Ashley Foster v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice Jackson,Lady Justice Black |
| Judgment Date | 26 March 2015 |
| Neutral Citation | [2015] EWCA Civ 281 |
| Docket Number | Case No: C1/2013/2349 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2015 |
[2015] EWCA Civ 281
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lady Justice Rafferty & Mr Justice Kenneth Parker
CO/12094/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Jackson
and
Lady Justice Black D.B.E.
Case No: C1/2013/2349
Hugh Southey Q.C. (instructed by Hickman & Rose) for the Appellant
Nathalie Lieven Q.C. (instructed by Treasury Solicitor) for the Respondent
Hearing date: 23 February 2015
This is the latest in a line of cases concerning the rights of prisoners to an oral hearing prior to an adverse decision affecting their prospective liberty or the conditions in which they are detained. This case concerns the recall to prison of a prisoner released on Home Detention Curfew (HDC) and is based on the contention that the common law duty of fairness requires that the prisoner is provided with the opportunity of an oral hearing to advance submissions as to why he should not have been recalled.
The Divisional Court (Rafferty LJ and Kenneth Parker J) dismissed the application for judicial review: see [2013] EWHC 1951 (Admin). Leave to appeal was initially refused on paper by Treacy LJ but subsequently granted by Elias LJ in the light of the possible arguments based on a decision in Osborn and Booth v Parole Board [2014] AC 1115 and the then awaited further judgment of the Supreme Court in Whiston v Secretary of State for Justice (now available: [2014] 3 WLR 436).
The Statutory Regime
The legislation permits release from prison under two different types of licence. At the relevant time, the first arose following sentences in excess of 12 months imprisonment and is an entitlement to release, on licence, at the conclusion of the custodial term of one half of the sentence: s. 244 of the Criminal Justice Act 2003 ("the 2003 Act"). Subsequent to these proceedings, this regime has become far more extensive: see ss. 1 and 2 of Offender Rehabilitation Act 2014 inserting s. 256AA into the 2003 Act and The Offender Rehabilitation Act 2014 (Commencement No 2) Order 2015.
The second licence is discretionary and allows the Secretary of State (originally the Home Secretary, now the Secretary of State for Justice, hereafter referred to as the Secretary of State) the discretion to release on licence for part of and during the custodial term. This is covered by s. 246 of the 2003 Act subsequently amended by the Legal Aid, Sentencing and Punishment of Offender Act 2012 ("LASPO 2012"). At the date of the recall, however, the provision was in these terms:
"(1) Subject to sub-sections (2) to (4), the Secretary of State may –
a) release on licence under this section a fixed-term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period ….
(2) Sub-section (1)(a) does not apply in relation to a prisoner unless –
a) the length of the requisite custodial period is at least six weeks, and
b) he has served –
i) at least four weeks of that period, and
ii) at least one-half of that period."
Section 250(5) provides that the licence pursuant to s. 246 must be subject to a curfew condition in accordance with s. 253 the relevant part of which (prior to amendment by LASPO 2012) provided:
"(1) … a curfew condition is a condition which –
a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified … and
b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
(2) The curfew condition may specify different places or different periods for different days, but may not specify periods which amount to less than nine hours in any one day (excluding for this purpose the first and last days of the period for which the condition is in force).
(3) The curfew condition is to remain in force until the date when the released person would (but for his release) fall to be released on licence under section 244. "
As sub-section (3) makes plain, the curfew condition (which usually specifies the offender's home) cannot be made to operate beyond the period of the custodial term when the prisoner would in any event be entitled to be released although, for the purposes of accuracy, it is clear that release on licence of post-custodial term prisoners may exceptionally have a curfew condition: see s. 250(4)(b) of the Act; art 3(2)(b) of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005/648, PC 29/2007 Annex A and PSO 6000 Chapter 14. This exception does not apply in the present case.
The Secretary of State may revoke an HDC licence and recall the prisoner to prison by one of two different statutory routes. First, s. 254 of the 2003 Act gives the Secretary of State a general power to revoke any licence and recall the licensee. If this power is exercised, the prisoner may be automatically released under s.255B(1) but at any time before he is released, he may make representations whereupon, pursuant to s. 255B(4), his case must be considered by the Parole Board. If under s. 255A the prisoner does not fall into the automatic release provisions in s. 255B then no automatic release is available and release is determined by the Parole Board or Secretary of State in accordance with s. 255C: these provisions were inserted by s. 29(2) Criminal Justice and Immigration Act 2008. It is then the responsibility of the Board to determine whether the recall should be confirmed.
Second, s. 255 of the 2003 Act gives the Secretary of State a specific power to revoke a licence issued under s. 246. This power can only be exercised when the curfew condition is in force, that is, until the point when the prisoner would be entitled to release on licence as of right under s. 244. There is no right of review of the s.255 power by the Parole Board but the statute does provide procedural safeguards. At the relevant time, this power and the safeguards were in these terms:
(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 any condition included in his licence, 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 subsection (2)(b) [ sic] or any other matters, may cancel a revocation under this section.
LASPO 2012 amended s. 255(3) to make it clear that representations are made under s. 255(2)(a) and not s. 255(2)(b); there have since been further amendments as a consequence of the Offender Rehabilitation Act 2014.
The Secretary of State's discretion to release on HDC under s. 246 is exercised by delegates, applying mandatory guidance issued on his behalf. Thus, all prisoners released on HDC must have a licence that includes standard curfew conditions. The curfew is electronically monitored and typically requires that between 7.15 p.m. to 7.15 a.m. every day, the released prisoner is required to remain at the curfew address. Condition 9 states:
"Your compliance with the conditions of the [HDC] will be monitored by SERCO as the supplying company. You must provide the supplier with access to the curfew address to install and check the monitoring equipment and electronic tag. Such visits will be made during the curfew hours but not between midnight and 6.00 a.m. However, the supplier may visit the curfew address between midnight and 6.00 a.m. in order to investigate a reported violation."
One other aspect of the regime then in force requires mention. At the material time, when prisoners have been recalled to custody under s. 255(1)(a), the policy of the Secretary of State was that they were presumed to be unsuitable for HDC should they come to serve sentences in the future. Thus, Prison Service Instruction 2006/31 thus provided:
"[Prisoners who have been recalled under s. 255(1)(a)] are statutorily eligible to be considered for HDC but have demonstrated, by their behaviour on licence, doubts about their ability to comply with licence conditions. The Home Secretary has therefore decided that in order to maintain public confidence such prisoners must be presumed unsuitable for HDC unless there are exceptional circumstances." [Emphasis in the original]
I assume that this policy was adopted by the Secretary of State.
The Facts
The background facts are set out in detail in the judgment of Kenneth Parker J and can be summarised briefly. Having been sentenced to a term of 3 1/2 years' imprisonment for an offence of possession of a controlled drug with intent to supply, the appellant was only entitled to automatic release (after he had served half the sentence) on 14 December 2012. On 2 August 2012, however, the Secretary of State for Justice authorised his release on HDC; this was on conditions which included...
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