Home > Cases > R (Calder) v Secretary of State for Justice [2015] EWCA Civ 1050

In this case, the Court of Appeal (Lord Thomas CJ, Hallett & Davis LJJ) reviewed the principles applicable to decisions by the Secretary of State for Justice to recall a prisoner who has been released on parole back to prison on the ground that he has breached the standard parole licence condition requiring him to be “well behaved” and “not to do anything which would undermine the purposes of your supervision which are to protect the public, prevent you from re-offending, and help you to resettle into the community”. Giving the sole reasoned judgment, Lord Thomas CJ held that these terms were self-explanatory and did not require any further judicial gloss, disapproving the exegesis suggested in R (McDonagh) v. Secretary of State for Justice[2010] EWHC 369 (Admin) at para. 28.

Lord Thomas CJ went on to consider whether the fact that a recalled prisoner could, under the Criminal Justice Act 2003, challenge his continued detention before the Parole Board meant that judicial review should not ordinarily lie against a recall decision because the Parole Board proceedings represented a suitable and effective alternative remedy.

The Secretary of State had submitted that the Court should follow the obiter dicta observations of Sir Igor Judge PQBD and Sir Anthony Clarke MR in R (Gulliver) v. Parole Board [2008] 1 W.L.R. 1116, to the effect that in view of the fact that the Parole Board exercised a supervisory role over the Secretary of State’s decision to recall a prisoner, judicial review should not ordinarily be available but it might nonetheless be granted in appropriate cases where on the facts the Parole Board might not be able to provide an adequate or sufficient remedy. The Appellant had contended that Gulliver was wrongly decided or alternatively was no longer applicable because the Parole Board’s functions had changed in the intervening time.

Accepting the Secretary of State’s submissions, Lord Thomas CJ held at paras. 48-50:-

“48. In the submissions to us it was accepted on behalf of the Secretary of State that a court’s important duty was to review cases concerning the liberty of the subject and that it was unlikely that the court would be overburdened if applications by recalled prisoners to review the lawfulness of the recall were permissible in proper circumstances. We were told that between April 2014 and March 2015 there had been 18,450 recalls, but in only 36 cases had letters before action challenging the lawfulness of the recall been received; 20 of those had applied for permission and in only 6 of those cases had permission been granted. We were told that the reason for the very low number of applications was that where representations were made to the Secretary of State in relation to a decision to recall the Secretary of State routinely exercised the power under s.254(2A)- (2B) to reconsider the decision.

49. Thus although, as I have stated, I consider that the views expressed in Gulliver as to the statutory responsibility of the Parole Board to examine the original decision were right and there is no reason to depart from them, a court should never simply refuse an application for judicial review of the decision to recall on the basis that the issue will be decided in due course by the Parole Board. A court will consider all the circumstances including the timescale within which the issue will be decided by the Parole Board and the strength of the submissions put forward to challenge the decision of the Secretary of State in the light of the threshold the Secretary of State has to meet to establish the lawfulness of the recall.

50. In my view the question of the alternative remedy is therefore a question generally for consideration at the permission stage. Once permission is granted, bearing in mind the duty of the court to protect the liberty of the subject and determine for itself issues of liberty, it is unlikely generally to be a factor of material weight at the hearing of the judicial review.”

In the light of the Court’s findings on the appropriate legal principles, the appeal was dismissed on the facts.

Charles Banner appeared for the Secretary of State for Justice, instructed by the Government Legal Department.

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