R Jason Kessie-Adjei v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 30 March 2022 |
| Neutral Citation | [2022] EWHC 722 (Admin) |
| Docket Number | Case No: CO/544/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 722 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: CO/544/2021
Mr S Grodzinski QC & Mr A Deakin (instructed by Scott Moncrieff & Associates) for the Claimant
Mr T Richards (instructed by Government Legal Department) for the Defendant
Hearing date: 8 March 2022
Approved Judgment
Introduction
The claimant challenges the lawfulness of his detention between 15 January and 4 March 2021 (“the unlawful detention challenge”). He was arrested on 15 January 2021 on the basis that he was unlawfully at large (“UAL”) and returned to prison to serve the remainder of the determinate sentence imposed by Southwark Crown Court on 9 February 2018. He had been released on licence in April 2019, but his licence was revoked after the commission of a further offence. Although the revocation occurred on 10 January 2020, the claimant was not aware of this and his probation officer led him to believe that his licence had expired unrevoked. As his sentence was originally due to expire on 2 July 2020, his arrest some six months later came as a considerable shock to him. The claimant accepts that the revocation of his licence and his recall to prison were lawful as a matter of domestic law pursuant to s.254 of the Criminal Justice Act 2003 (“ CJA 2003”) and s.49 of the Prison Act 1952 (“PA 1952”). However, he contends that his detention was in breach of Article 5(1) of the European Convention on Human Rights (“ECHR”).
The claimant also alleges that PSI 03/2015 fails to conform with the Article 5(1) ECHR requirement for legal certainty in terms of the discretionary power to disapply the effect of s.49(2) PA 1952, which provides that days spent UAL do not count towards the completion of the prisoner's sentence (“the policy challenge”).
The defendant denies the claim and also contends that the proceedings are an abuse of process in light of earlier proceedings that the claimant brought also challenging the lawfulness of his detention, in relation to which permission to proceed was refused and he did not appeal (“the First Claim”). The claimant, disputes that there is an abuse and also submits that the procedural history of the current proceedings precludes the defendant from raising an abuse argument. In short, Lang J refused permission to apply for judicial review on the papers on 29 March 2021 both on the basis that the claim was unarguable and also as it was an abuse of process. Following a contested renewal hearing, Linden J arrived at the same conclusions, as he set out in his reserved judgment handed down on 29 April 2021. However, the claimant appealed and permission to apply for judicial review was subsequently granted by Nicola Davies LJ by an order dated 20 August 2021. In these circumstances, the claimant submits that in granting permission, Nicola Davies LJ must have determined that the claim was not abusive.
The policy challenge is the first ground in the claimant's Replacement Statement of Facts and Grounds (“the Replacement Grounds”). However, it is convenient to consider the unlawful detention challenge first. The claimant does not pursue a further ground included in the original Statement of Facts and Grounds challenging the lawfulness of the defendant's determination that 58 days from the time when he was UAL would be counted towards his sentence. The claimant did not appeal the refusal of permission in relation to this aspect.
Accordingly, the issues for the court to consider are as follows:
i) Was the claimant's detention incompatible with Article 5(1) ECHR in that:
a) It was arbitrary, in particular because it was not reasonably foreseeable and/or because he had been misled into believing that his sentence had already come to an end (“the arbitrariness challenge”);
b) There was no lawful basis for the same, as any causal connection between the determinate sentence imposed by the Crown Court and the period of detention had been broken in the unusual circumstance of this case (“the causation challenge”); and/or
c) No consideration was given to the proportionality of re-detaining him before he was arrested and detained (“the proportionality challenge”);
ii) Is PSI 03/2015 incompatible with Article 5(1) in the respects alleged by the claimant;
iii) Does the grant of permission to apply for judicial review preclude the court from finding that the proceedings are an abuse of process;
iv) If not, are the proceedings an abuse of process in light of the First Claim; and if the court considers that they are abusive, does this preclude the grant of relief in circumstances where, consistent with the grant of permission, full submissions on the merits have been heard; and
v) If the claimant's detention was in breach of Article 5 ECHR what sum of damages should he be awarded by way of just satisfaction?
The statutory provisions
Section 244(1) CJA 2003 requires the Secretary of State to release a fixed-term prisoner on licence as soon as the prisoner has served a prescribed portion of their sentence, for which s.244(3) makes provision. Section 252(1) requires a person released on licence to comply with such conditions as may be specified in the licence.
Section 254 CJA 2003 addresses the recall of prisoners while on licence. It provides (as material):
“(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.”
Section 49 PA 1952 is concerned with persons who are unlawfully at large. As material, it states:
“(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 the 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…then, unless the Secretary of State otherwise directs, no account shall be taken in calculating the period for which he is liable to be detained, of any time during which he is absent from the place in which he is required in accordance with law to be detained.”
Where a prisoner makes representations pursuant to s.254(2)(b) CJA 2003, the question of their further release must be referred to the Parole Board, which may direct their further release on licence: ss.255B(4)-(5) and 255C(4)(a)-(5).
The claimant does not suggest that these provisions are incompatible with Article 5 ECHR. Accordingly, it follows as a matter of domestic law that:
i) If a person is at large when their licence is revoked, they are deemed to be UAL ( s.254(6) CJA 2003);
ii) The revocation of their licence stops the clock running on the completion of their custodial sentence for the period whilst they are UAL, save to the extent that the discretionary power to make a direction to the contrary is exercised (s.49(2) PA 1952);
iii) A person who is UAL is liable to be arrested and detained for the purposes of serving their sentence ( s.254(1) CJA 2003; s.49(1) PA 1952).
In R (S) v Secretary of State for the Home Department [2003] EWCA Civ 426 (“ R (S) v SSHD”) the Court of Appeal held that there was no pre-condition for an individual to know that their licence had been revoked before they are treated as being UAL, with the effect that the clock on their sentence completion will stop (pursuant to s.49(2) PA 1952) even if they are unaware of the revocation. The court was concerned with s.39 of the Criminal Justice Act 1991, rather than the CJA 2003 provisions, but nothing turns on that. Simon Brown LJ (with whom the other members of the court agreed) explained his conclusion as follows:
“24. …Not merely is there nothing in s39 to support the view that a recalled prisoner must know of his licence revocation before becoming unlawfully at large, but reason and policy strongly suggest the contrary. As Mr Kovats points out, the judge's ruling would produce the undesirable result that a prisoner, once he has breached his licence conditions, would have an incentive to disappear instead of contacting his supervisor to explain the position – an incentive, indeed, to ignore his licence conditions altogether and simply disappear anyway. There would ordinarily be no injustice in his being held to be unlawfully at large even if he does not know of his licence revocation. In the first place he knows the conditions of his licence and the consequences of breaching them, in particular the likelihood of his licence being revoked. Secondly, following the revocation of his licence, the prisoner is in fact enjoying a period at liberty when he ought properly to have been returned to custody and so cannot reasonably complain if the additional time is required to be served at the end of his licence period.”
The claimant does not dispute this as a matter of national law. However, Mr Grodzinski QC emphasises that the impact of Article 5 ECHR was not discussed in R (S) v SSHD and he submits that the circumstances there were materially distinct from the present case. I will address that contention when I set out my conclusions.
As the defendant points...
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