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R (Calder) v Secretary of State for Justice [2014] EWHC 4138 (Admin)

DATE: 31 Oct 2014

This case concerned an individual who was released on parole from a prison sentence for wounding with intent. His parole licence stated that he was to be well behaved at all times. After his release, the police obtained intelligence that he was planning an attack on the life of another individual. The reported this to the National Offender Management Service ("NOMS") within the Ministry of Justice and requested his recall to prison for breach of the good behaviour condition on his licence. The police were unwilling to provide any further details of the intelligence that they had received due to the on-going and highly sensitive nature of the matter. They stated, however, that they considered the intelligence to be credible. 

The Claimant sought judicial review of the decision to recall him on the basis that NOMS ought to have required the police to provide further specifics of the evidence given that NOMS and not the police was the relevant decision-maker. 

Dismissing the claim, HHJ Gore QC (sitting as a Deputy Judge of the High Court) held: 

1. The test for the Court was whether there was evidence on which NOMS could reasonably conclude that there had been a breach of the claimant's good behaviour condition? The threshold was a modest one. This was not a case where of 'knee jerk acceptance of tittle-tattle without evidence' - the NOMS decision-maker had given clear and anxious scrutiny of all the material provided to him before reaching the decision to recall. He had been entitled to view that police's representations in the light of earlier evidence that the claimant was living a lifestyle which his stated income could not afford, pointing towards possible criminal income. The decision-maker had addressed his mind to the question of whether recall as opposed to some lesser sanction was necessary, and his conclusions in that regard were not perverse. 

2. In any event, even if the Judge had been persuaded that the decision to recall was unlawful, he would not have granted any relief. Judicial review is a remedy of last resort and is normally withheld when there is a suitable and effective alternative remedy. Here, the claimant had a statutory right to persuade the Parole Board that he should not remain in detention. Parole Board proceedings had commenced and a decision was anticipated within the month. There was therefore a suitable and effective alternative remedy for determining whether the Claimant should be released. The issue of whether, if the decision to recall was unlawful, it followed that the claimant was entitled to damages for unlawful detention was a matter for civil proceedings and not judicial review (although such proceedings would be faced with highly persuasive authority to the effect that the detention would remain lawful pending the Parole Board's determination). 

Charles Banner appeared for the successful respondent, the Secretary of State for Justice, instructed by the Treasury Solicitor.