R (McDonagh) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | HHJ Pelling |
| Judgment Date | 20 January 2010 |
| Neutral Citation | [2010] EWHC 369 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13591/2009,CO/13591/2009 |
| Date | 20 January 2010 |
[2010] EWHC 369 (Admin)
IN THE HIGH COURT OF JUSTICE
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
Before: His Honour Judge Pelling Qc
Sitting as a Judge of the High Court
Case No: CO/13591/2009
Mr Knight appeared on behalf of the Claimant.
Mr Karim appeared on behalf of the Defendant.
HIS HONOUR JUDGE Pelling QC:
1. This is the hearing of an application for judicial review of a decision of the defendant to revoke the licence by which the claimant had been released from prison and to recall the claimant to prison.
The Background Facts
2. On 5 September 2003 the claimant was convicted of four counts of aggravated burglary and one of battery and was sentenced to eight years inprisonment. The claimant was released on licence first on 29 September 2008, but was recalled on 9 March 2009 following the breach of his licence conditions. He was rereleased on licence on 6 April 2009, but was again recalled on 9 May. He was rereleased on licence again on 26 June 2009.
3. On 13 August 2009 at about 9pm the claimant was a passenger in a motor vehicle which it is common ground was being driven by someone other than the claimant at the time. The material suggests that the vehicle was being driven at a speed, 100 miles an hour, that was greatly in excess of the permitted speed limit when it collided with another vehicle.
4. It is the defendant's case that the claimant ran from the scene some 500 metres into a field that bordered the road. The collision occurred after sunset and the defendant's case is that the claimant was hiding from the police. It is common ground that the claimant was injured in the collision, though how seriously is not clear. The defendant's case is that the claimant was located by infrared camera on a police helicopter and was arrested by police officers who were directed to his location by the helicopter crew. The claimant's case is that he wished to get away from the vehicles because he perceived one of them to be, as it was put, “ smoking”; that is, that there was a risk of it catching fire or that perhaps it was on fire. In correspondence at any rate the claimant's case has consistently been that he sat by the side of the road in proximity to the collision waiting for the police to arrive.
5. By clause 5(i) of the claimant's licence it was a condition that while he was under supervision he would:
“i. be well behaved, not commit any offence and not do anything which would undermine the purposes of your supervision, which is to protect the public, prevent you from re-offending and help you to resettle successfully into the community.”
6. On 14 August 2009 the National Probation Service (“NPS”) issued a request to the defendant that the claimant be recalled to prison for supposed breach of his condition. In the request for recall, the type of recall requested was described as being “ Emergency”. The breach of condition relied on was breach of clause 5(i) by reference to the requirement to be of good behaviour. The reasons for requesting the recall were stated to be:
“ What are your reasons for requesting recall at this time?
On 13/08/09 at approximately 18:40 hours Mr McDonagh was involved in a road traffic in South Yorkshire. He was in a car which a witness described as travelling at approximately 100 mph with three males inside. The car overtook another car after travelling on the wrong side of the road and crashed into a Clio. One male, of the three, was injured and left in the car. The two other males, one being Mr McDonagh, ran off from the scene and were arrested nearby after being tracked by police helicopter.
What is the pattern of behaviour causing concern at this time?
Of concern is that Mr McDonagh is arrested attempting to flee the scene of what was potentially a very serious road traffic accident.”
A little later in the same document, it was said that:
“Mr McDonagh has complied well with the drug treatment condition of his licence, having consistently provided tests negative to Class A drugs. He continues to engage with the drug worker in the team in order to maintain his motivation to remain abstinent. His general level of compliance has been excellent.”
The request asserted that this alleged breach was the third breach of the licence.
The request was authorized by Mr Goode, a senior manager of the NPS in these terms:
“ Authorization and comments by senior manager (ACO or equivalent)
“In light of the fact of Mr McDonagh's whereabouts and the failure to comply with requirements, recall is agreed. There is a high risk of absconsion [sic] and emergency recall is therefore sought.”
7. The application was considered by the Public Protection Casework Section of the Ministry of Justice on 14 August 2009, and the claimant's licence was revoked that day pursuant to section 254 of the Criminal Justice Act 2003 as amended. The reasons given were:
“You have been recalled to prison because it has been reported by the Probation Service that you have breached the conditions 5(i) and 5(iv) of your licence as:
5(i) You failed to be well behaved, not commit any offence and not 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.
5(iv) You failed to live permanently at the address approved by your supervising officer and failed to notify him or her in advance of your change of address or proposed stay (even for one night) away from that approved address.”
Although that statement constituted the reasons set out in the formal document revoking the licence, it is to be read with the request for recall report (the material parts of which are set out above) because that was what was available to the author of this document and after recall had occurred a direction was given requiring the claimant to be served with the recall dossier which included both the recall document I referred to and the NPS's document as well.
8. It is accepted that the reference to clause 5(iv) of the licence is erroneous and cannot be supported. However, the defendant maintains that he was entitled to revoke for a breach of clause 5(i).
The Parties’ Contentions
9. The claimant attacks the decision by the defendant as entirely unreasoned, as one that should not have been made by the defendant on the information supplied to him by the NPS, and it is also contended that the decision to recall him was irrational in the public law sense having regard to the material that was available. The claimant seeks an order quashing the decision to recall and an order requiring the claimant to be released, presumably on licence terms no more onerous than those that applied prior to the revocation.
10. The defendant contends that the application should be dismissed because: (a) the claimant's recall has been considered by the Parole Board and upheld and thus it is inappropriate to challenge the decision of the defendant; (b) the defendant has agreed to refer the claimant's case back to the Parole Board on a speedy basis; and (c) in any event, no error of law by the defendant has been identified.
The statutory framework
11. The Criminal Justice Act 2003 (“the 2003 Act”) provides insofar as is material as follows:
“(1) The Parole Board is to continue to be, by that name, a body corporate and as such is—
(a) to be constituted in accordance with this Chapter, and
(b) to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) (in this Chapter referred to as “the 1997 Act”) in respect of life prisoners within the meaning of that Chapter.
(2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.
(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—
(a) any documents given to it by the Secretary of State, and
(b) any other oral or written information obtained by it;
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.
(4) The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to subsections (3) and (4), the Secretary of State may make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.
(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to—
(a) the need to protect the public from serious harm from offenders, and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.
(7) Schedule 19 shall have effect with respect to the Board.
By section 244 of the 2003 Act the Secretary of State is under a duty to...
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