Roberts (Brett) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | SIR ANTHONY CLARKE,LADY JUSTICE SMITH,LORD JUSTICE MAURICE KAY |
| Judgment Date | 29 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1663 |
| Docket Number | C1/2005/0352 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 November 2005 |
[2005] EWCA Civ 1663
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE KNIGHT QC)
The Master of the Rolls
Sir Anthony Clarke
Lady Justice Smith
Lord Justice Maurice Kay
C1/2005/0352
MR HUGH SOUTHEY (instructed by Messrs Fisher Meredith, London) appeared on behalf of the Appellant
MR JEREMY JOHNSON (instructed by Treasury Solicitor, London) appeared on behalf of the Respondent
( Approved by the Court)
Introduction
This is an appeal against an order made by His Honour Judge Knight QC on 9 August 2004, in which he struck out the appellant's claim against the Secretary of State for the Home Department ("the Secretary of State") for false imprisonment and breach of his rights under Article 5 of the European Convention on Human Rights ("the Convention") and entered summary judgment in favour of the Secretary of State on the entire claim. The appeal is brought pursuant to permission granted by Field J.
The facts
The facts are, at any rate for present purposes, not in dispute. On 30 March 2001 the appellant was sentenced to 18 months' imprisonment. He was released in January 2002. He may have had a right to release under the automatic early release provisions but, whether that is so or not, he was released on licence. He was subsequently recalled to prison when he failed to keep in touch with his probation officer as required by one of the conditions of his licence.
On 3 May 2002 he was again released on licence. The licence included a condition that he must keep in touch with his supervising officer in accordance with any reasonable instructions that he might from time to time be given. The consequences of a breach of the licence conditions were spelled out in the licence.
On 28 May and 25 June 2002 he failed to attend appointments with his probation officer. He says that his failure to do so was due to "employment difficulties". He did not, however, inform his probation officer at the time of the reason he did not attend. Indeed he did not do so, it appears, until about 12 July. On 1 July the Probation Service completed a licence revocation request. The request was based on the appellant's failure to attend the appointments.
On 4 July the Parole Board considered the request and recommended the appellant's recall to prison. On the same date the appellant's licence was revoked by the Secretary of State under section 39 of the Criminal Justice Act 1991 ("the 1991 Act"). The reasons attached to the revocation order were as follows:
"You have been recalled to prison because you breached condition 5(1) of your licence in the following ways:
It has been reported by the London Probation Service that you have failed to keep in touch with your supervising officer in accordance with any reasonable instructions that you may from time to time be given, in that, despite being issued with a warning letter for failing to report to your supervising officer on the day of your release as instructed, you missed two appointments with your supervising officer on 28 May 2002 and 25 June 2002.
In view of the offences for which you were originally sentenced and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
Also on the same date Mr Anthony Sparrow of the Sentence Enforcement Unit in the Prison Service, which was responsible for the appellant, wrote to the Probation Service informing them of the revocation of the licence and adding, among other things that:
"If at any time the Probation Service receives information that may affect the validity of the recall action it is important that the sentence enforcement unit is informed as soon as possible."
Paragraphs 3.7 to 3.10 of the particulars of claim put the appellant's case in this way:
"3.7 On or about 12 July 2002 the Claimant provided his probation officer with documentation that showed that he had a good excuse for failing to attend the two missed appointments.
3.8 On the same date the Claimant's probation officer faxed the Sentence Enforcement Unit to inform them that she wished to have the recall rescinded.
3.9 On 19 July 2002 the Claimant's probation officer telephoned the Sentence Enforcement Unit to repeat the request to have the recall rescinded. She was informed that this was not possible and that the Claimant should be advised to 'hand himself in'.
3.10 The Claimant's probation officer continued to supervise the Claimant. In early September 2002 she completed a final review of the Claimant's supervision plan. This congratulated the Claimant on successfully completing his licence. It also confirmed that the Claimant had produced evidence from his employers explaining his failure to attend appointments."
Those paragraphs were admitted in the defence.
We were shown the fax referred to in paragraph 3.8 of the particulars of claim, which was in these terms:
"I understand that a recall warrant has been issued in respect of the above offender's breach of ACR licence.
I have now received written verification for his absences on 28/5.02 and 25/6/02 via his respective employers. I have also spoken to representatives to confirm this by telephone.
In view of this supporting verification, I would now ask that the recall warrant be revoked, to allow Mr Roberts to continue with his completion of his licence.
Given that a warrant is outstanding in this matter, I would be grateful if you could provide me with a reply to this request as soon as possible."
The appellant's licence would have expired on 9 September 2002 if it had not been revoked.
The appellant was detained on 26 September. He immediately made representations to the Parole Board against his recall. His probation officer wrote a letter submitting that he should not be recalled to prison because he had accounted for his failure to attend the two appointments. On 30 September the Parole Board recommended his release and he was released on 1 October.
The proceedings
The appellant issued proceedings in the Central London County Court claiming damages for false imprisonment both at common law and/or on the ground of an alleged breach of section 6 of the Human Rights Act 1998 by reason of an infringement of his rights under Article 5 of the Convention. The claim relates to the five-day period of detention between 26 September and 1 October 2002.
The Secretary of State applied for an order that the appellant's particulars of claim be struck out or alternatively that summary judgment be entered in the defendant's favour. The judge ordered that the Home Office be substituted as defendant, the appellant's particulars of claim be struck out, summary judgment be entered in the defendant's failure on the entire claim, the action be dismissed and permission to appeal be refused.
McKay J refused permission to appeal on paper. In respect of false imprisonment his reasons were these:
"Once the licence was revoked the statutory scheme contained in section 39 of the 1991 Act gave no discretion to rescind the revocation. The statute had a scheme for representations and possible release. Pending the operation of that scheme the detention was plainly lawful so that the judge was right."
In relation to the alleged infringement of Article 5 he said that the claim should have been made in the Administrative Court, that if the court gave permission a subsequent quashing order would not have rendered the detention unlawful and that in any event the judge was right to reject the claim for the reasons he gave. Subsequently, after an oral hearing Field J granted permission to appeal on the Article 5 point. He also said that, since the appellant raised a question of considerable importance, the appeal should be heard in this court.
Mr Southey made it clear to Field J that he was not seeking permission to appeal against the judge's decision that the appellant's detention was not unlawful under domestic law, but only against his decision that his detention did not infringe the appellant's rights under Article 5 of the Convention.
Mr Southey submitted that the appellant's detention on 26 September 2002 was arbitrary and thus contrary to Article 5. He submitted that there was an insufficient causal connection between the detention and the justification for it. In granting permission to appeal, Field J said that if the Secretary of State was provided with cogent reasons for concluding that a revocation of licence should not stand, it was distinctly arguable that any failure by him to reconsider the revocation with a view to avoiding the detention of the prisoner was a breach of Article 5, notwithstanding the mechanism provided in section 39 of the 1991 Act.
The appeal
The thrust of the appeal as advanced on the appellant's behalf by Mr Southey is essentially as it was put before Field J. It is that the detention of the appellant on 26 September was arbitrary because the Secretary of State should have reconsidered the revocation of the licence when he received the fax from the appellant's probation officer on 12 July (quoted above) and/or when he received the same information by telephone on 19 July. In particular, the probation officer should not have been told that it was not possible to have the recall rescinded and that the appellant should be told to hand himself in.
Mr Southey submits that on 12 or 19 July the Secretary of State was given information which showed that the appellant's licence should not have been revoked or, more...
To continue reading
Request your trial