of Article 5 ECHR, detention following recall from licence remains authorised by the original sentencing court. The prisoner’s lack of knowledge of recall, official assurances, and delay in arrest do not alter the clear domestic legal position that revoked licence time spent unlawfully at large does not count towards sentence.

A renewed judicial review claim may be an abuse of process where the same issue was fully argued and permission refused previously. The court must apply a broad, merits-based assessment of finality, fairness, public and private interests, and the reasons for re-litigation. A decision under section 49(2) of the Prison Act 1952 is not irrational merely because it differs from a rejected recommendation concerning re-release.

The claimant had been released on licence from a 30-month sentence. His licence was revoked after a further offence, but he was not arrested for about a year and was led to believe that his sentence had ended. He was later arrested and returned to custody.

He renewed an application for permission to challenge his detention under Article 5 ECHR and challenged the defendant’s decision under section 49(2) of the Prison Act 1952 to count 58 days of unlawful-at-large time towards his sentence. Permission for an Article 5 challenge had previously been refused after an oral hearing. The issues were whether the renewed Article 5 claim was arguable or abusive, and whether the section 49(2) decision was irrational.

1. Article 5. The claim was not reasonably arguable. Under sections 254(1) and 254(6) of the Criminal Justice Act 2003, revocation of a licence makes the prisoner liable to detention in pursuance of the sentence and unlawfully at large if not detained. Under section 49(2) of the Prison Act 1952, unlawful-at-large time does not count unless the Secretary of State directs otherwise.
2. The principle in R (S) v Secretary of State for the Home Department [2003] EWCA Civ 426 applied. Knowledge of revocation is irrelevant to the domestic legal position. The sentence remains authorised by the sentencing court for Article 5(1)(a) purposes. The legal position was sufficiently certain and foreseeable. The claimant’s assurances and the delay did not make his later detention arbitrary.
3. The court did not decide whether an exceptionally long delay between breach and arrest could sever the necessary connection between detention and conviction. That issue did not arise on these facts.
4. Abuse of process. Applying Johnson v Gore Wood & Co [2002] AC 1, the renewed Article 5 claim was abusive. The issue had been fully argued before Mr Clayton QC, who refused permission. The later evidence did not materially alter the basis of the claim. The claimant had not shown good reason to issue fresh proceedings rather than appeal. The public interest in finality prevailed.
5. Section 49(2) decision. The challenge was not reasonably arguable. The decision-maker was considering a different statutory question from the rejected recommendation concerning re-release within 28 days. The decision-maker could rely on the same risk assessment while considering wider factors and was not required to consult the offender manager.
6. The decision took account of the relevant considerations, including the claimant’s lack of knowledge, delay, licence conditions, public protection, and the extent of disadvantage. The reference to the 50 per cent guidance in PSI 03/2015 was poorly worded but did not amount to a misdirection. Permission was refused on all grounds.

• Administrative Court: Lang J refused permission on the papers on 29 March 2021.
• Administrative Court: Mr Richard Clayton QC, sitting as a Deputy High Court Judge, refused permission and interim relief after an oral hearing on 29 January 2021.
• Administrative Court: The renewed application was refused by Linden J. The Article 5 claim was abusive and not reasonably arguable; the section 49(2) challenge was also not reasonably arguable.