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

Legal Background – Caselaw

The purpose of recall is to protect the public against risk. It is not a punishment: R(Gulliver) v Parole Board [2007] EWCA Civ 1386 [2008] 1 WLR 1116 at [19].

Prisoners on licence can lawfully be recalled for breach of a licence condition only if two criteria are met: see R(Calder) v SSJ [2015] EWCA Civ 1050 at [23],approving R (Jorgensen) v Secretary of State for Justice [2011] EWHC 977 at [14]). The two-stage test was summarised by Dinah Rose QC, sitting as a Deputy Judge of the High Court, at [30] of R (Goldsworthy) v SSJ [2017] EWHC 2822 (Admin):

“The Claimant could lawfully be recalled only if (1) there were reasonable grounds for concluding that there was a breach of his licence conditions, and, (2) in all the circumstances, his recall was necessary for the protection of the public, because of the dangers posed by the prisoner when out on licence.”

In R (Jorgensen) v Secretary of State for Justice [2011] EWHC 977, Mr Justice Silber summarised the position thus:

“[25] So I consider that the legal position is that when faced with a challenge to a decision to recall a prisoner because of the risk to the public for breach of a condition of his or her licence, the court should consider:-

Whether there is "evidence upon which he could reasonably conclude that there had been a breach”: R (Gulliver) v Parole Board [2007] EWCA 431 Civ 1386, [5] (Sir Anthony Clarke MR). Put slightly differently, the question "is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself by reference to "the standard of good behaviour”: R (McDonagh) v Secretary of State for Justice [2010] EWHC 369 (Admin), [28] (Judge Pelling QC). If the Secretary of State cannot satisfy that test, the recall is unlawful but if he or she can, it is necessary to progress to the next questions;

Whether there is the absence of any fault on the part of the prisoner so as not to justify recall (R (Benson) v Secretary of State for Justice (supra)) because if there is not any fault, this will probably be a crucial or at least a very material consideration militating against justifying recall;

Whether the decision to recall the prisoner can be justified on the basis that it is necessary in order to protect the public because of the dangers posed by the prisoner while out on licence (R (West) v Parole Board (supra) and de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (supra));

Whether adequate reasons have been set out to justify that decision so that the prisoner is, in Lord Brown’s words in the South Bucks case (supra), able “to understand why the matter was decided as it was and what conclusions were reached on the principal important and controversial issues”, which in this case means able to understand why his recall is justified …”

Mr Rule submits that the first-stage question whether “the Secretary of State could reasonably have believed on the material available to him that the claimant had [breached a licence condition]” is not determined merely by a Wednesbury test but requires an underlying objective basis in fact. He draws attention to R(Simpson) v Justice Secretary [2023] 1 WLR 1505 at [71] where Mrs Justice Heather Williams considered the test under s244ZB(2) of the Criminal Justice Act 2003, which requires that “the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public [of specified offences]…” This is a provision enabling the Secretary of State to refer high-risk offenders to the Parole Board in place of automatic release, so not directly applicable to this case. But the judge considered a submission concerning the language of ‘belief on reasonable grounds’:

“Counsel did not agree about what this requires. Ms Ailes submits that these words underscore the degree of deference to be accorded to the decision-maker; the Secretary of State does not have to be satisfied of the criteria on a balance of probabilities and in some situations more than one reasonably held view would be possible. Whilst she is correct that the Secretary of State does not have to be satisfied to a civil standard of proof, I do not accept that the “on reasonable grounds” wording does no more than Ms Ailes suggests. The wording is clearly there to add something to the rationality limitation that would apply in any event. This is not surprising given the context; whereby the Secretary of State is making a decision that will alter the basis upon which the prisoner in question is serving their sentence of imprisonment. In my judgment this phrase introduces an objective requirement for there to be an identifiable supporting basis for each of the requisite elements of the Secretary of State’s belief.” (bold added).

I decline the invitation to add any further gloss to the language used by Sir Anthony Clarke MR inR (Gulliver) v Parole Board (see above: “evidence upon which he could reasonably conclude that there had been a breach”). This is partly due to the authority of the above statement. Furthermore, it seems to me that some care needs to be taken in applying the need for an “identifiable supporting basis” in the context of a decision to recall, where decisions – in contrast to those made under s244ZB(2) – may need to be made at speed. All that said, a duty to establish facts “with reasonable accuracy” has been accepted. See the observations on the extent of the investigatory duties of the Secretary of State in this context, as summarised in the recent decision of R(Nguyen) v Secretary of State for Justice [2025] EWHC 2024 (Admin) by Deputy High Court Judge Vikram Sachdeva KC (judge’s underlining retained):

“[75]. The Secretary of State is not required, prior to the exercise of the power to recall a prisoner, to satisfy himself that the information that he has been provided with by the Probation Service is correct: R (Bildave Hare) v Secretary of State for the Home Department [2003] EWHC 3336 (Admin) at [7].

[76]. In R (Wilson) v Secretary of State for Justice [2022] EWHC 1789 (Admin) [2022] ACD 100 one of the licence conditions was to notify the supervising officer of any developing intimate relationship with women, due to previous allegations (rather than convictions) for domestic violence. The Claimant’s former partner informed the Claimant’s probation officer and alleged that the Claimant had been seeing a woman. When confronted with this allegation, the Claimant denied that he had entered into a new relationship, but the probation officer completed a Part A recall report which recorded the allegation of the new relationship but failed to state that the Claimant denied it. The Claimant was recalled, and the decision to recall was successfully challenged.

[77]. The court said this:

The authorities cited by both parties support the proposition that the courtshould be cautious as to interfering in decision-making in this sphere. This is understandable. Both the Probation Service and the Secretary of State are concerned in the recall process within which the issue of risk to the public is a central consideration. They are far better placed than the court is to assess suchrisk and correspondingly the court must exercise restraint in interfering withthe decision-making process. Moreover, it would be undesirable and contraryto the principles set out in the authorities to impose a heavy duty ofinvestigation and/or consultation before the power of recall is exercised. A Probation Officer preparing a report in this context is required to have regard to a range of material but to reach a decision that may have important implications for public safety.

That said, the undoubted requirement for there to be reasonable groundsto justify the decision to recall, coupled with the importance of operating aprocedurally fair process of decision-making, means that the decision-makerand those providing information to the decision-maker must at the very leastensure that the material that is provided for the decision is reasonablyaccurate. In this case, that was not so. The Secretary of State was not told that the Claimant denied that he was in a developing relationship of a kind that might put him in breach of his licence condition. This rendered the Recall Report misleading.” (emphasis added)

[78] In R (Nodwell) v Parole Board [2022] EWHC 3173 (Admin), a challenge to the Secretary of State’s decision to recall the prisoner, the Claimant argued that there was a duty on the Secretary of State to investigate the date of certain text messages which appeared to threaten the victim of the index offence before making a decision to recall him. The messages had in fact been sent prior to his imprisonment. The court held:

When the assessment of what procedural fairness required in the instant case is set in its proper context, and even absent the additional reasons provided for recalling the Claimant i.e. the fact that steroids were found in the Claimant's room and that his AP bedspace had been withdrawn, in my conclusion there was no requirement or duty on the AP staff, the COM or the PPCS to undertake any further enquiry as to the date of the text messages prior to the recall decision being made, however necessarily brief that enquiry might have been. This is not a decision born out of a principle that there is never an obligation to undertake investigations or seek an explanation from an offender before recall, but it is a conclusion drawn from the context and specific facts of this case.” (emphasis added)

[79]. Whether a fair procedure has been followed by a decision maker is a question for the court; it is not a matter of judgment for the decision maker reviewable by the court only on Wednesbury grounds: R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at [65].”

The Grounds of Challenge

The parties have addressed these in chronological order and I do the same.