R (Benson) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 20 August 2007 |
| Neutral Citation | [2007] EWHC 2055 (Admin) |
| Docket Number | CO/6693/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 August 2007 |
[2007] EWHC 2055 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Collins
CO/6693/2007
Mr Benjamin Myers (instructed by Messrs Belshaws Solicitors) appeared on behalf of the Claimant
Ms Lisa Busch (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
The claimant, Anthony Benson, is detained in prison as a result of his conviction for an offence of assault occasioning actual bodily harm. He was sentenced to 12 months' imprisonment on 11th March 2007. He was entitled to consideration by the Secretary of State of the exercise of his powers under section 246 of the Criminal Justice Act 2003 so that he could be released on licence effectively on what is called PID, that is to say released subject to conditions which included that he wear a tag which was to be monitored by the relevant provider, namely GS4. There were various other conditions to which I will come in due course. He was so released on 1st June 2007. Because he was serving a sentence of 12 months and one day, the release could not occur until he had served three months of his sentence (such is made clear by section 246) and the PID would last until he was entitled to general release once he had served half of the sentence imposed.
He was recalled on 24th July, it being alleged that he was in breach of conditions imposed by his licence. The result of that is that he is unable to be released again on the PID system and so must serve the balance of the half of his sentence which would take him to 7th September, when he will be entitled to release.
The claimant asserts that he is entitled in accordance with Article 5(4) of the European Convention on Human Rights to have an independent assessment of whether he should have been recalled and the system which operates does not provide him with that independent consideration. Secondly, he argues that in the circumstances the decision which resulted in his recall was unfair in as much as he was not given a proper opportunity to meet the allegations that were made and, in addition, it would seem that an erroneous approach was adopted to what had to be established in order to justify his recall to custody.
I deal first with the background in relation to the circumstances of the release and the recall. The licence contained a number of conditions, including a home detention curfew, which meant that he was required to be at his address effectively overnight. There were variations to it but essentially that is what it established. I do not think it is necessary for me to go into the precise details of the timing which were at any particular moment in issue. Condition 9 provided:
"Your compliance with the conditions of the Home Detention Curfew will be monitored by
GROUP 4 SECURICOR
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 your curfew hours but not between midnight and 6.00am. However, the supplier may visit the curfew address between midnight and 6.00am in order to investigate a reported violation."
The effect of that was that visits to identify, if they were not to be between midnight and 6.00am, would have had to have been in the evening between, I think it was, 8.30pm and midnight, which was part of the time that he was required to be at home. He was not required to be at home during the day, indeed from 6.00am, because he was working and was working long hours. That is one of the problems that he says led to his failure to afford access, which was the concern of the Secretary of State and what led to his recall.
There is a somewhat curious document which records that his licence had been revoked by a revocation order issued on 26th June 2007 because he had tampered with his tag. However, quite why that was issued is unclear. It certainly has not been relied on as a ground for recalling him and there is no evidence before me, nor was there any suggestion that it played a part in the decision when the claimant asked the relevant official in the ministry to reconsider his recall. GS4 have a duty to produce what is called a Curfew Activity Report and to notify the authorities if there has been a breach and to that end they make a number of checks, no doubt checking on the tag and whether it is working or appears to be working. There has been produced a copy of the report for 4th and 5th July, which are the relevant dates. This shows that there is a record of what is described as a PID Tamper at 7.58pm on the 4th. There was then apparently a call at 8.01 but there was no answer. That, of course, would not be in any way a breach because the curfew did not commence until 8.30. There is then a record that at 8.49 the claimant left home during curfew but there was a call made and, on the claimant's case, it was a call made him to him. It is described as "pd call" but when he called them, as is apparent from a later entry in the report, it is described as a call from him. Accordingly, I have no reason to believe other than that there was indeed a call to him which showed he was at home at 8.57, some seven or eight minutes after he is supposed to have left home. There is then a record that at 9.12 he is recorded as returning home late. Those entries strongly suggest that there may indeed have been some fault on the tag and it was obviously decided, and rightly decided, that there was a need to pay a home visit and investigate. Indeed, he was informed in the course of the call at 8.57 that there would be some such call and that a visit was required. Knowing that, he has stated that his wife waited up until midnight, expecting, not unreasonably expecting, and that if there was to be a call it would take place before midnight. There was no such call and so she went to bed. He had already gone to bed. He claims that he was working long hours and as a result he went to bed and slept soundly through the night. He also stated in the course of the call that he had not been in violation of the curfew but had been having a bath and it may be that that somehow had affected the integrity of the tag.
In any event, what happened was that someone from GS4 went round to the premises at three minutes to one in the morning of 5th July. The record states nothing other than what was said at 1.43:
"Visit required see previous log - Actioned by [someone] as Not Available at 05.07.2007 01:43:59."
Actually, what appears to have happened is that, as I say, someone went round at three minutes to one. I have been provided with a statement from the relevant employee of GS4 who states:
"I attended [the address] at 00:57hrs on 5 July 2007. I rang the doorbell a couple of times but there was no response. So I knocked hard on the door and rang the doorbell together three times but there was no reply. I called the contact number but again there was no reply.
I booked on site at 00.57hrs and booked off site at 01.05hrs so I was on site a total of 8 minutes. The house was in darkness with the windows closed. In my opinion I would have expected a reply if anyone was present at the time of my visit."
There was a card left telling the claimant of the abortive visit and asking him to phone and he did so at 6.10 in the morning, stating that he was at home, had gone to bed at about 11.00 and informing GS4 that his doorbell did not work so it was necessary to knock rather than simply to ring. It is fair to say that the statement before me indicates that there was knocking as well as ringing.
Although I do not have a log in relation to it, there was a second incident at 10.15 on the evening of 9th July, this being, as I understand it, a rather belated follow up as a result of what had happened on the 4th and 5th. In any event, I have no evidence of what triggered that, save that on the document that I have there is reference back to the previous events of the 4th and 5th and what this records is that at 10.15pm the individual in question:
"Visited subject's address and knocked on the door, there was no answer. Premises in darkness. Contact letter left. No answer to contact number."
This again has been expanded by a statement produced by the relevant official who indicates that he did attend at that time and date. He says he knocked "by a sequence of 3 loud knocks repeated 3 times". He had not tried to use the doorbell because he was aware that the information had been given that it did not work. He rang the contact number but received no answer. He could not recall if the phone call went unanswered or if there was an answer phone. He was there for some five minutes, all the lights at the front of the property were out and he did not recall if any of the windows were open and it was his view that a normal person would have been woken by his knocking. For some reason the decision to recall was not executed until the 19th when the claimant was informed by his probation officer that the recall existed, whereupon he went of his own accord and surrendered himself to custody.
Section 255 of the Act provides by subsection (1) as follows:
"(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...
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