Matthew Wilson (R on the application of) v Secretary of State for Justice

A recall decision must be based on reasonable grounds and made through a procedurally fair process. The decision-maker must receive materially accurate information, including a significant denial directly bearing on the alleged licence breach. The court should not impose an extensive investigation or consultation duty where public-safety concerns justify urgent action, but procedural restraint does not permit a misleading recall report. A failure to disclose material information may justify quashing the recall where it cannot be said that the outcome would highly likely have been substantially the same. The availability of later Parole Board review does not prevent judicial review where the review timetable would make the challenge practically ineffective.

The claimant, released on licence after serving half his sentence for violent disorder, was recalled to custody by the Secretary of State on 10 February 2022. The recall was based principally on alleged breaches of licence conditions requiring good behaviour and notification of developing intimate relationships with women.

The probation officer had received allegations that the claimant was developing a relationship with another woman. She spoke to him and received his denial, but the denial was not included in the recall report provided to the Secretary of State. The claimant sought judicial review, alleging procedural unfairness, irrationality and disproportionality. The central issue was whether the omission of his denial rendered the recall decision unlawful.

1. Outcome. Permission was granted. The decision to recall the claimant was declared unlawful and quashed. His release was directed. The damages claim for false imprisonment was adjourned and costs were reserved.
2. The authorities establish that recall requires reasonable grounds for concluding that a licence condition was breached and that recall is necessary for public protection. The court must respect the expertise of the Probation Service and Secretary of State and must not substitute its own assessment of risk. Nor should it impose a heavy investigation or consultation obligation before recall.
3. Those limits do not remove the requirement of procedural fairness. The decision-maker and those supplying information must ensure that the material provided is reasonably accurate. Here, the Secretary of State was told that the claimant was in a developing intimate relationship, but was not told that he denied this. The recall report was therefore misleading on a central issue.
4. The court did not need to decide whether the claimant had to be consulted before the recall request. The probation officer had in fact informed him of the allegation and obtained his response. The unlawfulness arose from failing to communicate that response to the Secretary of State, not necessarily from failing to consult.
5. The Secretary of State could not establish under section 31(2A) of the Senior Courts Act 1981 that the outcome would highly likely have been substantially the same. The omitted material, including the claimant’s denial, the alleged partner’s denial, and the ambiguous supporting evidence, might have affected the assessment.
6. On the assumed basis that the licence breach had been established, the court was not persuaded that recall would have been disproportionate. That issue was academic in light of the procedural defect.