Practice and Procedure


PUBLISHED March 12, 2003

Where the secretary of state had given reasons for the recall of a prisoner previously released on licence and those reasons were unfounded, any ex post facto reasoning for that recall was to be approached with caution.Application for a writ of habeas corpus following the decision of the Secretary of State for the Home Department ('D') on 26 September 2002 to recall the claimant ('R') to prison on the express basis of a breach of a supervision condition of his licence. R had been sentenced to 13 years' imprisonment in 1996. In November 2001, he was released on licence under s.35 Criminal Justice Act 1991. The licence should have been due to expire in February 2005 but the licence document erroneously stated that it expired on 25 February 2002. In September 2002, R pleaded guilty to two offences of common assault and affray, whereupon the error on the face of R's licence was discovered, the licence document was re-issued and R was recalled to prison. R argued: (i) that his licence had expired on 25 February 2002; (ii) that his supervision period had expired in May 2002; (iii) that he could not therefore be in breach of any supervision condition; and (iv) that his recall could not be justified by any ex post facto reasoning that he presented an unacceptable risk to members of the public.HELD: (1) The original reasons given for R's recall did not address the issue of unacceptable risk. (2) It was a general principle that the right reasons for a recall were required to be given at the right time and any later justification should be approached with caution if that were inconsistent with the original reasons given. (3) Early recall had serious consequences and it was incumbent on those making that decision to act with care. (4) It was not possible to say that there had been a breach of a supervision condition as no such condition had been in force. (5) The public would not be deprived of any protection from the claimant as D could still reconsider a fresh recall. (6) The present case exposed the dangers of 'rubber stamp' reasoning and ex post facto decision making.Application allowed. Permission to appeal refused.

[2003] EWHC 1923 (Admin)