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

Conclusions – Issue 2

I accept the Defendant’s submission that as a matter of law, there is a power to recall for broader reasons than breach of conditions, in which case the first limb of the Calder test is not applicable (although the second must remain).

The starting point must be the statutory language of s254, set out at para 34 above. It is a broad and unqualified power, not linked or limited to a breach of conditions. “Where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review”: R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55 [2005] QB 37 at [35].

The Court of Appeal in R (Gulliver) v Parole Board [2007] EWCA Civ 1386; [2008] 1 WLR 1116 addressed the issue of whether the Secretary of State could revoke a licence and recall only if there was a breach of licence conditions, or whether he could act for broader policy reasons. Sir Anthony Clarke MR, with whom the other members of the Court agreed, stated that the purpose of recall “is to protect the public against risk” (para 19) and further observed that:

“Section 254(1) does not say that the prisoner must be in breach of his licence conditions before he can be recalled. It could easily have done so if that had been intended. There is, I think, much to be said for the view that the power to recall is not so limited, although it is not necessary to reach a concluded view on that question in order to decide this appeal because, as I said earlier, it is accepted that the Secretary of State reasonably thought that the claimant was in breach of his licence conditions, and it cannot be said that the recall is unlawful.”

That was not a “concluded view”; but it is powerful authority, accepted also in R(Keiserie) at paragraph 30: “the basic position is that the prisoner has been sentenced to a term of imprisonment, from which he is given an early release on licence subject to the Secretary of State's discretion to revoke the licence and recall to prison under section 254(1). In my judgment, in respectful agreement with the obiter dicta at paragraph 21 of R (on the application of Gulliver) v Parole Board [2007] EWCA Civ 1386, [2008] 1 WLR 1116, that provision does not require the existence of a breach and cannot in itself be regarded as penal.”

I also respectfully agree, and would adopt the same approach. I note that it is also consistent with the Defendant’s Policy Framework (see paragraphs 4.3.1 and 4.3.3), although of course that policy could not be relied upon if contrary to the statutory framework and purpose. Para 4.3.1 of the Policy Framework provides:

COMS/Probation Practitioners must consider recalling an individual where one or more of the following occurs:

they have breached a specific condition of their licence, or

either the behaviour being exhibited, or their change in circumstances, means that the risk posed is assessed as no longer safely manageable in the community, or

[sic] where contact between the COM/Probation Practitioner and the individual has broken down.”

Paragraph 4.3.3 continues: “The decision to recall must be based on an individual's behaviour or circumstances presented whilst on licence. This will not necessarily be directly linked to a breach of a specific licence condition.”

In reaching this conclusion on the breadth of the discretion, I acknowledge Mr Rule’s submission that it may be hard to envisage a situation in which the circumstances justify recall but there have been no breaches, given the breadth of the conditions which are included in a licence, including the “good behaviour” condition. Perhaps a ‘change in circumstances’ might qualify. However, that proposition is relevant to the facts in any case, and does not seem to me to justify narrowing the breadth of the statutory language in s254, as a matter of principle.