Smith (R) v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeMR JUSTICE WYN WILLIAMS
Judgment Date12 January 2011
Neutral Citation[2011] EWHC 81 (Admin)
Date12 January 2011
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/11449/2010

[2011] EWHC 81 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Mr Justice Wyn Williams

CO/11449/2010

Between
The Queen on the Application of Smith
Claimant
and
The Secretary of State for Justice
Defendant

MR S LEVINE (instructed by CRIMINAL DEFENCE SOLICITORS) appeared on behalf of the Claimant

ISS R DAVIDSON (instructed by TREASURY SOLICITORS) appeared on behalf of the Defendant Secretary of State for Justice

MR R FORTT (instructed by TREASURY SOLICITORS) appeared on behalf of the DefendantParole Board

(As approved)

MR JUSTICE WYN WILLIAMS
1

: The claimant is currently a serving prisoner. In these proceedings he raises two issues for the court to consider. Prior to the hearing this morning there were more than two, but Mr Levine on his behalf told me that he wished to pursue two aspects of the case only at this hearing and it is these issues which this judgment focuses upon.

2

The issues can be described in this way: first it is alleged that the first defendant acted unlawfully when on 9 February 2010 he revoked the claimant's licence to be at liberty and ordered a "standard recall" to prison. The claimant does not submit it was unlawful to revoke his licence. He submits, however, that his recall should have been on what is termed by his counsel a "fixed term basis" and not the standard basis. The second issue raised by the claimant is that the defendant acted unlawfully, or has acted unlawfully, by failing to remit from the time to be served in prison following recall the time which it is acknowledged the claimant spent unlawfully at large between 20 April 2010 and 18 July 2010. In due course I will deal with each of these issues in some detail.

3

First, however, I set out such facts as are relevant. The claimant was born on 14 January 1961. Over the years he has committed a number of criminal offences. He was first convicted as a juvenile and during his adulthood he has appeared from time to time in Magistrates' Courts local to the place where he lived. On 7 October 2007 the claimant was convicted of offences which were more serious in kind than those that had been committed by him hitherto. He was convicted of a number of drug offences. For reasons which are obscure, at least to me, the claimant was not sentenced on the date on which he was convicted, nor at any time near to that date. His sentencing in fact took place on 11 May 2009. By that time the claimant had spent the greater part of a year in prison awaiting sentence. In any event, on 11 May 2009, as I have said, he was sentenced for the offences which he had committed. The total sentence imposed was one of 30 months imprisonment. The judge imposing sentence ordered that the time spent in custody awaiting sentence should count towards that sentence.

4

On 21 August 2009 the claimant was released on licence. By then he had served one half of the sentence which had been imposed upon him when one takes into account the time spent in custody awaiting sentence. The document which authorised the claimant's release from custody on licence contained a mistake. It specified that the claimant was being released under the terms of the Criminal Justice Act 1991. That was an error; his release was authorised under the Criminal Justice Act 2003. The result of the mistake was that the expiry of the claimant's licence period was stated to be 8 April 2010 when in fact it should have been 22 November 2010.

5

On 19 December 2009 the claimant was arrested. Shortly thereafter, he was charged with two offences of common assault and one offence of criminal damage. He was taken before the Leeds Magistrates' Court and released on unconditional bail.

6

On 8 February 2010 the probation officer responsible for managing the claimant during the period of his release on licence made a request to the Public Protection Case Work section of the National Offender Management Service which is known by the acronym NOMS that the claimant should be recalled to prison. In his request to the section the probation officer recommended that the claimant be recalled on a fixed term basis, to use counsel's phrase. On 9 February an employee of the case work section acting on behalf of the defendant revoked the claimant's licence and recalled him to prison. As I have said, he did so on the standard basis.

7

The person who made that decision had a number of documents before him or her, as the case may be. First, the decision maker had the document which appears at page 127 of the trial bundle, which is entitled "request for recall report." I will return to that document in more detail later in this judgment. It is also clear from that document itself, however, that the decision maker had a number of further documents. They are listed on the last page of the request for recall report as being OASysR61, OASysR62, OASysR106, a list of the claimant's previous convictions, a copy of the licence, and the charge sheet which related to the allegation which had been made against him at the Leeds Magistrates' Court on or shortly after 19 December 2009. As I understand it, it was on the basis of that documentation that the decision of 9 February 2010 was made and in consequence it must be upon the basis of those documents that the decision is now scrutinised by this court. Let me go on with the relevant factual material.

8

The claimant was not arrested shortly after the decision to revoke his licence had been made; rather he was arrested on 16 February. The circumstances are that he arrived at Heathrow Airport on a flight from Colombia. He was arrested on suspicion of drug smuggling and, so it is said in the skeleton argument presented on behalf of the first defendant, on account of the order for his recall. In any event, immediately following his arrest he was detained not in a prison but at Colnbrook Immigration Detention Centre.

9

That same day, the police informed the Probation Service of the claimant's arrest. However, because the claimant was detained at an Immigration Detention Centre and not at a prison, details of his detention were not entered on to the relevant computer system. The consequence of that was that the first defendant was unaware at that stage that the claimant had been arrested and taken into custody. On 25 February 2010 the claimant was charged with importing drugs and remanded into custody. However, he did not immediately move from the Colnbrook Immigration Centre. The information before me is that he was transferred from Colnbrook to a prison on 9 April 2010 and the details of his detention at the prison were not entered on to the computer system to which I have referred until some time between the 15 and 19 April 2010.

10

On 19 April 2010 the first defendant's officers or employees checked the computer system and learned of the claimant's arrest and detention. The first defendant immediately notified the police that recall proceedings had been instituted and on 20 April 2010 the claimant's recall dossier was sent to Wormwood Scrubs prison, which was the prison at which the claimant was being held. By an odd quirk of fate, on the same day, that is 20 April 2010, the claimant was produced at the Uxbridge Magistrates' Court in relation to the charges which had been brought against him following his arrest on 16 February. At the hearing before the magistrates, the charges were withdrawn. Because it had been mistakenly believed that the claimant's licence expiry date was 8 April 2010 he was released from custody. That came about because although he was still the subject of proceedings in the Leeds Magistrates' Court, as I have said, he had been remanded by the magistrates in Leeds on unconditional bail.

11

Almost immediately the first defendant realised that there was a problem. On 21 April a further warrant for the claimant's arrest was issued and for his recall to prison. That, however, was not executed until 18 July, when the claimant was again arrested returning to the United Kingdom from abroad.

12

It is now common ground that the period between 20 April 2010 and 18 July 2010 was a period when the claimant was unlawfully at large. As I have said, however, the claimant submits and asserts that this period should be remitted from the period which he is bound to serve by reason of his recall to prison.

13

So far in this judgment I have used the phrases recall for a fixed period or recall on a standard basis. If a person is recalled for a fixed period then in the absence of any direction by the Parole Board he is released again after the expiry of 28 days from the date of his recall. If, however, a person is recalled on a standard basis he is liable to serve the whole of the remaining part of his sentence unless the Parole Board intervenes. Having set out the relevant facts, and with those introductory remarks about some relevant aspects of the statutory regime, I turn to the grounds advanced in this case.

14

Ground one has to be viewed against the relevant statutory provisions. Those provisions are to be found within section 255A of the Criminal Justice Act 2003. The relevant part of section 255A is in the following terms:

"(1) This section applies for the purpose of identifying which of sections 255B to 255D governs the further release of a person who has been recalled under section 254 (the prisoner).

(2) The prisoner is eligible to be considered for automatic release unless —

(a) he is an extended sentence prisoner or a specified offence prisoner.

(b) in a case where paragraph (a) does not apply, he was recalled under section 254 before the normal entitlement...

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