R Mauricio Antonio Keiserie v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 02 July 2019 |
| Neutral Citation | [2019] EWHC 2252 (Admin) |
| Date | 02 July 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/2334/2019 |
[2019] EWHC 2252 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Keyser QC
(Sitting as a Judge of the High Court)
No. CO/2334/2019
Mr Philip Rule (instructed by BNG Solicitors) for the Claimant
Mr Fraser Campbell (instructed by the Government Legal Department) for the Defendant
JUDGE Keyser Q.C.
Introduction
In these proceedings, which were commenced by issue of a claim form on 17 June 2019, the claimant, a serving prisoner, seeks a declaration that the defendant's decision on 15 February 2019 to recall him to prison was unlawful and that his continuing detention thereafter is unlawful. He claims damages and an order for his immediate release from custody into approved accommodation. A claim for a writ of habeas corpus against the Governor of Her Majesty's Prison Thameside, where he is currently held, has been withdrawn and need not be mentioned further.
On 20 June 2019 Karen Steyn QC, sitting as a Deputy High Court Judge, directed that the application for permission be listed for hearing, with the substantive claim to be heard immediately afterwards if permission were granted. This has been that rolled-up hearing. The defendant, the Secretary of State for Justice, does not in fact contest the grant of permission, and I will grant permission, but the defendant does resist the substantive claim.
The matter was listed urgently because the claimant's release date has been fixed for Monday of next week, 8 July 2019, but he presses for immediate release into accommodation that is said to be suitable. The court was urged to list this matter for hearing yesterday, but, as an order of Mostyn J made clear, that was not possible. I have been invited to give an immediate decision on release and to reserve the statement of reasons and of decision on other points for judgment hereafter. However, I think it preferable to deal with the matter in its entirety now, although that will be at the cost of some brevity and much inelegance, the brevity at least in part because I am starting this judgment at 5.30 p.m.
Facts
In brief, the central facts are these. The claimant is now aged 30 years. On 23 March 2016 he was sentenced to six years' imprisonment for robbery, possession of an offensive weapon in a public place, attempted robbery and breach of a suspended sentence. He has been diagnosed (when is not clear) as suffering from a schizoaffective disorder and, since at least the date of his sentence, has been on medication. After the date of sentence, he spent about 13 months at one hospital and then about 15 months at another hospital, the latter being Hellesdon Hospital in Norfolk, which is the only one we need to concern ourselves with.
On 17 October 2018 the claimant was formally released from custody under the sentence of imprisonment under provisions that I shall refer to presently. At that date, however, he was being held at Hellesdon Hospital, and upon his release from custody he remained in hospital. He had already been informed in August 2018 that upon his release from custody he would continue to be detained in hospital as if he were subject to a hospital order. (This has been referred to as a notional section 57 disposition.) The result was that the claimant would remain in hospital until discharged by the treating clinicians, but that, contrary to the position before his release, his discharge would not require the consent of the defendant.
The claimant's release either was or ought to have been a release on licence. The defendant did not provide the claimant with a formal licence. A written document in the form of a licence was drawn up by HM Prison Bullingdon, where he was notionally detained at the time. The document was sent to the Probation Service, at its request, on 22 October 2018. It was not signed and it was not provided to the claimant and the evidence indicates that its terms were not communicated to him. It appears that it was intended that these steps would be taken at the point of his eventual discharge from hospital. But those good intentions were overtaken by events, because his discharge took place peremptorily by the hospital's decision when he absconded from hospital; I shall come to this later.
At a meeting on 29 January 2019 the claimant was told that he would be subject to licence conditions upon his ultimate discharge from hospital. However, the evidence indicates that he was not told what those conditions would be.
The unsigned licence document is an exhibit to the statement of Nina Shuttlewood, who is employed by the Ministry of Justice as Head of Post-release Casework in the Public Protection Casework Section of HM Prison and Probation Service. Paragraph 2 read:
“Your supervision commences on 17 October 2018 [that is the date of release] and expires on 16 October 2021, unless this licence is previously revoked.”
Paragraph 4 read:
“If on the date of this licence you are released to hospital or other suitable care on compassionate grounds, under section 248 of the Criminal Justice Act 2003 or if you are detained under mental health and/or immigration provisions or are subsequently so detained before your licence expires, your supervising officer will keep in touch with you. Otherwise, you must place yourself under the supervision of whichever officer is nominated for this purpose from time to time.”
Paragraph 5 read in part:
“While under supervision you must:
(1) be of good behaviour and not behave in a way which undermines the purpose of the licence period.
…
(3) Keep in touch with supervising officer in accordance with the instructions given by the supervising officer.”
Paragraph 8 indicated the consequences of a breach of the terms of the licence.
I can pass over the detailed facts until 9 February 2019, when the claimant had a six-hour period of unescorted leave from hospital. At the end of that period of unescorted leave he failed to return. He contacted the hospital and declined to say where he was, though he did say that he was safe. He also said that he had used cannabis and alcohol and that he would contact the hospital again on 11 February.
At a MAPPA meeting on 12 February the claimant's treating consultant informed the National Probation Service that he was being discharged, apparently as he no longer had a medical need to be in the hospital's care. It is unclear to me, on the evidence before me, whether this was actually a genuine case of improvement or whether, rather, the hospital was taking the view that the claimant, by absconding, was failing to co-operate in treatment and indicating a willingness to go his own way, so that the hospital was concluding that, if he was happy to abscond, they were content to accept his own view that he did not require their help. Some support for this latter interpretation might, perhaps, be found in an MOJ document dated 13 February (page D162 of the bundle), which reads:
“Confirmed that last week the recommendation of the consultant which was that Marley should not be discharged due to risks of doing so without his recourse to public funds and lack of accommodation in place and that this assessment changed at the end of last week when Freddy was told to look for emergency placements and was not told until an hour prior to the MAPPA meeting yesterday that Marley was AWOL and that they were going to discharge his Section without any hearing. Assessed that this was a dangerous decision due to the predicament that that it placed Marley in. Has not been able to get hold of Marley. Spoken to discuss recall agreement with him …”
Whether that really does support the latter interpretation I have mentioned is unclear; however, there does seem to be a lack of evidence to indicate that there actually had been a significant improvement in the claimant's health. Whatever the true position, the evidence indicates that the claimant contacted his mother and it was she who told him that he had been discharged from hospital and advised him to contact his Probation Officer.
On the morning of 15 February 2019, the claimant did contact his offender manager (that is a Probation Officer) by telephone and told her that he was in London, although he was unable to explain where in London. After that telephone conversation, the Probation Officer made a recall request to the public protection casework section, and the decision to recall the claimant to custody was made that day. The claimant handed himself in at a police station, as his offender manager had asked him to do.
The reasons for recall are set out in a suite of documents, which includes a document headed “Secretary of State's reasons for licence revocation”. This said that the claimant had been recalled because the Secretary of State was satisfied that he had breached the following...
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