MT v The Secretary of State for Justice

JurisdictionEngland & Wales
JudgeMr Justice Hickinbottom
Judgment Date25 July 2013
Neutral Citation[2013] EWHC 4329 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date25 July 2013
Docket NumberCO/5134/2013

[2013] EWHC 4329 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

Birmingham Civil Justice Centre

33 Bull Street

Birmingham

West Midlands

B4 6DS

Before:

Mr Justice Hickinbottom

CO/5134/2013

Between:
MT
Claimant
and
The Secretary of State for Justice
Defendant

Jude Bunting (instructed by Stephen Solicitors) appeared on behalf of the Claimant

Miss Amy Mannion (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

Mr Justice Hickinbottom
1

The Claimant challenges the Secretary of State's decision of 13 February 2013 to revoke his licence and recall him to custody, pursuant to his powers under section 254(1) of the Criminal Justice Act 2003.

2

The background to this claim is as follows. On 23 October 2003, the Claimant was convicted in the Crown Court at Stoke-on-Trent of buggery with a boy under 14 years of age, indecent assault on a boy under 14 years age, and three counts of taking indecent photographs of a child. The victim of each offence was the Claimant's son, aged 13 at the time of the offences, which were committed when he was visiting the Claimant, whilst the boy was under his care, and following apparently several years of grooming. The Claimant pleaded guilty to each offence, although, as made clear in his pre-sentence report, he did not accept responsibility for his behaviour, nor did he appear to concede that the behaviour amounted to sexual abuse or indeed anything inappropriate.

3

In respect of the count of buggery, the Claimant was sentenced under the provisions of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 to a term of 6 years' imprisonment with an extended licence period of 4 years. He received lesser concurrent sentences in respect of the other matters, and was made subject to lifetime notification requirements under section 1 of the Sexual Offenders Act 1997, an order indefinite length restraining him from living with a child, and an order disqualifying him from working with children. That sentence meant that he would be released from custody on licence in October 2007, but would be subject to that licence until 11 October 2013.

4

The Claimant was duly released from custody on 12 October 2007, but he was recalled within three weeks, on 31 October 2007, following information that, in breach of the conditions of his licence, he had been writing letters to identified sex offenders in custody and had contact with his sister's children without prior approval of his probation officer.

5

He remained in custody until 11 April 2012 when he was, again, released on licence. The conditions of that licence included the following (capitals as in the original):

"5. While under supervision you must:

(vi) not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful reintegration into the community;

(vii) NOT TO RESIDE (EVEN TO STAY FOR ONE NIGHT) IN THE SAME HOUSEHOLD AS A CHILD UNDER THE AGE OF 18 WITHOUT THE PRIOR APPROVAL OF YOUR SUPERVISING OFFICER.

(xi) NOT TO HAVE UNSUPERVISED CONTACT WITH CHILDREN UNDER THE AGE OF 18 WITHOUT THE PRIOR APPROVAL OF YOUR SUPERVISING OFFICER AND THE APPROPRIATE SOCIAL SERVICES DEPARTMENT.

(xiii) NOT TO CONTACT OR ASSOCIATE WITH A KNOWN SEX OFFENDER OTHER THAN WHEN COMPELLED BY ATTENDANCE AT A TREATMENT PROGRAMME OR WHEN RESIDING AT APPROVED PREMISES WITHOUT THE PRIOR APPROVAL OF YOUR SUPERVISING OFFICER."

6

In relation to the licence, two other points are worthy of note. First, the objectives of the supervision (referred to in paragraph 5(vi), quoted above) were described in paragraph 1 as follows:

"… The objectives of this supervision are to (a) protect the public, (b) prevent re-offending and (c) help you resettle successfully into the community."

Second, by paragraph 7 of the licence, it was provided:

"If you fail to comply with any requirement of your probation supervision (set out in paragraphs 3, 4, 5 above), or if you otherwise pose a risk to the public, you will be liable to have your licence revoked and be recalled to custody. If you are sent back to prison and released before the end of your sentence, you will be subject to supervision."

7

The evidence is that, after his release in April 2012, the Claimant made significant efforts to engage with his supervision programme, including a specific "Better Lives" programme. His attendance appears to have been close to full: he attended 71 of 73 supervision appointments and, in respect of the two absences, he had good reason for his non-attendance. On the other hand, on 15 November 2012, he was sent a warning letter following the discovery that his mobile phone number was found in the memory of a phone of another registered sex offender, to whom the Claimant accepted he had given his number. As I have indicated, it was a condition of his licence that he should not contact known sex offenders save in circumstances which did not apply here.

8

Police officers are assigned to make unannounced visits to registered sex offenders to ensure that they are complying with the conditions and orders to which they are subject. At 11am on 11 February 2013, two officers made such a visit to the address at which the Claimant was living with his parents and adult nephew. The door was opened by that nephew, and his 2-year-old son who was visiting his father. The Claimant joined the officers and said he had returned home for a shower, where he had been when the officers had arrived. He was planning to go out straightaway. At the time of his return to his house, he said he did not know that his nephew's son was there. There is some dispute as to precisely what was said. The officer's report said that the Claimant had told them that the boy had been there when he had arrived home. He denies that that was the case, or that he said that it was.

9

The officers considered the Claimant to be defensive in manner, and very aggressive. When they said to him that he had placed himself a compromising position, he banged his hand on the table and shouted, "Fucking recall me then". When the officers said to him that they were unhappy about him being there and he should leave immediately, they reported him saying, "I'm fucking going any way" — and he stormed out of the house. As I understand it, the Claimant denies that he said or did that, too.

10

As a result of that incident, the following day (12 February), the Probation Service prepared a Request for Recall Report, setting out the circumstances of the visit the previous day. That report said that condition 5(viii) of the licence conditions had been breached; the Claimant had been dishonest with the Probation Service, because he had told them that children did not visit the property because of his presence; in their view, he had failed to employ appropriate strategies for dealing with risky situations; and, in their opinion, he posed a high risk of causing serious harm to children which was not manageable in the community. They requested a standard recall.

11

On 13 February, the Secretary of State revoked the Claimant's licence, and recalled him to custody. In the reasons given for the recall, the notice said:

"You have been recalled to prison because it has been reported by the Probation Service that you have breached conditions 5(vi) and (viii) of your licence."

The reasons then purport to record the two conditions which had been allegedly breached, as follows:

"You have been recalled to prison because it has been reported by the probation Service that you have breached conditions 5(vi) and (viii) of your licence:

5(vi) You failed to be well behaved, not commit any offence and not to do anything to undermine the purposes of your supervision which were to protect the public, prevent you from re-offending and help you to resettle successfully into the community.

5(viii) You stayed (even for one night) in the same household as a child under the age of 18 without the prior approval of your supervising officer."

12

These reasons, at least arguably, do not accurately reflect the relevant paragraphs in the Claimant's licence conditions; and Mr Bunting, for the Claimant, suggested that they smacked of a cut-and-paste job, reinforced (he said) by a reference immediately after to "the Home Secretary" (rather than the Secretary of State for Justice) being no longer satisfied that it was right for the Claimant to remain on licence, although it was on the Secretary of State for Justice's behalf that the revocation licence was in fact signed.

13

In this claim, the Claimant challenges that decision to revoke his licence and recall him to custody, on the following basis. It is only lawful to recall a prisoner if he has breached his licence. However, at the time of his recall, the Claimant was not in breach of his licence. He was not in breach of condition 5(viii), because he was not residing with his great nephew who had simply come on a short visit to see his father. Nor was he in breach of condition 5(vi), the breach of which was predicated on a breach of condition 5(viii). For good measure, nor was he in breach condition 5(ix) (which was not in any event referred to in the reasons) because he had no unsupervised contact with his nephew's son. Thus the recall was unlawful, and the Claimant ought to be released immediately. Mr Bunting also relied upon Article 5 of the European Convention of Human Rights to support the contention that the Claimant's continued detention was unlawful.

14

On 3 May 2013, Kenneth Parker J refused an application for interim relief. On 5 July, I granted permission to proceed and,...

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