R Calder v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Gore,HIS HONOUR JUDGE GORE |
| Judgment Date | 31 October 2014 |
| Neutral Citation | [2014] EWHC 4138 (Admin) |
| Date | 31 October 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1863/2014 |
[2014] EWHC 4138 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
His Honour Judge Gore QC
(Sitting as a Judge of the High Court)
CO/1863/2014
Miss Deans appeared on behalf of the Claimant
Mr Simons appeared on behalf of the Defendant
This is the substantive application for judicial review by the claimant, currently a serving prisoner, of the decision to revoke his licence and recall him to prison, permission to apply having been granted by His Honour Judge Raynor QC without a hearing on 14th May 2014. The hearing bundle extends to probably over 1000 pages including the un-paginated contents trawling over a wide range of events and issues, few of which are in fact relevant.
The relevant background is as follows. The claimant is now 32. His date of birth is 15th February 1928. He has a long depressing and serious criminal history involving 10 convictions for 26 offences not including cautions, all for offences not involving violence to the person before on 2nd November 2006 he made a vicious attack on a complete stranger, stabbing him and all of that while allegedly so under the influence of drink or so debilitated by his noncompliance with medication for a pre-existing Bipolar Disorder that he had no memory of events at all. He was arrested, charged and bailed and he absconded because only that explains why he was not tried until 12th February 2009, over 2 years later.
Before and during this history it has been accepted both in the papers in this case and in other cases, that he became the senior operational family member of a violent organised crime family engaged in the importation and distribution of cannabis and cocaine, so it is alleged, and it is also alleged not adverse to enforcing discipline and respect, as they see it, by resorting to violence including the use of guns on those who stand in their way. In that sense, he is seen as having a leadership role in matters that it is right to say he has never been charged with or convicted of.
When eventually sentenced in this first conviction for violence, he received a custodial term of 68 months and an extended licence for 36 months, the total length of sentence therefore being 8 years and 6 months, an indication of the court's assessment of the gravity of this offence of wounding with intent. His so-called sentence expiry date therefore is 12th January 2017.
He obviously conducted himself compliantly while in prison, sufficiently to be released on licence on 15th March 2011 after having served half of his custodial term. His licence included, as is standard, the following provision which is to be found at page 44 of the hearing bundle:
"While under supervision you must:
(i) be well behaved and not commit any offence and not do anything which would undermine the purposes of your supervision which are to protect the public prevent you from re-offending and help you to resettle successfully into the community."
Of this standard condition His Honour Judge Pelling QC, in R (on the application of McDonagh) v Secretary of State for Justice [2010] EWHC 369 said this at paragraph 28:
"I conclude that it does not merely mean not to commit criminal offences, for if that had been the intention then there would have been no need to include the words 'to be well behaved' in the relevant part of the licence at all. Further, in my judgment the scope of the phrase is not controlled or delimited by the words 'which are to protect the public, prevent you from re-offending and help you to resettle into the community', because upon proper analysis those words applied, and applied only, to the phrase 'and not to do anything which could undermine the purpose of your supervision'. Thus in my judgment the condition imposes three distinct requirements of which to be well behaved is one. In my judgment, to be well behaved means at least to conduct oneself not merely lawfully but in a way that does not adversely affect, annoy, hinder, inconvenience or distress another or others in relation to their lawful activities or performance of their lawful duties, whether by action, omission or by a course of conduct."
Although not binding upon me, that is highly persuasive and I respectfully agree with it.
There is no dispute that on 24th January 2014 the Greater Manchester Probation Trust made an emergency request for the recall of the claimant to prison which recommendation was acted upon by the defendant who revoked his licence on the same date. The revocation recalled him to prison, told him that he was liable to arrest without warrant and stated the reason for revocation in the following terms as appears from page 84 of the hearing bundle:
"Reasons for revocation of your licence.
Name Terence Calder. You have been recalled to prison because it had been reported by the Probation Service that you have breached condition 5(1) of your licence 'as you failed to be well behaved, not the 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 resettle successfully into the community. In view of the offences for which you were originally sentenced, the risks suggested by your offending history and your behaviour has described in the breach report completed by the probation service, and which is attached, the Secretary of State is no longer satisfied that it is right for you to remain on licence."
He was served (I know not exactly when) with an undated letter from the National Offender Management Service of the defendants which simply read so as far is material and this appeared from page 535 of the hearing bundle that the licence revocation and recall to custody was because "poor behaviour", that being a box ticked out of a selection of boxes available to the writer. The notice went on to say:
"You will receive more detailed reasons once you have been returned to custody."
Having allegedly spent the near three intervening years living with his partner and their children in Oldham, working in a pointing business and complying with all conditions relating to the involvement of his probation officer he was promptly arrested and returned to prison on 25th January 2014 which is where he remains to this day. He challenges the revocation of his licence and recall to prison and continued detention as unlawful. So he seeks a declaration to that effect and an order requiring his release.
Section 254 of the Criminal Justice Act 2003 as amended by the Criminal Justice and Immigration Act 2008, under the heading "Recall of prisoners while on licence" provides as follows:
"(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."
There is therefore a discretion to recall, a liberty for the person recalled to make representations but then an obligation — the word is "must" — to inform the prisoner of "the reasons for his recall", which he alleges was not done timeously in this case and has never been done adequately. There is also no dispute that if a prisoner makes such representations in time and is not eligible for automatic release under other provisions of the legislation, "the Secretary of State must [again the word is mandatory] refer the case to the Parole Board". That is provided for by section 255C(4). That has been done in this case and the Parole Board have yet to conclude their deliberations which have been adjourned part heard, I was told at the time of the hearing before me, to 30th October 2014, and if necessary, to a third day of on 6th November 2014. The Parole Board then have the power to recommend release on licence or to refuse to do so on the merits and upon the evidence it hears.
In R (on the application) of Jorgenson v Secretary of State for Justice [2011] EWHC 977 (Admin), Silber J, having cited section 254, at paragraph 21 of his judgment said this at paragraph 22:
" The statute does not provide a list of matters which should be considered. It is settled law that in those circumstances:-
'where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review' per Laws LJ in R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [35]."
The decision maker is subject to guidance that includes Prison Service Instruction 17/2013 entitled "Recall, review and re-release of recall offenders" which relevantly includes at paragraph 4.5 the following:
"4.5 Extended sentence, extended sentence for public protection and extended determinate sentence prisoners can only be recalled if their behaviour indicates they present an increased risk of harm. This can either be where the risk has been clearly demonstrated or where the risk cannot be measured e.g. where the licensee fails to report on a regular basis or is out of contact entirely. Recall can be effected where an offender:
i. Exhibits behaviour similar to behaviour surrounding the circumstances of the index offence;
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R (on the Application of Calder) v Secretary of State for Justice
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