Rodgers v Governor HMP Brixton and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY,LADY JUSTICE HALE,MR JUSTICE MOSES |
| Judgment Date | 22 July 2004 |
| Neutral Citation | [2003] EWHC 348 (Admin),[2003] EWHC 1923 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2004 |
| Docket Number | CO/5953/2002,CO/5953/2002, CO/5908/2002 |
[2003] EWHC 1923 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lady Justice Hale
Mr Justice Moses
In The Matter Of An Application For A Writ Of Habeas Corpus Ad Subjiciendum
And In The Matter Of The Criminal Justice Act 1991
CO/5953/2002, CO/5908/2002
MR A BARRATT (instructed by Sugare & Co Solicitors) appeared on behalf of the _CLAIMANT
MS C IVIMY (instructed by Treasury Solicitor) appeared on behalf of the _DEFENDANT
Wednesday, 12th March 2003
These are linked applications, firstly for habeas corpus on the ground that the claimant's present detention in Brixton Prison is unlawful and, secondly, for judicial review of the decision of the Secretary of State made on 26th September 2002 to revoke the claimant's licence and recall him to prison.
The claimant is now aged 26, nearly 27. In 1995, at the age of 19, already having an extensive criminal record, he faced three charges of armed robbery, three of taking a vehicle without consent and one of attempted taking. He pleaded guilty. It is a mark of the seriousness of those offences that, on 11th July 1996 at the Leeds Crown Court, he was sentenced to 13 years' detention in a young offenders' institution.
On 29th November 2001, having served half of his sentence, he was released on licence under section 35(1) of the Criminal Justice Act 1991. The original licence document was signed by the claimant on 23rd October 2001 and by the Prison Governor on behalf of the Secretary of State on 24th October. It states, among other things, in paragraph 1:
"You will be under the supervision of a probation officer or a social worker of a local authority social services department and must comply with the conditions of this licence".
Paragraph two stated:
"Your supervision commences on 26/11/2001 and expires on 25/02/2002 unless this licence is previously revoked".
The date 2002 was, it subsequently emerged, a mistake. The date intended was 25th February 2005.
Paragraph 5 stated that:
"while under supervision you must …" among other things:
"vi. be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community".
Paragraph 7 dealt with the consequences of non-compliance. It stated:
"If you fail to comply with any requirement of your probation supervision (set out in paragraph 3, 4 and 5 above), or if you otherwise pose a risk to the public, you will be liable to have your licence revoked and be recalled to custody until the date on which your licence would otherwise have expired …"
The claimant complied with the supervision conditions. He continued to report to a probation officer, Rachel Garry, in Leeds until May 2002. She then advised him that his licence had in fact expired and she did not issue any further reporting instructions. His response to the licence up until then had been positive.
On 3rd September 2002, the claimant got into a row with a pub landlord in London and committed two offences of common assault and one of affray. He pleaded guilty at Horseferry Road Magistrates' Court on 5th September 2002. He was sentenced on 26th September to two months' imprisonment. That is some indication of the Magistrates' Court's view of the comparative seriousness of the offences, considered in the light of the claimant's criminal record. The Magistrates' Court did not make any order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. By then, it was known that the Secretary of State was going to recall the claimant and the pre-sentence report, therefore, simply recommended that the present sentence be concurrent to the initial sentence.
The pre-sentence report details the genuine progress made by the claimant since his sentence in 1996. He was making considerable strides to distance himself from his career as a professional criminal. He had spent the last year of his imprisonment in open conditions. He had worked almost continuously for the past two years. He was the main breadwinner in a family, with his partner and her two teenage children. He was working long hours in London, away from home, as a joiner at the time of the incident.
Paragraph 5.1, which is headed "Assessment of the Risk of Harm to the Public and the likelihood of Re-offending", is worth quoting in full:
"There is clear evidence from Mr Rodgers's positive response to his custodial sentence that he has [left] his offending lifestyle behind him. Whilst he still knows many people who are part of the local offending scene, he has disassociated himself from them. I would suggest that although the risk of re-offending remains, the risk is not great and it is likely that there would be warning signs prior to any offending, in particular how he was spending his leisure time and with whom. Risk would also increase if he lost his job or his relationship broke down and should he re-offend, the risk of serious harm would be high. There is no evidence that he poses a risk to probation staff or himself. These new offences were it appears atypical in the sense that Mr Rodgers consumption of alcohol was 'out of character' but nonetheless resulted in the victimisation of both parties and such behaviour clearly highlights a susceptibility to 'losing control' when under the influence of alcohol. But Mr Rodgers has a considerable investment in 'going straight' and this lapse appears just that, but needs to be addressed if the risk of harm is to be reduced".
When responding to a request from London for information for this pre-sentence report, Rachel Garry consulted the prison. It was realised that a mistake had been made in the licence date. The prison, therefore, reissued the front page of the licence. Miss Garry also consulted the Sentence Enforcement Unit and was advised that recall was necessary. The Chief Officer, Rob Voakes, endorsed the form to the effect that "further serious offences" warrant recall, although he pointed out that the claimant might appeal. We do not know just how much information they had about the new offences.
The Sentence Enforcement Unit referred the case to the Parole Board. On 19th September 2002, the Parole Board recommended recall to prison. Hence, on 26th September 2002, the Secretary of State revoked the licence and recalled the claimant to prison under section 39 of the Criminal Justice Act 1991. The grounds given were as follows:
"You have been recalled to prison because you have breached condition 5(vi) of your licence in the following ways:
It has been reported that you have failed to be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent [you] from re-offending and secure your successful re-integration into the community; in that, your behaviour has led to your arrest and charge with two offences of common assault and one offence of affray. You initially appeared at Horseferry Road Magistrates Court on 05 September 2002 and have since been convicted of the above offences and are due to appear at Horseferry Road Magistrates Court for sentencing on 26 September 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".
The claimant is currently detained in Her Majesty's Prison Brixton. Judicial review proceedings were launched on 23rd December 2002. Representations were also made to the Parole Board on his behalf. On 8th January 2003, the Parole Board rejected those representations, stating, among other things, as follows:
"Notwithstanding that regrettable error [the error in the licence] the panel noted that his index offences were for armed robbery and that the convictions in September involved serious offences of violence. In these circumstances, the panel considered that Mr Rodgers' liberty would present an unacceptable risk of a further offence being committed".
The claimant has raised three issues: firstly, did the Secretary of State have power to act under section 39 of the Criminal Justice Act on the basis claimed? (A habeas corpus issue.) Secondly, if he did, did his actions constitute a breach of the legitimate expectation of the claimant, or an abuse of power? (A judicial review question.) Thirdly, were they irrational? (Another judicial review question.) All are fully canvassed in the skeleton arguments, but the argument before us has concentrated on the first point.
The law
The claimant is a long-term prisoner, as defined by section 33(5) of the Criminal Justice Act 1991. Under section 33(2), the Secretary of State has a duty to release him on licence after he has served two thirds of his sentence. Under section 35(1), the Secretary of State has power to do so if recommended by the Parole Board after he has served half. Under section 37(1), where a short-term or long-term prisoner is released on licence, the licence:
"shall … remain in force until the date on which he would (but for his release) have served three-quarters of his sentence".
In this case, that date is 25th February 2005.
The Secretary of State may revoke the licence and recall a person to prison under section 39(1) if recommended to do so by the Parole Board, and under section 39(2) without such a...
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