Mark Nodwell, R (on the application of) v Secretary of State for Justice & Anor

Procedural fairness in a prison-recall decision is context-specific. In an emergency recall, the decision-maker is not generally required to investigate or obtain an offender’s explanation before acting where the available material reasonably indicates a licence breach, an imminent risk of serious harm and the necessity of recall. The assessment must account for the urgency of the process, the public-protection purpose of recall and the statutory and policy safeguards for representations and post-recall review. The conclusion depends on the particular facts and does not establish that investigation is never required.

The claimant sought judicial review of the Secretary of State’s decision to revoke his licence and recall him to prison under section 254 of the Criminal Justice Act 2003. The recall followed a room search at approved premises which disclosed steroids and a mobile phone containing threatening and drug-related messages. The messages were later found to pre-date the claimant’s imprisonment.

The claimant argued that the decision was procedurally unfair because the probation and approved-premises staff had not checked the dates of the messages before the emergency out-of-hours recall. The central issue was whether fairness required further enquiry before the recall decision was made.

1. The claim was dismissed. The recall decision was not vitiated by procedural unfairness.
2. The governing principles were drawn from the authorities summarised in R (Wilson) v Secretary of State for Justice and adopted by the court. Recall requires material upon which the Secretary of State could reasonably conclude that a licence breach had occurred and that recall was necessary for public protection because the risk could not safely be managed in the community. The court must review legality and fairness, not substitute its own primary decision.
3. Procedural fairness is fact- and context-specific. The court distinguished Wilson, where information already known to the offender manager had not been passed to the decision-maker. Wilson did not establish a general duty to investigate information supplied by approved-premises staff, or to discover information that was not known at the time.
4. The emergency and out-of-hours procedures materially affected the assessment. They were reserved for cases requiring immediate action and required a recall decision within two hours. The public-protection purpose of recall, the claimant’s criminal history, the nature of the messages, the alleged connection with the index offence, the steroids and the withdrawal of the approved-premises bedspace provided sufficient material for the recall decision.
5. The absence of a pre-decision enquiry into the message dates did not make the process unfair. That conclusion was specific to the case and did not establish that investigation or consultation is never required. The statutory safeguards, including the opportunity to make representations and subsequent review for executive release, formed part of the relevant context.