AC-2025-LON-000643 - [2025] EWHC 2024 (Admin)

Fecha: 31-Jul-2025

Defendant’s Stance

97.

The Defendant submits that:

There were reasonable grounds for concluding that there was a breach of licence conditions.

ii)

It was necessary to recall the Claimant.

98.

Whether the test is met is adjudged on Wednesbury grounds: whether no reasonable Secretary of State could have reached the decisions on breach and necessity.

99.

As to the first limb of Calder:

The question is whether, on the evidence available to her, the Defendant was reasonably entitled to conclude that the recalled prisoner was in breach of the condition.

ii)

The threshold is a modest one.

iii)

There is no heavy duty of investigation and/or consultation before the power of recall is exercised.

iv)

The decision-maker and those providing information to the decision-maker must at the very least ensure that the material that is provided for the decision is “reasonably accurate”.

100.

As to the second limb of Calder:

There are two sub-issues: whether the offender had acted intentionally in breach of his licence conditions, and whether the safety of the public would be at risk if the offender remained out on licence.

ii)

There must be a causal link between the behaviour for which the person is recalled and the behaviour that was exhibited at the time of the index offence.

iii)

The courts should be cautious as to interfering in decision-making in this sphere.

iv)

The Secretary of State is not obliged to consider alternatives provided that she focuses on the central issue and concludes that the safety of the public makes it necessary to order the recall of the prisoner who has been released on licence because the risk to the public cannot be contained in any other way which restricts the freedom of the claimant less.

The fact that the word “necessary” is not used in the recall documentation does not matter, bearing in mind that the court should not approach decisions and reasons given by committees of laymen expecting the same accuracy in the use of language which a lawyer might be expected to adopt.

101.

The Parole Board decision of 25 March 2024 was not a mandatory relevant factor.

102.

There is no breach of procedural fairness:

What procedural fairness requires is context-specific.

ii)

When considering procedural fairness in the prison recall sphere, there are existing safeguards in the form of disclosure of the recall dossier and the right to submit written representations.

iii)

Procedural fairness does not require detailed investigations or to test the prisoner’s denial for the decision to be procedurally fair, given the summary nature of the recall process and the existing procedural safeguards after recall, eg Nodwell (no duty to establish date the text messages were sent), cf. Wilson (failure to pass on known information concerning the denial of the developing relationship), Jorgenson (no requirement for a warning before recall).

103.

As to procedural fairness on the facts:

The first recall was for both alcohol consumption and tampering with the AML tag (although the alerts did not indicate any actual consumption of alcohol).

ii)

The first recall was irrelevant to whether the Claimant consumed alcohol on 14/15, 17/18 and/or 23/24 December 2024. The alerts on those days indicated consumption of alcohol, unlike for the first recall.

iii)

Ms. Kintu investigated the three tag alerts before deciding to recommend recall.

104.

Nor was the decision irrational:

There was sufficient evidence to find that the Claimant had consumed alcohol on each of 14/15, 17/18 and 23/23 December 2024.

ii)

The information before the Secretary of State was “reasonably accurate”:

AML tagging was a licence condition to enable monitoring of the consumption alcohol.

Ms. Kintu checked the meaning of each alert with SCRAM Systems and received verbal and written assurance that on each occasion alcohol consumption was confirmed.

AML tagging had been approved by the Ministry of Justice.

The type of AML tag used had a false positive rate of 0.14%.

105.

Although there was an error of fact in portraying the 23/24 December breach as indicating 5 – 7 units, that was immaterial because the decision to recall did not depend on the quantity of alcohol ingested on each occasion.

106.

As to necessity, it was rational to consider that his risk had increased if he had started to drink, such that it was no longer manageable in the community:

The Part A Recall Report recorded the conclusion that the safety of the public would be at risk if the offender remained out on licence, which was endorsed by two senior Probation Officers.

ii)

There is a causal link between the behaviour for which the Claimant was recalled (consuming alcohol) and the behaviour exhibited at the time of the index offence (murdering someone while drunk).

iii)

The risk to the public was only acceptably low if he did not consume alcohol.

iv)

It was wrong to construe the Defendant’s policy so as to require warnings of recall except in narrow defined circumstances. If that was true it would mean that, irrespective of the risk posed to the public by an offender on licence if he has a positive drugs test, he cannot be recalled to prison, which would undermine the entire purpose of the recall procedure.

Increased risk does not require further offending linked to alcohol consumption. It is enough that there is an increased risk of loss of temper, aggression and impulsive behaviour including violence.

107.

There is no evidence that the decision maker was influenced by a perception that the Claimant had in fact committed the breaches at issue in the first recall.