Jason Kessie-Adjei v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice William Davis,Lord Justice Phillips,Lady Justice Simler |
| Judgment Date | 23 June 2023 |
| Neutral Citation | [2023] EWCA Civ 720 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA2022000753 |
[2023] EWCA Civ 720
Lady Justice Simler
Lord Justice Phillips
and
Lord Justice William Davis
Case No: CA2022000753
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATION COURT
MRS JUSTICE HEATHER WILLIAMS
CO/544/2021
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey KC (instructed by Scott-Moncrieff & Associates Ltd) for the Appellant
Tom Richards KC (instructed by GLD) for the Respondent
Hearing date: 8 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 30 March 2022 Mrs Justice Heather Williams dismissed the appellant's challenge to the lawfulness of his detention from 15 January to 4 March 2021. The appellant had been recalled to prison after revocation of his licence. The recall was lawful as a matter of domestic law. The appellant's case was that his detention was in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”). He also argued that HMPPS policy PSI 03/2015 did not conform with Article 5 of the Convention in respect of the discretionary power to disapply the effect of Section 49(2) of the Prison Act 1952.
The issues in the appeal are
(a) whether the detention was incompatible with Article 5(1) because it was arbitrary in the sense of it being unforeseeable and/or because there was no causal link between the original sentence and the later detention; and
(b) whether the policy applied in the appellant's case was incompatible with Article 5(1) because it failed to meet the requirement of legal certainty.
The judge found that there was no incompatibility with Article 5(1) on any of the bases put forward by the appellant. He argues that she fell into error.
Factual background
The appellant was born in May 1995. In May 2016 in the Crown Court sitting at Inner London he was sentenced to a period of 24 months' imprisonment for an offence of robbery. The sentence was suspended for two years. On 9 February 2018 he appeared in the Crown Court sitting at Southwark. For an offence of possessing a bladed article in a public place he was sentenced to 12 months' imprisonment. That offence had been committed during the operational period of the suspended sentence. The suspended sentence was activated in part. The appellant was ordered to serve 18 months of that sentence to run consecutively to the sentence imposed for possessing a bladed article. The total sentence was 30 months' imprisonment.
On 3 April 2019 the appellant was released on licence. He was provided with the written terms of that licence. Amongst other things he was required to be of good behaviour and not to commit any other offence. He was told that failure to comply with any requirement would mean that the licence would be liable to be revoked. The appellant had a supervising probation officer allocated to him. This was a Mr Haddow. Mr Haddow had only been in post for a few weeks before assuming responsibility for supervising the appellant.
On 12 November 2019 the appellant was arrested for an offence of having a bladed article in a public place. He was charged with that offence. He appeared at the Medway Magistrates' Court. His case was adjourned for a trial early in 2020. The appellant did not tell Mr Haddow about these events. Mr Haddow found out about the new charge on 17 December 2019 from a Probation Service computer database. He arranged to meet the appellant on 31 December 2019. At the meeting the appellant made it clear that he was aware of the possibility of recall to prison. Mr Haddow said that no decision had been made. That was because it required consideration by more senior colleagues in the Probation Service.
On 10 January 2020 Mr Haddow was told to initiate the recall process. He did so. The process was completed by a senior colleague. On the same day the Public Protection Casework Section of the Probation Service confirmed that the appellant's licence had been revoked. Mr Haddow received a written notification which stated that the revocation order had been sent to the police with a request that the appellant be arrested.
On 9 March 2020 the appellant was sentenced in respect of the offence he had committed the previous November. He was sentenced to a period of imprisonment suspended for 2 years with an unpaid work requirement. Mr Haddow had a face to face meeting with the appellant shortly after the sentence was imposed. That was the first contact between them since the meeting on 31 December 2019. Thereafter, Mr Haddow had regular telephone contact with the appellant by way of supervision. The available computer records kept by Mr Haddow show that there were four telephone conversations between 17 April 2020 and 28 May 2020. The frequency then reduced to monthly contact, the last record of contact being at the end of September 2020. The computer records indicate that the supervision was in relation to the suspended sentence.
At no point did Mr Haddow inform the appellant that his licence had been revoked. His evidence was that, because the appellant had not told him of the arrest in November 2019, he was concerned that the appellant would abscond were he to do so. At some point in the weeks leading up to what would have been the date of the expiry of the appellant's licence in July 2020, Mr Haddow made a comment to the appellant that it was good news that his licence was coming to an end. This apparently was in response to a remark made by the appellant about the expiry of his licence. Mr Haddow at that time was not thinking about the fact that the clock on the licence had stopped because it had been revoked yet the appellant was still at large. The judge found that Mr Haddow did not act in bad faith. There was no deliberate attempt by him to mislead the appellant.
On 15 January 2021 the appellant was arrested by the police. They did so in reliance on the revocation of licence dated 10 January 2020. That gave them the power to apprehend the appellant without a warrant. There is no evidence about why the police acted in January 2021. Nor is there any evidence as to why they did not arrest the appellant at some earlier stage.
Because the appellant had not surrendered when his licence was revoked, he was deemed to have been unlawfully at large since 10 January 2020. That was so even though he had not been informed of the revocation of his licence, there being no requirement under the relevant procedure for someone in the appellant's position to be so informed. The usual effect of someone having been unlawfully at large was that any time so spent would be left out of account in calculating the outstanding sentence. In the appellant's case that meant that he had 174 days remaining on his sentence with a release date of 7 July 2021. However, the appellant's solicitors requested that the Secretary of State should exercise his discretionary power under PSI 3/2015 not to leave out of account the days when the appellant was unlawfully at large. The Secretary of State concluded that there were exceptional circumstances which justified 58 days of the time spent unlawfully at large counting towards the sentence. Those circumstances were the appellant not being informed of the revocation and recall so that he was in that sense unknowingly unlawfully at large. That gave a release date of 10 May 2021.
The appellant also made representations in relation to his recall pursuant to section 254(2) of the Criminal Justice Act 2003. They were considered by the Parole Board. On 4 March 2021 the Parole Board decided that the test for release was met i.e. it was no longer necessary for the protection of the public that the appellant should be detained. The appellant was duly released on 8 March 2021.
The legal framework
The power to recall a prisoner appears in section 254 of the 2003 Act. The relevant provisions for our purposes are:
(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1)—
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations…..
(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large.
The significance of the prisoner being unlawfully at large is to be found in section 49 of the Prisons Act 1952:
(1) Any person who, having been sentenced to imprisonment….is unlawfully at large, may be arrested by a constable without warrant and taken to the place in which he is required in accordance with law to be detained.
(2) Where any person sentenced to imprisonment is unlawfully at large at any time during the period for which he is liable to be detained in pursuance of the sentence or order, then, unless the Secretary of State otherwise directs, no account shall be taken, in calculating the period for which he is liable to be so detained, of any time during which he is absent from the place in which he is required in accordance with law to be detained….
In practical terms, once the licence has been revoked, the clock stops in respect of the sentence imposed. The legislation does not provide for any period of time within which the arrest must occur. The prisoner indefinitely remains liable to be detained, the reason for the detention being the original sentence.
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