AC-2025-LON-001576 - [2025] EWHC 2592 (Admin)

Breach of Conditions and the Calder Test

The second limb of the Claimant’s argument under Ground 4 involves the proposition that the authority of R(Calder) v SSJ [2015] EWCA Civ 1050 at [23] establishes a mandatory two-stage test for a lawful recall to take place, focussing on the need for there to have been a breach of licence conditions. Mr Rule KC argues that the Calder test is decisive; any wider power would be arbitrary and give the executive ‘carte blanche’ to recall, potentially unlinked to the conditions which the ex-prisoner knew that he had to comply with. He draws attention to the focus on breaches of conditions in s254(2B), which he says is consistent with this approach.

The Defendant submits that as a matter of law, the two-stage test in Calder applies only to cases where the reason for recall is a breach of conditions – here, the concerns were wider. The overarching basis for any return is the protection of the public and a failure of the licence to secure this; this can be the basis for a decision. It would be wrong to fetter the statutory discretion by imposing the requirement that there must be a breach of a licence condition.