R (Jorgenson) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] EWHC 977 (Admin) |
| Docket Number | Case No: CO/12954/2010,CO/12954/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 April 2011 |
[2011] EWHC 977 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MANCHESTER DISTRICT REGISTRY
The Honourable Mr Justice Silber
Case No: CO/12954/2010
Vijay Jagadesham (instructed by Robert Lizar, Solicitor of Manchester) for the Claimant
Matthew Slater (instructed by Treasury Solicitor) for the Defendant
Hearing date: 25 February 2011
Further post-hearing written submissions served on 25 February 2011 and 7 March 2011
I. Introduction
Adrian Jorgenson ("the claimant") challenges the decision of the Secretary of State for Justice ("the defendant") made pursuant to section 254 of the Criminal Justice Act 2003 (" CJA 2003") to recall him to custody on 12 July 2010 for using cannabis in breach of the licence conditions on which he was released from prison.
The background to this case is that on 22 December 2005, the claimant was sentenced to eight years imprisonment for three counts of possession of an imitation firearm with intent, three counts of false imprisonment as well as counts of blackmail and kidnapping. Those offences were closely related and they were connected to the claimant's association with drugs, drug debts and drug dealing.
The claimant had a long history of frequent offending between 1980 and 2005 as he had been convicted on 29 occasions for 84 offences including 23 for theft and similar offences, 9 fraud offences, 9 drug related offences, 2 offences against the person, and 3 public order offences. He had also served previous custodial sentences.
The Parole Board directed the early release of the claimant on parole licence on 7 April 2010. It directed that the claimant's parole licence would include among other conditions a provision that:-
"[The claimant's] alcohol and drug use to be closely monitored and should there be a problem he will be referred to a specialist agency immediately".
On 2 June 2010, the claimant was released on parole and he was required to reside at specified approved premises and to comply with licence conditions, which included a requirement for him to sign on at the hostel four times a day. The conditions imposed on him in paragraph 5 of his Licence included requirements that:-
"vi. [the claimant will] be well behaved, not commit any offence and no[t] do anything which could undermine the purposes of [his] supervision, which are to protect the public, prevent [him] from reoffending" and that
"x. [The claimant's] alcohol and drug use to be closely monitored and should there be a problem he will be referred to a specialist agency immediately".
In a witness statement made in these proceedings, Mr James Hough a Senior Case Manager within the Post-Release Casework Team of the Public Protection Casework Section in the National Offenders Management Service ("NOMS"), an Executive Agency of the Ministry of Justice, has explained that in the light of the serious nature of the claimant's offending, he was managed within the Multi Agency Public Protection Arrangements ("MAPPA") at level 3, which is a category reserved for those prisoners "assessed as posing a risk of serious harm to the public which requires active inter-agency management". The purpose of MAPPA, according to Mr. Hough, is to manage the risks posed by sexual and violent offenders who " present a high risk of harm, in order to protect the public".
The claimant was also registered at MAPPA's request as a Critical Public Protection Case ("CPPC") with NOMS. The criterion for this registration was that the offender presented an immediate risk of serious harm (as was the case with the claimant) and that there was a need to ensure that public confidence in the criminal justice system was maintained.
On 12 July 2010, Ms Emma Turner an Offender Manager at Greater Manchester Probation forwarded her Request for Recall report relating to the claimant in which she requested his emergency recall on the grounds first that he had tested positive for cannabis in breach of his licence conditions; second that he was assessed as a very high risk of serious harm to the public; third that he was a registered level 3 MAPPA offender and additionally a registered CPPC; and fourth that the claimant can be volatile whilst under the influence of drugs.
Ms Turner considered that any return to substance misuse by the claimant would indicate that he might be re-engaging in associated criminal activities and therefore that he met the criteria justifying his emergency recall. It was pointed out by Ms Turner that the offences for which the claimant was sent to prison were " linked to the misuse of illegal substances and that any use of substances indicates an increase in risk" with the result that he would pose a very high risk of harm to the public. It was pointed out in the "Request for Recall" form that:-
"Any return to drug misuse [by the claimant] has been identified in the OASys to be an indication that [the claimant] may be engaging in criminal activity".
The application for emergency revocation of the claimant's licence was considered by a Senior Caseworker within the Croydon Recall team and after consideration, recall was then authorised with the claimant's licence being revoked on that day at 12.35pm. The claimant was recalled and after the completion of the oral hearing in this case, the claimant has been released again on licence.
It is not disputed first that the claimant provided a positive drug test for cannabis on 10 July 2010 and second that the claimant had complied with the other licence conditions, which included residence at approved premises and signing in at the premises four times a day.
There is clear authority that if it is unlawful, a decision to recall a prisoner can be quashed ( Rodgers v Governors of HMP Brixton and Another [2003] EWHC 1923 (Admin)). Indeed the Court of Appeal has recognised that in appropriate circumstances, the Administrative Court can quash a decision by the Parole Board to recall a prisoner to custody. Sir Igor Judge P (as he then was) explained in Gulliver v Parole Board [2007] EWCA Civ 1586 that:-
"There may, of course, be exceptional cases where the revocation of the decision process is so subverted that the prisoner may seek a different or separate remedy, by way of judicial review or, indeed, habeas corpus." [45]
II. The Issues and the Court's Approach to a Challenge to a Decision to Recall an Offender
The grounds of challenge are that:-
i) The decision to recall was based on false or flawed premises and/or was made in bad faith ("The Flawed Premises Issue");
ii) The decision to recall was disproportionate in so far as it failed to consider relevant and material factors, namely the possible alternatives to recall and the claimant's explanation for his breach ("The Failure to Consider Relevant Factors Issue");
iii) In making the decision to recall the defendant fettered his discretion and/or failed to provide reasons for the claimant's recall ("The Fettering Discretion Issue"); and
iv) The decision to recall the claimant was in breach of a legitimate expectation consequent upon the licence condition which stipulated that drugs or alcohol misuse would be met with a referral to a specialist agency ("The Legitimate Expectation Issue").
There has been much discussion about how the court should approach an application to challenge a decision by the defendant to recall a prisoner. The case for the defendant is that in cases such as present one, the crucial (and perhaps the only) question for a court in that situation was explained by Judge Langan QC in R (Howden) v Secretary of State for Justice [2010] EWHC 2521 Admin [14], which was a case involving a breach of a licence condition. In that case, it was stated that:-
"What is required of the defendant before he orders a recall is that there is "evidence upon which he could reasonably conclude that there had been a breach": R (Gulliver) v Parole Board [2007] EWCA Civ 1386 , para. 5 (Sir Anthony Clarke MR). Put slightly differently, the question "is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself by reference to the standard of good behaviour:R (McDonagh) v Secretary of State for Justice [2010] EWHC 396 (Admin)para. 28 (Judge Pelling QC). The threshold is plainly a modest one."
The case for the defendant in this case is that the claimant breached his licence condition so that the defendant was entitled in the light of the conclusions in Gulliver, Howden and McDonagh to revoke the licence of the claimant. It is said by Mr Matthew Slater counsel for the defendant that in this case, the modest threshold has been met because there is ample evidence which would have meant that the Secretary of State could reasonably have believed that the claimant has not conducted himself in accordance with the conditions of his licence or the standard of good behaviour by using cannabis.
It is not every breach of his or her licence, which will justify a decision to recall an offender and indeed arriving at a hostel a minute or two after the stipulated time could not justify a recall especially if the prisoner had invariably been punctual on many previous occasions. In my view, in every case where the Secretary of State could reasonably conclude there has been a breach, he or she must then proceed to consider as an important free-standing separate issue, which is what steps should be taken to deal with this breach. In other words, the mere fact that a prisoner released on licence is in breach of his her licence or is reasonably believed to be in breach does not mean that recall must automatically be ordered. Of course, in many cases...
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