CO/5953/2002, CO/5908/2002 
Neutral Citation Number: [2003] EWHC 1923 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 12th March 2003
 
B E F O R E:

LADY JUSTICE HALE 

MR JUSTICE MOSES

IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM 

AND IN THE MATTER OF THE CRIMINAL JUSTICE ACT 1991 
 
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BARRY JOHN RODGERS
(CLAIMANT)

-v- 

THE GOVERNOR OF HM PRISON BRIXTON

THE SECRETARY OF STATEMENT FOR THE HOME DEPARTMENT 
(DEFENDANTS) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
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MR M SUMMERS & MR J BARRATT (instructed by Sugare & Co Solicitors) appeared on behalf of the CLAIMANT
MS C IVIMY (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
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J U D G M E N T 
(As Approved by the Court) 
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Crown copyright©
Wednesday, 12th March 2003
1.	LADY JUSTICE HALE:  These are linked applications, firstly for habeas corpus on the ground that the claimant's present detention in Brixton Prison is unlawful and, secondly, for judicial review of the decision of the Secretary of State made on 26th September 2002 to revoke the claimant's licence and recall him to prison.  
2.	The claimant is now aged 26, nearly 27.  In 1995, at the age of 19, already having an extensive criminal record, he faced three charges of armed robbery, three of taking a vehicle without consent and one of attempted taking.  He pleaded guilty.  It is a mark of the seriousness of those offences that, on 11th July 1996 at the Leeds Crown Court, he was sentenced to 13 years' detention in a young offenders' institution.  
3.	On 29th November 2001, having served half of his sentence, he was released on licence under section 35(1) of the Criminal Justice Act 1991.  The original licence document was signed by the claimant on 23rd October 2001 and by the Prison Governor on behalf of the Secretary of State on 24th October.  It states, among other things, in paragraph 1: 
"You will be under the supervision of a probation officer or a social worker of a local authority social services department and must comply with the conditions of this licence".
Paragraph two stated: 
"Your supervision commences on 26/11/2001 and expires on 25/02/2002 unless this licence is previously revoked".
The date 2002 was, it subsequently emerged, a mistake.  The date intended was 25th February 2005.
Paragraph 5 stated that:
"while under supervision you must ..." among other things:
"vi. be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community".
Paragraph 7 dealt with the consequences of non-compliance.  It stated: 
"If you fail to comply with any requirement of your probation supervision (set out in paragraph 3, 4 and 5 above), or if you otherwise pose a risk to the public, you will be liable to have your licence revoked and be recalled to custody until the date on which your licence would otherwise have expired ..."
4.	The claimant complied with the supervision conditions.  He continued to report to a probation officer, Rachel Garry, in Leeds until May 2002.  She then advised him that his licence had in fact expired and she did not issue any further reporting instructions.  His response to the licence up until then had been positive.  
5.	On 3rd September 2002, the claimant got into a row with a pub landlord in London and committed two offences of common assault and one of affray.  He pleaded guilty at Horseferry Road Magistrates' Court on 5th September 2002.  He was sentenced on 26th September to two months' imprisonment.  That is some indication of the Magistrates' Court's view of the comparative seriousness of the offences, considered in the light of the claimant's criminal record.  The Magistrates' Court did not make any order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.  By then, it was known that the Secretary of State was going to recall the claimant and the pre-sentence report, therefore, simply recommended that the present sentence be concurrent to the initial sentence.
6.	The pre-sentence report details the genuine progress made by the claimant since his sentence in 1996.  He was making considerable strides to distance himself from his career as a professional criminal.  He had spent the last year of his imprisonment in open conditions.  He had worked almost continuously for the past two years.  He was the main breadwinner in a family, with his partner and her two teenage children.  He was working long hours in London, away from home, as a joiner at the time of the incident.  
7.	Paragraph 5.1, which is headed "Assessment of the Risk of Harm to the Public and the likelihood of Re-offending", is worth quoting in full: 
"There is clear evidence from Mr Rodgers's positive response to his custodial sentence that he has [left] his offending lifestyle behind him.  Whilst he still knows many people who are part of the local offending scene, he has disassociated himself from them.  I would suggest that although the risk of re-offending remains, the risk is not great and it is likely that there would be warning signs prior to any offending, in particular how he was spending his leisure time and with whom.  Risk would also increase if he lost his job or his relationship broke down and should he re-offend, the risk of serious harm would be high.  There is no evidence that he poses a risk to probation staff or himself.  These new offences were it appears atypical in the sense that Mr Rodgers consumption of alcohol was 'out of character' but nonetheless resulted in the victimisation of both parties and such behaviour clearly highlights a susceptibility to 'losing control' when under the influence of alcohol.  But Mr Rodgers has a considerable investment in 'going straight' and this lapse appears just that, but needs to be addressed if the risk of harm is to be reduced".
8.	When responding to a request from London for information for this pre-sentence report, Rachel Garry consulted the prison.  It was realised that a mistake had been made in the licence date.  The prison, therefore, reissued the front page of the licence.  Miss Garry also consulted the Sentence Enforcement Unit and was advised that recall was necessary.  The Chief Officer, Rob Voakes, endorsed the form to the effect that "further serious offences" warrant recall, although he pointed out that the claimant might appeal.  We do not know just how much information they had about the new offences.  
9.	The Sentence Enforcement Unit referred the case to the Parole Board.  On 19th September 2002, the Parole Board recommended recall to prison.  Hence, on 26th September 2002, the Secretary of State revoked the licence and recalled the claimant to prison under section 39 of the Criminal Justice Act 1991.  The grounds given were as follows:
"You have been recalled to prison because you have breached condition 5(vi) of your licence in the following ways: 
It has been reported that you have failed to be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent [you] from re-offending and secure your successful re-integration into the community; in that, your behaviour has led to your arrest and charge with two offences of common assault and one offence of affray.  You initially appeared at Horseferry Road Magistrates Court on 05 September 2002 and have since been convicted of the above offences and are due to appear at Horseferry Road Magistrates Court for sentencing on 26 September 2002.  
In view of the offences for which you were originally sentenced and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence".
10.	The claimant is currently detained in Her Majesty's Prison Brixton.  Judicial review proceedings were launched on 23rd December 2002.  Representations were also made to the Parole Board on his behalf.  On 8th January 2003, the Parole Board rejected those representations, stating, among other things, as follows: 
"Notwithstanding that regrettable error [the error in the licence] the panel noted that his index offences were for armed robbery and that the convictions in September involved serious offences of violence.  In these circumstances, the panel considered that Mr Rodgers' liberty would present an unacceptable risk of a further offence being committed".
11.	The claimant has raised three issues: firstly, did the Secretary of State have power to act under section 39 of the Criminal Justice Act on the basis claimed?  (A habeas corpus issue.)  Secondly, if he did, did his actions constitute a breach of the legitimate expectation of the claimant, or an abuse of power? (A judicial review question.)  Thirdly, were they irrational?  (Another judicial review question.)  All are fully canvassed in the skeleton arguments, but the argument before us has concentrated on the first point.  
The law 
12.	The claimant is a long-term prisoner, as defined by section 33(5) of the Criminal Justice Act 1991.  Under section 33(2), the Secretary of State has a duty to release him on licence after he has served two thirds of his sentence.  Under section 35(1), the Secretary of State has power to do so if recommended by the Parole Board after he has served half.  Under section 37(1), where a short-term or long-term prisoner is released on licence, the licence: 
"shall ... remain in force until the date on which he would (but for his release) have served three-quarters of his sentence".
In this case, that date is 25th February 2005.  
13.	The Secretary of State may revoke the licence and recall a person to prison under section 39(1) if recommended to do so by the Parole Board, and under section 39(2) without such a recommendation where it appears to him expedient to do so in the public interest before such a recommendation is practicable.  
14.	In either event, the recalled prisoner has a right to make representations under section 39(3).  A person recalled under section 39(1) who does make representations, and any person recalled under section 39(2), must be referred to the Parole Board under section 39(4).  The Secretary of State must then release him if the Parole Board recommends it under section 39(5).  The Parole Board has to act in accordance with the directions given by the Secretary of State under section 32.
15.	That being so, it is obviously incumbent on the Secretary of State to base his own decision on the same criteria.  Those directions state that the purpose of supervision is three-fold: 
"To protect the public, to prevent re-offending, to ensure the prisoner's successful re-integration into the community".
In determining whether or not to recommend recall, the Parole Board is directed to consider three separate questions -- whether:
"(a) the prisoner's continued liberty would present an unacceptable risk of a further offence being committed.  The type of re-offending does not need to involve a risk to the public safety ... or 
(b) the prisoner has failed to comply with one or more of his [or her] licence conditions, and that failure suggests that the objectives of probation supervision have been undermined; or 
(c) the prisoner has breached the trust placed in him or her by the Secretary of State in releasing him or her on licence, whether through any failure to comply with one or more of the licence conditions, or any other means".
The directions conclude that "each individual case shall be considered on its merits without discrimination on any grounds".
16.	In addition to this, where an offence is committed during the original sentence, a court dealing with him for that offence has power under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to order him to be returned to prison for the whole or any part of the period equal in length to the period between the date of the new offence and the date on which he would have served the original sentence in full. 
Did the Secretary of State have power to recall? 
17.	The claimant accepts that the Secretary of State did have power to recall under section 39(1).  No criteria, other than the recommendation of the Parole Board, are laid down.  The defendant, therefore, argues that it is not an appropriate case for habeas corpus on the basis of the distinction drawn by Lord Donaldson in R v Secretary v of State for the Home Department, ex parte Cheblak [1991] 1 WLR 890 at page 94.
18.	That distinction is not always easy to draw, but, for present purposes, it does not matter.  Although judicial review is a discretionary remedy, if the court concludes that the Secretary of State did act outside his powers when recalling the claimant in the way that he did, the court is bound to quash his decision to recall the claimant, with the inevitable effect that the claimant is entitled to be released.  
19.	The claimant's principal argument is that the Secretary of State was not entitled to recall him for breach of condition 5(vi) of his licence.  The conditions in paragraph 5, unlike others in the licence, were expressly said to arise "while under supervision".  The supervision period stated in the licence had expired.  Condition 7 gave alternative circumstances in which he was liable to revocation and recall: either a failure to comply with any requirement of supervision, or otherwise posing a risk to the public.  The Secretary of State, however, purported to revoke for breach of the conditions of the supervision, which were no longer operative.  The recall power is limited to a breach of the particular licence granted.
20.	In opposition to that, the Secretary of State originally sought to argue that the length of the supervision period is automatically co-terminous with the length of the licence period, which is prescribed by section 37(1).  The claimant concedes that, if were correct, the shorter period defined in the actual licence would have been ultra vires and an ultra vires document cannot form the basis of a habeas corpus claim: see R v Secretary of State for the Home Department, ex parte Choudhary [1978] 1 WLR 117. 
21.	But it now is common ground that section 37(1) only defines the licence period and not necessarily the supervision period.  It is clear that the licence period and the supervision period can be different.  Section 37(4) requires the person to comply with "such conditions as may for the time being be specified in the licence", and gives power to the Secretary of State to make rules "regulating the supervision of any description of such persons".  No such rules have been made.  Section 37(4)(a) requires that the conditions included in a person's release include conditions as to his supervision.  Section 37(5) operates on the assumption that the Secretary of State can include, subsequently insert, vary or cancel those conditions.  That would be meaningless if the licence period and the supervision period necessarily coincided.
22.	The Secretary of State's argument, however, is that the licence could not prescribe a shorter period because section 37(5) provides that the Secretary of State can only include, insert, vary or cancel conditions in accordance with the recommendations of the Parole Board.  However, that argument presupposes evidence of a general recommendation as to the length of the supervision period, which we do not have.  We are asked to draw an inference from the material that we do have, to the effect that these were standard conditions.  
23.	The difficulty with that argument is that the Secretary of State has tried to have it both ways.  If he is to be held to the original reason given for the recall, then it is argued that that was correct because this was a standard condition.  On the other hand, he argues that he should not be held to his original reason because he could have recalled for another reason.  Hence, he argues that he had an alternative basis for recall in unacceptable risk to the public.  
24.	Condition 7, which is not linked to the continuation of supervision, recognises this.  He also argues that it can be inferred that this is what happened here.  The witness statement of Kerry Adams, dated 7th February 2003, states that, although well aware of the mistake, she took the view that she was concerned not just with breach of condition but with commission of further serious offences warranting recall.
25.	The claimant argues that it cannot be so inferred.  The Secretary of State himself draws a distinction between the two: see the directions to the Parole Board, which have been quoted earlier, and condition 7 in the licence itself.  The reasons given for recall rely solely on breach of condition in terms which are closely related to question (b) in the directions to the Parole Board.  They do not expressly address unacceptable risk in the terms suggested by question (a).  If they had done so, it would have been expected that they would have dealt, however briefly, with the contents of the pre-sentence report: the claimant's investment in "going straight", his regret for his lapse and, in particular, the clear distinction drawn in paragraph 5.1 of that report between the risks arising from his reverting to his old ways, which would be very serious but would emerge over time, during which they would become apparent, and those arising from this incident, which appeared to be a lapse, although needing to be addressed.
26.	It is a general principle that it is incumbent upon decision-makers to give the right reason at the right time.  A citizen should not have to start proceedings in order to discover why something has happened to him.  Later additional justifications should be approached with caution and should not accepted if these are inconsistent with the earlier one.  
27.	An example of this approach in this context is the case of the R v Secretary of State for the Home Department, ex parte Lillycrop, DC, 27th November 1996.  The judgment was given by Butterfield J.  He stated:  
"In Ex parte Ermakov (supra) Hutchison LJ with whom the other members of the Court agreed, at page 315 H said:  
'The Court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should ... be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used maybe in some way lacking clarity. These examples are not intended to be exhaustive but rather reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction'". 
Butterfield J pointed out that the Ermakov case and others were concerned with an express statutory obligation to give reasons.  However:  
"the careful and clear reasoning set out in ex parte Ermakov ... is in our considered judgment the proper approach which should be adopted in relation to the admission of evidence sought to explain reasoning in the decision making process of the Parole Board in cases such as those now under consideration.  
Accordingly we conclude that where evidence is proffered to elucidate correct or add to the reasons contained in the decision letter a Court should examine the proffered evidence with care, and should only act upon it with caution. In particular, a Court should not substitute the reasons contained in proffered evidence for the reasons advanced in a decision letter. To do so would unquestionably raise the perception, if not the reality, of subsequent rationalisation of a decision that had not been properly considered at the time". 
28.	These principles are particularly important in a decision as serious as this.  The system of early release from a sentence of imprisonment is a statutory indulgence, albeit one obtainable as of right after a certain period.  It does not deprive the original sentence of its effect as justification for detention.  The overall purpose of retaining the right of recall is to protect the public: see R v Bernard Lee Sharkey [2002] 1 Cr App R 409. 
29.	But recall has very serious consequences for the person recalled.  Sometimes those consequences will be out of all proportion to the events which have led to recall.  Hence one member of the Court of Appeal in the case of R (on the application of West) v The Parole Board [2002] EWCA Civ 1641, considered that the decision amounted to the determination of a criminal charge for the purpose of procedural safeguards in Article 6 of the European Convention on Human Rights.  The other members of the court disagreed with that proposition, but all considered it sufficiently serious to require more by way of procedural safeguards in the Parole Board than is their current practice.  This reinforces the view that it is incumbent upon those making these decisions to take particular care in both making and explaining them.  There clearly is a distinction between recalling for breach of supervision and recalling for unacceptable risk.
30.	The Secretary of State in this case was not able to recall for breach of condition 5 and 6.  He cannot accuse somebody of breaching a condition of his supervision when his own agents have not only once, but twice, told the person that he is no longer under supervision.  He could have recalled for unacceptable risk, but, in doing so, he had to say so at the time and explain why.  In my judgment, therefore, the decision was unlawful and must be quashed.  
31.	The arguments presented to us based on legitimate expectation and rationality may lend force to these conclusions, but would not succeed if these did not.  So I do not propose to address them.  
32.	I would add this.  The public is not deprived of protection if the claimant is released now.  Firstly, it would be open to the Secretary of State to reconsider his decision to recall.  If he did so, he would have to address the right question and he would have to explain himself properly, and the matter would then be subject to challenge before the Parole Board.  Secondly, if, on reflection, the Secretary of State does not consider recall a necessary response to the further offending in the light of all the circumstances, the public will still be protected.  The claimant will still be on licence.  The supervision condition can be re-imposed.  
33.	Indeed, I would say that everybody would be well advised to assume that the re-issue of the front page did amount to the re-imposition of that supervision condition, but it would be advisable for the Secretary of State to dot the "i"s and cross the "t"s by getting the appropriate recommendation for that to be done, and then fresh documentation can be issued and acknowledged by him.  If anything goes wrong again, he will be in no doubt at all about where he stands, but it may not be too late for him to pick up the pieces of his reformed lifestyle, possibly even encouraged that the system is capable of treating him fairly.
34.	MR JUSTICE MOSES:  I agree.  This case exposes the danger of rubber stamp reasoning and of ex post facto decision-making.  The reason given to this claimant for his recall bears all the hallmarks, having examined other cases, of rubber stamp reasoning, which did not, if one is to accept the evidence of Kerry Adams, reflect the true position.  The result is, for the reasons given by my Lady, that the Secretary of State is hoist by his own petard.
35.	MS IVIMY:  My Lady, my Lord, thank you.  May I just have one moment to take instructions? 
36.	(Pause).  
37.	My Lady, I would ask for permission to appeal and for an order that the claimant continue to be detained pending determination of that appeal.  The Secretary of State has taken the view, and the Parole Board have taken the view, that the claimant does present an unacceptable risk to the public and, in those circumstances, we submit that it is not appropriate that he be released until this matter is finally determined.
38.	LADY JUSTICE HALE:  Yes.  Thank you, Miss Ivimy.  Yes, Mr Barratt.
39.	MR BARRATT:  My Lady, I hope my learned friend -- 
40.	LADY JUSTICE HALE:  My Lord is wondering whether we need to trouble you.
41.	(Pause).  
42.	Miss Ivimy, we take the view that it is not appropriate to grant permission to appeal.  This is the application of well established principles to the facts of this case and, in those circumstances, it is not appropriate to give permission to appeal.  
43.	Nor do we think that, in the circumstances, it is appropriate for us to grant any sort of stay on our judgment, pending any further applications you may wish to make. 
44.	MR JUSTICE MOSES:  If he is so dangerous, (a) it is a pity you did not tell him when you recalled him, but you had better hurry up and think again and then you can recall him.
45.	MS IVIMY:  My Lord, my Lady, thank you.  There is one further matter, which is that if he is not to be detained, it may be that we will pursue our application to ask for permission in the House of Lords and, in those circumstances, it is appropriate that he be released on bail, pending resolution of that.
46.	LADY JUSTICE HALE:  He is on licence, of course.
47.	MS IVIMY:  Yes.  He will be released on licence.
48.	LADY JUSTICE HALE:  Do you need any more than that, given all the other things that you can do?
49.	MS IVIMY:  My Lady, I do not.
50.	LADY JUSTICE HALE:  Mr Barratt.
51.	MR BARRATT:  My Lady, I am grateful.  I would seek to ask for legal aid taxation in this matter.  I am instructed that this has been requested, but I thought I would err on the side of caution.
52.	LADY JUSTICE HALE:  It was requested on the earlier occasion and it was granted.
53.	MR BARRATT:  I am grateful for that indication.  May I also ask for, if possible, a declaration that Mr Rodgers was falsely imprisoned by the Secretary of State? 
54.	LADY JUSTICE HALE:  We have just quashed the decision and that is sufficient.
55.	MR BARRATT:  Also, my Lady, there is obviously the question of costs, if felt appropriate, perhaps to be taxed to a further date.
56.	LADY JUSTICE HALE:  Yes.  You do not resist that, do you, Miss Ivimy? 
57.	MS IVIMY:  No. 
58.	LADY JUSTICE HALE:  Yes.  Thank you.