JASON KESSIE-ADJEI (R on the application of) v SECRETARY OF STATE FOR JUSTICE

Detention following recall to prison remains within Article 5(1)(a) where it results from, follows and depends upon an unexpired determinate sentence imposed by a competent court. That remains so where the prisoner was unaware of the recall and was unintentionally given inaccurate information about the expected sentence end date. The absence of bad faith is material to the arbitrariness analysis. A separate proportionality assessment before post-recall detention is not required where detention remains pursuant to the original sentence. A policy governing discretionary credit for time spent unlawfully at large supplies no authority for detention and therefore need not itself satisfy the Article 5(1) requirements applicable to detention. A grant of judicial-review permission may, in unusual circumstances, preclude a later abuse-of-process objection.

The claimant challenged his detention between 15 January and 4 March 2021 after revocation of his licence and recall to prison. He accepted that the revocation and recall were lawful under the Criminal Justice Act 2003 and the Prison Act 1952, but alleged breaches of Article 5(1) based on arbitrariness, causation and proportionality. He also challenged PSI 03/2015 as insufficiently certain in its treatment of days spent unlawfully at large.

The claim followed an earlier claim in which permission had been refused. Permission for the present Article 5 grounds was later granted by Nicola Davies LJ. The court considered the substantive Convention challenges, the effect of that permission on abuse of process, and, contingently, damages.

1. Detention lawful under Article 5(1)(a). The claimant’s licence was lawfully revoked under Criminal Justice Act 2003, s 254, and he was consequently unlawfully at large under s 254(6). Under Prison Act 1952, s 49(2), time unlawfully at large did not ordinarily count towards sentence completion. His arrest and detention therefore concerned the unexpired balance of the determinate sentence imposed by the Crown Court.
2. Causation. The detention resulted from, followed and depended upon the original sentence. The authorities establish that the sentencing court’s sentence provides the legal basis for detention throughout the sentence, including after recall. The causal link was not broken: the detention did not exceed the unexpired sentence, remained connected with the sentencing objectives, and involved no exceptional circumstances equivalent to the Strasbourg bad-faith cases.
3. Arbitrariness and foreseeability. The claimant’s lack of knowledge of the revocation and the probation officer’s inaccurate, unintentional indication that the sentence had ended did not make the detention arbitrary. The Strasbourg principle concerning bad faith, dishonesty or subterfuge was materially different. The requirement of reasonable foreseeability was sufficiently met because detention remained pursuant to the original sentence.
4. Proportionality. No additional proportionality assessment was required before detention following recall. The length of detention was governed by the sentence imposed by the Crown Court, and the re-detention remained consistent with its objectives.
5. Policy challenge. PSI 03/2015 governed the discretionary power under Prison Act 1952, s 49(2), to credit time spent unlawfully at large. It did not provide the legal authority for detention, so its references to exceptional circumstances did not have to satisfy the Article 5(1) requirements applicable to the authority for detention.
6. Abuse of process. Permission ordinarily resolves an abuse issue at the permission stage, although the issue may sometimes be considered later. Here the permission order was unqualified, the abuse issue had been squarely before the permission judge, and no new relevant matters had arisen. The defendant was therefore precluded from pursuing the objection. Alternatively, after a full merits hearing, the proceedings would not have been abusive in the unusual circumstances.
7. The detention and PSI 03/2015 were not incompatible with Article 5(1) ECHR. The contingent damages assessment was unnecessary.

• High Court (Administrative Court): Lang J refused permission on the papers on 29 March 2021, including on abuse-of-process grounds.
• High Court (Administrative Court): Linden J refused permission on renewal and held that the Article 5 claim was abusive; judgment dated 7 May 2021.
• Court of Appeal: Nicola Davies LJ granted permission to apply for judicial review on Article 5 grounds by order dated 20 August 2021.
• High Court (Administrative Court): the present court rejected the Article 5 challenges and held that the permission order precluded the abuse objection.