Criminal Justice Act 2003, section 255

Recall of prisoners released early under section 246

Part 12 Sentencing

(1)If it appears to the Secretary of State, as regards a person released on licence under section 246—

(a)that he has failed to comply with [F441the curfew condition included in the licenceF441] , or

(b)that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence,

the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section.

(2)A person whose licence under section 246 is revoked under this section—

(a)may make representations in writing with respect to the revocation, and

(b)on his return to prison, must be informed of the reasons for the revocation and of his right to make representations.

(3)The Secretary of State, after considering any representations under [F442subsection (2)(a)F442] or any other matters, may cancel a revocation under this section.

(4)Where the revocation of a person’s licence is cancelled under subsection (3), the person is to be treated for the purposes of section 246 as if he had not been recalled to prison under this section.

(5)On the revocation of a person’s licence under section 246, he is liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large.

Definitions used in section 255 2

licence

“licence” means a licence under Chapter 6;

Defined in s.305(1) · see it in the full Act
prison

(2) In this Chapter, unless the context otherwise requires, “prisoner” includes a person serving a sentence falling within subsection (1)(b); and “prison” includes any place where a person serving such a sentence is liable to be detained.

Defined in s.237(2) · see it in the full Act

“prison” and “prisoner” are to be read in accordance with section 237(2);

Defined in s.268(1) · see it in the full Act

Cases considering section 255 14

R v Secretary of State for Justice

[2014] UKSC 39 · 2 July 2014

The provision permits recall while a home detention curfew remains in force for breach of licence conditions or where electronic monitoring can no longer be maintained. Recall under this provision during the requisite custodial period did not engage article 5(4). (see paras [10]-[12]; [44]; [58]) A recalled licensee must receive the reasons for recall and an opportunity to make representations. The court noted this as the statutory procedural safeguard, notwithstanding the absence of Parole Board review. (see paras [10]-[12]) The Secretary of State may cancel the revocation following representations. The court noted this as part of the procedural protection within the home-detention-curfew recall scheme. (see paras [10]-[12])

Foster v The Secretary of State for Justice

[2015] EWCA Civ 281 · 26 March 2015

The court identifies section 255 as the specific route for revoking an HDC licence and recalling the prisoner, with written representations as the statutory safeguard. The adequacy of that procedure was assessed under common-law fairness. (see paras [8]; [12]-[15]; [42]) The court applies the breach-of-condition route to the recall. It treats the statutory breach as sufficient to engage the power, without requiring proof of fault or risk. (see paras [8]; [12]; [34]; [41]) The court treats written representations as the prescribed procedural safeguard and considers whether fairness nevertheless required an oral hearing in the particular circumstances. (see paras [8]; [13]-[15]; [30]; [42]) The court records the statutory clarification that representations are made under section 255(2)(a), following amendment by LASPO 2012. (see para [8])

Whiston, R (on the application of) v Secretary of State for Justice

[2012] EWCA Civ 1374 · 25 October 2012

Section 255 permits the Secretary of State to revoke a section 246 licence and recall a prisoner while the curfew remains in force if a licence condition is breached or electronic monitoring is no longer possible. Its application without Parole Board review did not infringe article 5(4) because recall remained execution of the original determinate sentence (see paras [7]-[9]; [30]-[35]). Section 255(1) sets the conditions for recall while the curfew remains in force, including failed compliance or inability to monitor. The court accepted that a new fact must be established, but held that this did not sever the connection with the original custodial sentence (see paras [7]-[8]; [25]; [33]).

What each judgment says about section 255 is in the case-law panel in the full Act.

Explanatory note

586.Subsection (1) enables the Secretary of State to revoke the licence of an offender on Home Detention Curfew and recall him to prison if he has failed to comply with a licence condition or if his whereabouts can no longer be electronically monitored. Under subsection (2) if a person on HDC has his licence revoked, he must be informed of the reason when he returns to prison, and he is able to make written representations about the revocation. Subsection (3) enables the Secretary of State to cancel a revocation of an HDC licence after considering such representations. Under subsection (4) such a cancellation has the effect that the licence is taken not to have been revoked. Subsection (5) provides that an offender whose HDC licence is revoked may be detained, is to be considered unlawfully at large, and is subject to arrest.

All the explanatory notes for the Act

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F441Words in s. 255(1)(a) substituted (1.2.2015) by Offender Rehabilitation Act 2014 (c. 11), ss. 9(3), 22(1) (with Sch. 7 para. 5); S.I. 2015/40, art. 2(i)
  2. F442Words in s. 255(3) substituted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 113(2), 151(1) (with Sch. 15); S.I. 2012/2906, art. 2(d)

Commencement

  1. I112S. 255 wholly in force at 4.4.2005; s. 255 not in force at Royal Assent, see s. 336(3); s. 255 in force for certain purposes at 26.1.2004 by S.I. 2003/3282, art. 2, Sch.; s. 255 in force in so far as not already in force at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 19 (subject to art. 2(2), Sch. 2)