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

Conclusions: Ground 4

To summarise: I have concluded that:

There was, in March 2023, sufficient evidence upon which the Defendant could reasonably conclude that there had been a breach of the ‘good behaviour’ limb of condition 5(i);

However, in relation to the second limb of 5(i), the Defendant did not have reasonable grounds for considering that the Claimant had acted so as “undermine the purpose of the supervision order”, given the absence of information about the Claimant’s knowledge of any licence or system of supervision in his particular case;

It is accepted by the Defendant that the view that there had been a breach of condition 5(iii) is no longer defensible;

Whether the issue of the ‘necessity’ of recall, and the Defendant’s underlying view that the Claimant was not manageable on licence (being out of contact) is considered under Limb 2 of Calder, or as a free-standing reason for the recall, it was not an issue considered fairly by the Defendant. In the particular and probably unusual circumstances of this case, fairness required that further investigations were undertaken, to see whether there was any real prospect of securing contact with the Claimant, short of recall.

For these reasons, I have decided that the decision to recall was unlawful.

I record for the sake of completeness that I have reached these conclusions independently of the findings of the Parole Board. That decision records that the Community Offender Manager (“COM”) then responsible told the Parole Board that if he had been in post at the time of recall, he would have made enquiries of the police to find out the facts of the allegation and why it was not being pursued. The Board “agrees that this would have been the only reasonable response of a Probation Officer” in the circumstances. It also accepted that the COM at the time, in March 2023, should have made further enquiries to consider the question of whether the Claimant had any knowledge of the licence – it being an unusual case in which the Claimant was extradited at the end of the custodial period. But despite its very considerable expertise, it seems to me that it would be wrong for me to place too much reliance on its findings when it heard different evidence (including the Claimant’s own account of the drunk and disorderly allegation).

Grounds 1 and 2 – alleged irrationality and error of law in the s.254(2A) cancellation decision - and Ground 3 (reasons).

Given my conclusion on Ground 4, I can take these points more swiftly.

The power to rescind a recall order is set out at s254(2B) of the 2003 Act. It is common ground that the power may be exercised at all times, including after, rather than before, a review by the Parole Board. The Claimant’s case is that, in essence, it was both unlawful and irrational for the Defendant not to rescind the recall in the light of the Parole Board’s conclusions. He further argues that the exercise carried out by the Secretary of State should have been focussed on the issue of breach of conditions. It was mandatory for the Secretary of State to consider whether or not conditions had been breached, since the offender may only be released if the Secretary of State concludes that there has been no breach of conditions. Here, as the Parole Board had said that there had been no breaches and recall had not been appropriate, the recall decision should have been rescinded. Further (Ground 3) he argues that the Secretary of State should have given reasons for his refusal to rescind the decision.

I prefer to take Ground 3 first. It is accepted that there is no statutory duty to give reasons for the decision not to cancel a recall. However, the Claimant relies on R(Doody) v Secretary of State for the Home Department [1994] 1 AC 531 at 564H, where a duty to give reasons for tariff decisions which departed from the judicial view was implied by the Court for reasons of fairness; fairness requires a similar approach in this case, it is said.

In the particular circumstances of this case, I accept that there was a duty on the Defendant to explain why he had not rescinded the recall decision. The Parole Board had made a series of highly material findings after a hearing, including that there had been no breach of licence conditions, and “nor could it be reasonably concluded that there was a breach, or that recall was necessary” (para 4.57). It held also that the Claimant could be managed safely on licence (para 4.62). Although it declined to order release, it did so on the basis of risk after the sentence expiry date. Given the direct conflict between the Board’s findings and the Secretary of State’s approach when he made the decision to recall, I find that there was a duty on the Defendant to show that he had considered this material, and what he made of it. The first limb of s254(2B) (absence of breach of conditions) had – on these findings – been satisfied and the information on risk was materially different from that previously available to the Secretary of State, in March 2023.

The first statement of Ms Shuttlewood on behalf of the Defendant sets out the Defendant's policy on use of the power to rescind:

Rescind of Recall

PPCS [Public Protection Casework Section], on behalf of the Secretary of State, has the power to rescind or cancel a recall decision in certain circumstances where the decision was based on erroneous information or the Secretary of State is satisfied that all conditions have been complied with or have been breached in circumstances beyond the control of the individual.

Rescind applications made after an individual’s return to prison custody will only be considered where information is subsequently provided that was not available to the Secretary of State at the time the recall decision was taken.”

Ms Shuttlewood explains that “My predecessor as Head of PPCS was the decision-maker in this instance. He will have reviewed the file and discussed with the Probation Service and seen that the requirements of para 6.6.1 were not met …. There was no new information relevant to the decision to recall the Claimant which was provided in the request to cancel the recall.” (para 35). She cannot, thus, attest to the reasons directly (this is not a case in which the Court is later given full reasons). But in any event, the explanation given in this statement fails to address the Parole Board’s conclusions when (for example) it reiterates that the Claimant had breached the ‘good behaviour’ condition, or fails to consider whether ‘circumstances beyond the individual's control’ played any part in the sequence of events. Given all the matters explored by the Parole Board and its findings and conclusions, I do not consider that it was open to the Defendant’s decision-maker to conclude (as the statement suggests was concluded), that “the request does not contain any information not already available to the decision-maker at the time of the initial recall”.

In reaching this conclusion about the need for proper reasons (and their absence), it will be apparent that I have based my decision on the facts and circumstances of this case, and in particular the timing and nature of the Parole Board’s decision. It may be unusual for representations to follow a Parole Board decision, rather than to precede it. This case raises questions which may differ materially from those which arise when representations are made shortly after recall (at which point reasons have, of course, been provided).

In the light of this conclusion on Ground 3, I do not need to express a view on the other grounds argued before me (Grounds 1 and 2), challenging the refusal to rescind the recall. Those Grounds raise questions about the Secretary of State’s acceptance – or rejection – of the Parole Board’s findings and, potentially, whether there is any entitlement to maintain the decision on the same basis as the Parole Board, i.e., risk after the sentence expiry date. If any of these points were to need consideration, it should be done after adequate reasons have been provided.