Jason Kessie-AdjeiI v Secretary of State for Justice

Detention following lawful revocation of a licence and recall to prison is not arbitrary merely because administrative delay, inaccurate reassurance or failure to notify occurred. Article 5(1) requires a domestic legal basis, compliance with national law, legal certainty and a sufficient causal connection between the conviction and later detention.

Release on licence does not end the punitive sentence. A person who breaches the licence may be detained to serve the outstanding balance, unless exceptionally the passage of time or changed circumstances breaks the causal link. A policy governing whether time unlawfully spent at large counts towards the sentence is not itself the basis of detention. The expression “exceptional circumstances” may be sufficiently foreseeable without further definition.

The appellant was sentenced to 30 months’ imprisonment, released on licence, and later recalled after committing a further offence. His licence was revoked in January 2020, but he was not arrested until January 2021. The Secretary of State exercised a discretion so that part of the period spent unlawfully at large counted towards his sentence. The appellant was released in March 2021.

The High Court dismissed his challenge to the lawfulness of his detention. He appealed, arguing that the delay, misleading statement by his probation officer, failure to notify him of revocation, and the policy governing time spent unlawfully at large made the detention unforeseeable or causally disconnected from the original sentence. The central issues concerned arbitrariness, foreseeability, causal connection and the legal certainty of the policy.

The appeal was dismissed. The other members of the court agreed with the judgment of Lord Justice William Davis.

1. Article 5(1) requires detention after conviction to have a domestic legal basis and to comply with national law. Those requirements are not exhaustive. The detention must also be compatible with the Convention’s protection against arbitrariness, including legal certainty, absence of bad faith or deception, a sufficient causal connection with the conviction and sentencing objectives, and a proportionate relationship between the detention ground and the detention. The principles in James v United Kingdom (2013) 56 E.H.R.R. 12 and Del Rio Prada v Spain [2013] EHCR 307 were applied.
2. The appellant’s detention was foreseeable. He knew the terms of his licence and knew that committing a further offence made him liable to recall. Revocation under section 254(1) of the Criminal Justice Act 2003 and the resulting arrest were authorised by law.
3. The causal link between the original sentence and the later detention remained intact. The appellant was detained to serve the outstanding part of the sentence. Release on licence did not divide the sentence into a punitive period and a separate risk-management period. The unexplained delay was serious administrative incompetence, but it fell far short of the extreme circumstances required to break the causal link. The approach in R(Khan) v Secretary of State for Justice [2020] EWHC 2084 (Admin) was applicable.
4. The inaccurate statement by the probation officer did not cause the detention. The case was materially different from Čonka v Belgium (2002) 34 E.H.R.R. 54, where the authorities deliberately misled individuals to facilitate their immediate detention. The failure to send a letter did not affect foreseeability because notification of revocation was not statutorily required.
5. PSI 3/2015 was not the basis of detention. It implemented the discretion under section 49(2) of the Prisons Act 1952 to reduce the period otherwise outstanding. Article 5 did not apply to the policy itself. In any event, the requirement for exceptional circumstances was sufficiently accessible and foreseeable; further definition would risk fettering the discretion.

The detention was therefore not arbitrary and did not violate Article 5.

• Court of Appeal (Civil Division): Appeal dismissed on 23 June 2023.
• High Court of Justice, King’s Bench Division, Administrative Court: On 30 March 2022, Mrs Justice Heather Williams dismissed the challenge to the lawfulness of the detention.