Practice and Procedure


PUBLISHED October 28, 2003

Neither the decision of the secretary of state recalling a prisoner released on licence, nor a parole board's confirmation of that decision had been unlawful.Application for judicial review challenging the lawfulness of the recall of a prisoner released on licence. The claimant ('J') was released on licence on 11 September 2002. The licence given to J did not incorporate certain conditions that were intended to be included. On 12 September 2002, the second defendant ('the secretary of state') revoked the licence. The revocation was not executed and a new set of licence conditions were negotiated with J. On 22 October 2002, a further recall was made by a caseworking manager in the sentence enforcement unit on the basis of information given to the caseworking manager by telephone. On 24 October 2002, J's probation officer prepared a report, submitted to the secretary of state, recommending J's immediate recall on an emergency basis because J represented an immediate and significant risk of harm to the public and was also himself vulnerable in terms of his history of mental illness. On 25 October 2002, a document was prepared on behalf of the secretary of state providing J with a written statement of reasons for the revocation of his licence ('the recall decision'). It stated that the recall decision was due to his breach of a condition that required attendance for medical care, supervision or treatment. That condition had not been included in the copy of the licence in J's possession. Before the court, the secretary of state said that the written statement was incorrect and the true reasons for the recall were reflected in the probation officer's report. There was a formal referral of J's case to the first defendant ('the parole board'). On 10 December 2002, the parole board confirmed the recall decision. J challenged both the secretary of state's decision to recall on 25 October and the parole board's confirmation of that decision.HELD: (1) This was not a case where there was a statutory duty to give reasons as part of the notification of the decision so that "the adequacy of the reasons [was] itself made a condition of the legality of the decision" (R v Westminster City Council, ex parte Ermakov (1996) 2 All ER 302 distinguished). In the circumstances, the matters set out in the probation officer's report could properly be relied on as the best evidence of the reasons in the mind of the decision-maker at the time when the recall decision was made. The court could and should accept that the 25 October statement of reasons had been made in error. That statement still had an important part to play when considering the lawfulness of the parole board's confirmation of the recall, since it was that document on which J's solicitors relied when making representations on his behalf. However, the secretary of state had not been bound by that document when justifying the recall decision. (2) The secretary of state's recall decision, based as it was on the probation officer's report, had plainly been rational. (3) The role of the parole board was not simply to review the reasons given by the secretary of state. It had to look at the wider picture and decide for itself whether the recall should be maintained or whether the prisoner's immediate release should be recommended. (4) On the evidence, J had exactly the same material as was submitted to the parole board and had the opportunity to make representations in relation to that material. Neither the secretary of state, nor the parole board was to be blamed for J's failure to pass on documents to his solicitors, nor was the lawfulness of the parole board's decision affected by it. There had been no procedural unfairness as alleged by J. (5) There was no substance in J's complaint as to the rationality of the parole board's decision. It had plainly been permissible for it to have had regard to J's conduct leading to the September recall decision. The reasons given by the parole board record that the panel had read all the papers. The weight attached to the relevant considerations was a matter for the parole board. The conclusion that J was at high risk to himself and the public had been one reasonably open to the parole board on the material before it. (6) Neither of the decisions challenged had been unlawful.Application dismissed.

[2003] EWHC 2437 (Admin)