Art.5 European Convention on Human Rights applied to the recall and detention procedures under the Criminal Justice Act 1991 for breach of an extended licence, since that Article was not satisfied by the original sentence of the court. Recall was not justifiable where the alleged risk of re-offending related to offences that were not of a similar nature to the triggering offence. In deciding whether to confirm a recall decision, the Parole Board was entitled to rely on hearsay evidence.Application for judicial review of a decision by the first respondent ('the Board') to confirm the recall and detention of the applicant ('S') by the second respondent ('the secretary of state') for breach of his extended licence. In February 2000 S was sentenced to an extended sentence of seven and a half years, consisting of a custodial term of 30 months and an extension period of five years pursuant to s.58 Crime and Disorder Act 1998, following his conviction for three sexual offences. S was released on licence in January 2001, subject to conditions that he: (a) be of good behaviour; (b) did not jeopardise the objectives of his supervision (namely to protect the public, prevent re-offending and to secure re-integration into the community; (c) reside at a specified bail hostel; and (d) did not to return to the hostel under the influence of alcohol. In July 2001 S was recalled to prison by the secretary of state at the request of S's supervising officer. That request was based upon: (i) S's failure to return to the hostel one night; (ii) his arrest for an alleged sexual offence; and (iii) the fact that he had already received written warnings for having returned to the hostel under the influence of alcohol. The Board confirmed S's recall. Before the Board no reliance was placed on S's absence from the hostel or his arrest. The Board nevertheless concluded that it was necessary in the public interest for S to continue to be confined, having regard to his serious drinking habits and his failure to respond positively to supervision. The issues for determination were whether: (1) Art.5 European Convention on Human Rights was engaged; (2) the Board had applied the wrong test in determining whether S should continue to be detained; (3) whether s.44A Criminal Justice Act 1991 was inconsistent with Art.5 of the Convention in that it purported to establish a presumption that a recalled prisoner would be detained unless the Board was satisfied that it was no longer necessary to confine him, whereas the presumption ought to be that the prisoner was to be released unless the public interest required his continued detention; and (4) the Board had erred both in relation to the evidence that it had admitted, some of which was hearsay, and the findings of fact that it had made.HELD: (1) Article 5 of the Convention was engaged by the recall and detention procedures under the 1991 Act for breach of an extended licence. R v Parole Board & Anor, ex parte Giles (2002) 3 All ER 1123 was distinguishable on the basis that in imposing an extended sentence the judge did not predetermine the period of actual custody, with the consequence that it was necessary for the prisoner's continued detention to be the subject of regular supervision by the court. (2) The scheme of the 1991 Act did not infringe Art.5 of the Convention as there would be no sanction for breach of licence if the principle of recall were unlawful and the sentence was in any case subject to periodic supervision. (3) An extended sentence could be imposed only where the judge concluded that here was a risk that the prisoner would commit offences of the same nature as the trigger offence, and it followed that recall was only justifiable if such a risk was established. The Board was entitled, nevertheless, to conclude that the evidence of S's general behaviour, namely his drinking and aggression, gave rise to such a risk. (3) On the facts it was clear that no presumption had been applied. However, on its ordinary construction s.44A of the 1991 Act was incompatible with Art.5 of the Convention. It could be rendered compatible by an appropriate construction of the word "necessary". (4) The Board was entitled to rely upon hearsay evidence. There was nothing in S's complaints as to the way in which the Board had dealt with the evidence.

[2003] EWHC 152 (Admin)