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

Section 28 of the Crime (Sentences) Act 1997 states as follows:

“28.— Duty to release certain life prisoners.

(1A)  This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to—

(a)

the part of the sentence specified in the minimum term order…

(5)

As soon as—

(a)

a life prisoner to whom this section applies has served the relevant part of his sentence,

(b)

the Parole Board has directed his release under this section,

 it shall be the duty of the Secretary of State to release him on licence.

(6)

The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—

(a)

the Secretary of State has referred the prisoner's case to the Board; and

(b)

the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined…” (emphasis added)

The Defendant’s power to revoke a life prisoner’s licence is contained in s32 Crime (Sentences) Act 1997 which states as follows:

“32.— Recall of life prisoners while on licence.

(1)

The Secretary of State may, in the case of any life prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison…

(3)

A life prisoner recalled to prison under this section —

(a)

may make representations in writing with respect to his recall; and

(b)

on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4)

The Secretary of State shall refer to the Parole Board— the case of a life prisoner recalled under this section.

(5)

Where on a reference under subsection (4) above the Parole Board directs the release on licence under this section of the life prisoner, the Secretary of State shall give effect to the direction.

(5A)  The Board must not give a direction unless satisfied that it is no longer necessary for the protection of the public that the life prisoner should remain in prison…

(6)

On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.” (emphasis added)

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].

The legislation does not set out the test to be applied for recall. However the test is the same as for initial release on licence: R v Parole Board, ex parte Watson [1996] 1 WLR 906.

Prisoners on licence can lawfully be recalled for breach of a licence condition only if two criteria are met (R (Calder) v Secretary of State for Justice [2015] EWCA Civ 1050 at [21] and [27] – [28], approving R (Jorgensen) v Secretary of State for Justice [2011] EWHC 977 at [16] and [25]):

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].

In considering whether to recall a prisoner on licence, the common law imposes an obligation on the Secretary of State to act reasonably and fairly. It must be a material consideration to see whether there is any fault on the part of the prisoner. The Secretary of State must investigate any explanation that has been put forward in order to satisfy himself that recall is justified: R (Benson) v Secretary of State for Justice [2007] EWHC 2055 (Admin) [2008] ACD 15.

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].

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.

The court said this:

“41.

The authorities cited by both parties support the proposition that the court should 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 such risk and correspondingly the court must exercise restraint in interfering with the decision-making process. Moreover, it would be undesirable and contrary to the principles set out in the authorities to impose a heavy duty of investigation 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.

42.

That said, the undoubted requirement for there to be reasonable grounds to justify the decision to recall, coupled with the importance of operating a procedurally fair process of decision-making, means thatthe 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.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)

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:

“39.

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)

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 role of the Parole Board is to have regard to all the circumstances of the case, including the circumstances of the recall, but in the end to decide whether to recommend the release of the prisoner having made an assessment of risk to the public, on the basis of all the material available to it when it makes its decision: R (Gulliver) v Parole Board [2007] EWCA Civ 1386 [2008] 1 WLR 1116 at [35].

The powers and duties of the Parole Board extends to reviewing the original recall decision of the Secretary of State by virtue of the statutory provisions rather than due to the Secretary of State’s directions: (R (Calder) v Secretary of State for Justice(supra) at [42] and [45].

The Parole Board is an expert body entrusted by Parliament with the function of undertaking the relevant evaluative assessment whether to direct the release of those sentenced to indeterminate and certain determinate terms of imprisonment if it is satisfied that it is no longer necessary for the protection of the public that they be detained: R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at [2].

A modern approach to the Wednesbury test is not to simply ask the question: was the decision irrational, but involves testing the decision-maker’s ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the decision-maker’s expertise) be safely justified on the basis of the evidence, particularly in a context where anxious scrutiny needs to be applied. The question becomes: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion: R (Wells) v Parole Board [2019] EWHC 2710 (Admin) [2019] ACD 146 at per Saini J at [31] – [33].

In a challenge to a decision of the Parole Board not to direct a prisoner’s release Saini J accepted that under the modern context-specific approach to rationality and reasons challenges, the area with which he was concerned (detention and liberty) required him to adopt an anxious scrutiny of the decision: Wells (supra) at [35].

The reasons for decisions “must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important and controversial issues”: South Bucks DC v Porter (No. 2) [2004] 1 WLR 1953 at [36].

Where there is no statutory duty to give reasons, the court will be cautious about accepting late reasons. The degree of scrutiny applied to subsequent reasons depends on the subject matter. Where important human rights are concerned (as in asylum cases), anxious scrutiny is required. Where the subject matter is less important, the court may be readier to accept subsequent reasons. The qualifications and experience of the decision-makers is relevant, the same comprehensiveness and clarity required of lawyers not being required from occasional non-lawyer tribunal chairs and members. Any supplementary reasons must elucidate or explain and not contradict the written reasons: Hereford Waste Watchers Ltd v Herefordshire Council [2005] EWHC 191 (Admin) [2005] Env LR 29 at [45] – [46].

The Defendant’s policy on recall is contained in The Recall, Review and Re-Release of Recalled Prisoners Policy Framework dated 1 April 2019 (“the Recall Framework”), which states as follows:

“4.2

Recalling an Indeterminate Sentenced Individual and Extended Sentenced Individuals

Consideration of Recall for Indeterminate Sentenced and Extended Sentenced Individuals

4.2.1

When assessing whether to request the recall of an indeterminate sentenced/extended determinate sentenced individual, community offender managers (COMs)/ Probation Practitioners must demonstrate a “causal link” in the current behaviour that was exhibited at the time of the index offence. One of the following criteria must be met when assessing whether to request the recall of an indeterminate sentenced individual:

i.

Exhibits behaviour similar to behaviour surrounding the circumstances of the index offence…

COMs/ Probation Practitioners must ensure that there is evidence of increased risk of harm to the public and at least one of the criteria set out above is met…

4.2.4

Prior to initiating recall, the COM/Probation Practitioner will liaise with the Senior Probation Officer (SPO) and discuss whether the recall threshold has been met. The decision to request recall must be based on an individual’s behaviour, or change of circumstances, whilst on licence. This will not necessarily be directly linked to a breach of a specific licence condition. The decision on whether to initiate recall must be made swiftly, to ensure the protection of the public.

4.2.9

Where the current behaviour exhibited is concerning but, the judgement of the COM/Probation Practitioner is that it does not meet the threshold to recall, they should consider what additional licence conditions or alternative enforcement action can be introduced to manage the individual’s risk in the community.” (emphasis added)

HMPPS’ AML [Alcohol Monitoring on Licence] Probation Guidance v2.0 states as follows:

“4.3

The breach process

Where there is a confirmed non-compliance event, the community-based Probation Practitioner makes a decision on the appropriate enforcement action based on the individual circumstances, risks linked to alcohol misuse and their professional judgement on a case by case basis.

The response should be swift and certain and contact with the Offender should be made without delay.

…

The community-based Probation Practitioner will review the alert information, contact the Offender to discuss the event and review the evidence to determine the best course of action based on their professional judgement. A breach of licence conditions does not automatically result in the instigation of recall.

If it is felt that the requirement for recall is not met, but there are issues of concern, Probation will issue a ‘Licence compliance letter’ to the Person on Probation, outlining the expectations required, noting further failure to comply could result in recall.

If the requirements for recall have been reached as risk is felt to have increased, and there is a decision not to recall as it is felt that there are safe alternatives to recall, this must be accompanied by a ‘Decision not to recall letter’ which is sent to the Person on Probation. The issuing of these letters can be accompanied by amended licence conditions. These may include increased levels of contact; cooperating with activities; or additional restrictions in relation to residence or curfew, to enable the risk to be managed and thus making the Licence more onerous. Further, this should also note that any further failures could result in recall.

The options are:

● Compliance letter

● Decision not to recall letter

● Licence Variation

● Licence revocation

It is a matter of professional judgment for the community-based Probation Practitioner in discussion with senior colleagues to decide what action to take in the event of an alcohol-related non-compliance and this needs to be clearly recorded. To make a defensible decision, the Probation Practitioner would need to assess the individual’s behaviour and circumstances, coupled with their alcohol misuse as detailed in the report.” (emphasis added)