Mickey Scott, R (on the application of) v The Secretary of State for Justice & Anor

Recall of a prisoner on licence requires reasonable grounds for believing that a licence condition has been breached and a conclusion that recall is necessary for public protection. The threshold for the first limb is low. Continued detention may be justified where risk remains capable of being reduced by confinement, even if the risk is not imminent.

Reasons for recall must enable the prisoner to understand the substance of the case and make meaningful representations. Disclosure may be limited where necessary to protect an informant or another overriding public interest, provided an adequate gist is supplied.

The Secretary of State may decline executive re-release where conflicting evidence and continuing risk mean that the Parole Board should investigate the matter further. Delay in listing is not unlawful where the Parole Board has independently considered and rejected prioritisation or expedition under its flexible exceptional-circumstances framework.

The claimant, who was serving an extended determinate sentence for serious domestic sexual offending, was released on licence in October 2021. The Secretary of State revoked his licence and recalled him in February 2023 after information suggesting aggression and controlling behaviour in a domestic relationship.

The claimant challenged the recall, the refusal of executive re-release, the adequacy and timing of reasons and disclosure, the Parole Board’s refusal to expedite his oral hearing, and the delay before that hearing. His case was listed for an oral hearing in March 2024. The central issues were whether the decisions were unlawful and whether the review had been completed within a reasonable time.

1. Claim dismissed. The claim was substantially out of time in relation to the original recall and the adequacy of reasons. The court nevertheless considered the merits in the alternative.
2. The applicable recall test, drawn from R (Gulliver) v Parole Board and R (Jorgenson) v Secretary of State for Justice, required an objective assessment of whether there were reasonable grounds for concluding that a licence condition had been breached and whether recall was necessary for public protection. Both limbs were satisfied. The information concerning aggression and controlling behaviour, viewed against the claimant’s history of domestic abuse and recent warning for damaging property, provided reasonable grounds for believing that the good-behaviour condition had been breached. The Secretary of State was also entitled to rely on the assessed high risk to former and future female partners.
3. Under section 255C of the Criminal Justice Act 2003, executive re-release was unavailable unless the Secretary of State was satisfied that continued detention was unnecessary for public protection. The decision-maker was entitled to conclude that conflicting WhatsApp evidence, the complaint and continuing risk made the case unsuitable for immediate release and required fuller exploration by the Parole Board. This was a genuine and rational exercise of discretion.
4. The claimant had been given adequate reasons under section 254(2)(b) of the Criminal Justice Act 2003. The Part A Report explained the substance of the concerns, including alleged threatening, violent and controlling behaviour and the risk of escalation. The duty to provide reasons did not require disclosure of information which could expose the source to serious harm. Article 5(2) ECHR did not have the free-standing application contended for; in any event, the information supplied was sufficient.
5. The Parole Board had not misinterpreted its Listing Prioritisation Framework or acted irrationally. It was entitled to treat expedition as exceptional, consider the competing interests of other prisoners and require further evidence before deciding whether the claimant’s case warranted priority.
6. The Secretary of State and the Parole Board were not a single decision-making entity. The Parole Board exercised an independent judicial function in listing and expedition. In the circumstances, the delay before the oral hearing was not shown to be outside a reasonable time.

First-instance judicial review claim. The judgment records no earlier appellate decision.