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

Fecha: 31-Jul-2025

First recall and second Parole Board decision

20.

The Part A Recall Report dated 3 February 2023 by the Probation Service asserted breaches of the licence conditions relating to good behaviour and to be subject to alcohol monitoring and not to consume alcohol unless permitted by the supervising officer. The circumstances and behaviours leading to the recall were as follows:

Two confirmed tamper/obstruction events on 28 January 2023. Two events were recorded as starting and ending at the same time (start time: 13.55 on 28 January 2023; end time 3.30am on 29 January) which appear to constitute one event rather than two. A further tamper alert took place on 30 January 2023. It is also noted under each such event that “Alcohol is present during this time period”, although the basis for this statement is unclear.

ii)

Numerous [this meant 3, according to oral evidence before the Parole Board] alerts received between 28 and 31 January 2023 indicating a direct breach of licence conditions which stipulate that Mr. Nguyen is to practice abstinence and refrain from alcohol consumption.

21.

The Part A Recall Report asserted two bases for finding that the Claimant was no longer manageable in the community:

The index offence was a serious violent offence committed under the influence of alcohol, and the Claimant has a propensity to commit violent offences under the influence of alcohol.

ii)

The alert notifications signal a breach of trust as there were attempt to tamper with the monitoring device.

22.

A warning had been given on 30 December 2022 that on 25 December 2022 an alcohol violation alert was received and should a further notice be received he is at risk of getting a licence warning.

23.

On 3 February 2023 the Secretary of State revoked the Claimant’s licence and recalled him to prison. The reasons for recall were as follows::

“You have been warned for a notice that you had an alcohol violation. Following this warning your alcohol monitoring device detected further alcohol use.
Given that alcohol is a direct link to potential for violent behaviour and serious offending your risk cannot be managed within the community at this time.
As a result of this information, the Secretary of State is satisfied that you have breached the following conditions of your licence:
1
They shall be of good behaviour and not behave in a way which undermines the purpose of the licence period;
11
They shall comply with any requirements specified by the supervising officer for the purpose of ensuring that they address their alcohol/drug/anger/offending behaviour problems;
14
They are subject to alcohol monitoring. Their alcohol intake will be electronically monitored for a period of 12 months from the date of their release, and they may not consume units of alcohol, unless otherwise permitted by the supervising officer;
In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described in the recall report completed by the Probation Service, and which is attached, the Secretary of State revokes your licence and recalls you to prison.” (emphasis original)

24.

The Claimant’s solicitor made submissions seeking release but also sought to challenge the original recall, on the basis that the Claimant was adamant that he had not attempted to tamper with his tag or consumed alcohol, that no levels of alcohol intake had been provided, that readings could have been due to a faulty tag and/or the rice wine his mother sometimes used in food, and that a DVLA blood test indicated very low levels of alcohol consistent with abstinence. It was also implied that no further investigations into whether the tag was working were made by the Defendant, despite the Claimant having questioned whether it was functioning correctly.

25.

The Parole Dossier contains a SCRAM Systems Non-Compliance Report from the Ministry of Justice dated 5 March 2024. There was a description of the mechanism for detecting alcohol and for tampering.

Alcohol was detected on 26 December 2022 (peak Transdermal Alcohol Concentration (TAC) 0.034%), with a note stating that routine diagnostics performed on the bracelet indicated that it was functioning properly at the time of the confirmed consumption event.

ii)

A confirmed tamper alert was detected on 28 January 2023. It was asserted that Alcohol was detected, which appears on the graph to have been in the range 0.025% to 0.050%, although whether the six criteria for alcohol detection were met is unclear. There was a note stating that routine diagnostics performed on the bracelet indicated that it was functioning properly at the time of the confirmed tamper event.

iii)

A confirmed tamper alert was detected on 30/31 January 2023. It was asserted that Alcohol was detected, which appears on the graph to have been in the range 0.025% to 0.050%, although whether the six criteria for alcohol detection were met is unclear. There was a note stating that routine diagnostics performed on the bracelet indicated that it was functioning properly at the time of the confirmed tamper event.

26.

The SCRAM Systems Non-Compliance Report concluded that there was one event that met SCRAM Systems criteria for alcohol consumption and two events that met SCRAM Systems criteria as a tamper event. It is unclear why the other two instances of alcohol detection were not formally classified as meeting the criteria for alcohol consumption.

27.

The Parole Board hearing took place on 14 March 2024. The Claimant was represented at the hearing; the Defendant was not. The witnesses were Rebecca Feek, described as a “Stand in” Prison Offender Manager and Katie Lockyer, a Community Offender Manager. The Community Offender Manager’s evidence was as follows:

The decision to recall the Claimant was solely as a result of breaches of his alcohol tag.

ii)

Alternatives to recall “could have” been considered.

iii)

An email warning had been given.

iv)

The Claimant denied alcohol use and tampering.

She found his accounts of what may have caused the tag’s indications to be inconsistent.

vi)

Overall she considered that the Claimant did not take responsibility or accountability for his actions.

vii)

She considered that the circumstances of the recall were offence paralleling in the sense that alcohol was linked to violence. There was “no other evidence” of raised risk of serious harm.

viii)

She did not know how/if the readings on the tag corresponded to levels of alcohol consumption.

ix)

The Claimant was not, at the date of the hearing, ready to be released. His attitude and approach to his recall and his lack of responsibility taking meant that he needed to remain in custody for longer.

28.

The Prisoner Offender Manager’s evidence was as follows:

The Claimant could be managed in the community.

ii)

The Claimant’s non-admission of the events leading to the recall did not substantially contribute to his risk.

iii)

The previous risk management plan had worked, as he had been recalled to custody before any serious harm occurred.

29.

The Parole Board decision was promulgated on 25 March 2024, and found release to be appropriate, on the basis that the recall did not satisfy either limb of the Calder test, and it therefore had been unlawful.

30.

As to whether the Defendant could establish on reasonable grounds that the Claimant was in breach of his licence conditions (para 4.3):

“The panel finds that there were not reasonable grounds. No evidence was presented which correlated the readings of the tag to a specific level of alcohol consumption. There is no evidence that [the Claimant’s] concerns about the tag were adequately explored with the service provider. On that basis alone, the decision to recall him to custody was unlawful.” (emphasis added)

31.

As to whether it was necessary to recall the Claimant (para 4.4):

“The panel finds that recall was not necessary, even if the alcohol readings had been sufficiently positive to indicate a breach. [The Claimant] was told that future tag alerts may trigger a licence warning, yet he was recalled to custody immediately on further alerts without any evidence that alternatives to custody were considered thoroughly, if at all. There was no evidence of escalating risk. There was no evidence of further offending.” (emphasis added)

32.

The statutory test for continuing detention was therefore found not to be satisfied (para 4.6):

“It is impossible for the panel to know whether or not Mr Nguyen did drink alcohol or tamper with his tag. Even if he did, the risk management plan which was in place at the time was sufficient to protect the public since he was recalled to custody (albeit, in this case, unlawfully) before any serious harm resulted. It is likely to do so again. Alcohol is the primary risk factor in Mr Nguyen’s case and a tag will provide insight into his compliance. However, an alert should not trigger an immediate recall without a thorough investigation of circumstances. A device reading is not a substitute for thorough decision making and risk assessment at the point that recall is being considered.” (emphasis added)