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

Relief

The proper order in respect of the failings in relation to the decision not to revoke the recall decision (Ground 3) would be a quashing order, requiring the Secretary of State to retake the decision, giving adequate and proper reasons.

The parties are at odds on the potential consequences of any finding (and/or declaration) that the initial decision to recall, in March 2023, was unlawful.

For the Claimant it is submitted that the consequence should be a quashing order, with the result that the Claimant should – at least absent any further decision-making by the Defendant - be released on licence. He relies on the Divisional Court decision of Rodgers v (1) the Governors of Brixton Prison (2) the Secretary of State for the Home Department [2003] EWHC 1923 Admin, where faced with an argument that the unlawfulness of a recall decision should not lead to a quashing order, Lady Justice Hale stated that: “Although discretionary review is a discretionary remedy, if the Court concludes that the Secretary of State did act outside his powers when recalling the claimant in the way that he did, the court is bound to quash his decision to recall the claimant, with the inevitable effect that the claimant is entitled to be released.” [18] (Moses J agreeing).

The Defendant, noting that the grant of remedies is always discretionary, submits:

First, it would be an abuse of the process of the Court, or of the principle that judicial review is a ‘last resort’, for the Claimant to be granted a quashing order when he failed to take advantage of his right to make representations to the Defendant within 28 days of recall; or to bring judicial review proceedings promptly following recall but before the Parole Board’s hearing; and/or judicial review of the Parole Board’s decision. He should not now be allowed to ‘knock out the bottom brick’ by challenging the earliest decision;

Second, it would be wrong to order release when the Parole Board has confirmed risk to the public – it is the Parole Board and not the Court which is the expert on risk. Mr Laverack points to the decision of HHJ Gore in Calder (where, obiter at [30] and [33], the Court decided that it would have limited any relief to a declaration of unlawfulness, leaving open any further action in the event that the Secretary of State “decided to flout a declaration by simply keeping the claimant in prison” or issued a fresh decision for revocation, with further reasons). Rather, Gulliver demonstrates that it is for the Parole Board to decide whether detention should be maintained;

Third, s31(2A) of the Senior Courts Act 1981 is relied on, with an invitation to find that it is “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” At the hearing, it was explained that this submission only related to potential findings on the inadequacy of the Defendant’s reasons – e.g. if the reliance on public protection factors had not been properly explained.

I have decided that the proper relief is, however, a quashing order. As to the factors relied on by the Defendant:

The delay from 7 March 2024 was indeed a real one and risked refusal of a grant of permission. However, an extension of time was granted. At the substantive hearing, the issue is whether granting the remedy would be likely to cause substantial hardship to, or would substantially prejudice the rights of any person, or would be detrimental to good administration (Judicial Review Handbook, para 12.9.2.1). None of these factors apply. As might be expected, this approach is consistent with that of the Court of Appeal in Calder, which considered the relevance of the Parole Board’s duty to consider the decision on recall as an alternative remedy and concluded: “In my view the question of the alternative remedy is therefore a question generally for consideration at the permission stage. Once permission is granted, bearing in mind the duty of the court to protect the liberty of the subject and determine for itself issues of liberty, it is unlikely generally to be a factor of material weight at the hearing of the judicial review.” [50]. That being so, I do not think that it could be said that the application is abusive.

I fully accept that this Court is not the expert on risk, which has been assessed by the Parole Board in declining release. But in my view, the case of Rodgers v (1) the Governors of Brixton Prison (2) the Secretary of State for the Home Department nevertheless provides a clear steer towards the making of a quashing order. On risk and protection, I note that Lady Justice Hale continued: “I would add this. The public is not deprived of protection if the claimant is released now. Firstly, it would be open to the Secretary of State to reconsider his decision to recall. If he did so, he would have to address the right question and he would have to explain himself properly, and the matter would then be subject to challenge before the Parole Board. Secondly, if, on reflection, the Secretary of State does not consider recall a necessary response to the further offending in the light of all the circumstances, the public will still be protected. The claimant will still be on licence. The supervision condition can be re−imposed.” [32]. It is not for me to express a view on whether reconsideration remains an option, but Mr Rule KC submitted that any release of the Claimant would be on licence. The Parole Board’s view was that the licence system would manage risk to the public until the sentence expiry date, at least.

Finally, there are no grounds on which to hold that it is “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred,” not least in the light of my observations at paragraph 91 above.