R (On the application of Goldsworthy) v The Secretary of State for Justice [2017] EWHC 2822 (Admin)

All offenders and prison law practitioners are familiar with the process of recall back to prison. Once an offender has been released on licence, they must comply with conditions set by the Parole Board and monitored by their Offender Manager.

If a person breaches a licence condition, their probation officer may be able to recall them to prison. Whilst it can often feel that this is an arbitrary, unfair and obscure process, there are rules that the probation service must follow.

Despite this, licence conditions can often seem broad and Offender Managers can appear to have power to effect recall indiscriminately. Some people are lucky to have excellent relationships with their Offender Managers. In such relationships, it appears there is more likely to be reasonable allowances made, and a good rapport can lead to an allowance for a technical but minor breach of licence.

However, some people are not so lucky. We have had clients who have reported being told that they could be recalled, if their Offender Manager does not approve of a certain type of behaviour. Missed appointments, lateness to meetings and entering a new relationship have all been cited as a reason to recall people to the prison estate.

Not all of these clients were aware that recall to prison has to be justified with reference to basic standards of reasonableness.

There is a two-step test to justify recall. If the probation service fails to meet it, an instance of recall can be challenged by way of a judicial review. The basic test is found in R (Jorgensen) v Secretary of State for Justice [2011].[1] For recall to custody to be lawful, it must be shown that;

• There were reasonable grounds for thinking that an offender had breached a licence condition, and,
• The recall was necessary in all the circumstances of the case

A breach of licence is not sufficient on its own. There must be an objective risk-based reason why the offender cannot remain in the community. As recall necessitates detention, it is meant to be a drastic and a last step. This is the most important part of being recalled. It must be objectively and rationally justified.

In R(On the application of Goldsworthy) v The Secretary of State for Justice [2017][2] a case in which Kesar & Co were instructed, an offender challenged his recall to prison successfully. The High Court ordered his release and the defendant Secretary of State was required to pay significant damages in respect of a period over which the claimant was unlawfully detained.

The Claimant was an elderly offender. He suffered numerous health problems in prison and was battling terminal cancer. He used a wheelchair to get around and had nerve damage in his extremities, which made it difficult for him to grip objects, walk and carry out day to day tasks.

He was released from prison to a care home. He had a difficult relationship with the staff and this culminated in an incident where a member of staff’s personal property was damaged. The care home indicated that they were not willing for him to return to their care. His probation officer took the decision to recall him to prison. Mr Goldsworthy challenged this decision, by way of judicial review.

In her judgement, Ms Dinah Rose QC sitting as a Deputy Judge of the High Court, found his recall to prison to be unlawful and unreasonable. The Judge noted that the behaviour exhibited by the Claimant was foreseen by the Parole Board, who had found him to be difficult at times. The judge noted;

It may thus be that Lyle House was not a suitable place for the Claimant to live. However, it does not follow from this that he had to be recalled to prison. When the original decision to recall him was made, a studio flat in Hounslow was available… neither the original recall decision nor the reconsideration explained why the risk presented by the Claimant…could not be adequately managed if he was accommodated in his own studio flat, with assistance being provided to him by visiting carers. This approach was unlawful, and amounted to a failure to take account of relevant considerations. As Silber J observed, detention is a last resort. It was incumbent on the Defendant to consider reasonable alternatives to prison before recalling him, and particularly to consider the viability of managing him in alternative accommodation which had already been identified as available..”

The failure to consider alternatives to recall were fatal to the Secretary of State’s case. Recall to prison was to be used as a last resort. In Goldsworthy a flat had been found to accommodate the Claimant. The probation service failed to explain why this arrangement wouldn’t have been sufficient to manage risk.

In total, the Claimant spent 33 days in detention. As the recall to prison constituted a breach of his Article 5 rights under the European Convention of Human Rights. The Secretary of State was also ordered to compensate the Claimant for the period spent in detention. He was awarded £4000.

It is important to be aware that the Parole Board is not the only route to release, following a decision to recall an offender. A decision to recall a prisoner is a public body decision which can be challenged by way of judicial review.

The recall of a person to prison, is to be used as a last resort. It is a drastic step and involves depriving a person of their liberty. It must therefore be undertaken in a lawful manner, or not at all.

Killian Moran

Solicitor

Kesar & Co Solicitors

 

[1]R (Jorgensen) v Secretary of State for Justice [2011] EWHC 977

[2]R(On the application of Goldsworthy) v The Secretary of State for Justice [2017] EWHC 2822 (Admin)