Oakes, R (on the application of) v Secretary of State for Justice & Ors [2010] EWCA Civ 1169

Case No C1/2010/0038[2010] EWCA Civ 1169
COURT OF APPEAL (CIVIL DIVISION)
[2009] EWHC 3470 (Admin)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE LANGSTAFF
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/10/2010
Before
LORD JUSTICE PILLLORD JUSTICE RIMERLADY JUSTICE BLACK
Between
The Queen on the Application of OakesAppellantSecretary of State for Justice and OrsRespondents
Stephen Field & Joanne Cecil (instructed by Petheridge Bassra Solicitors) for AppellantSimon Murray (instructed by Treasury Solicitor) for RespondentsHearing Hearing date : 07 October 2010
JudgmentLord Justice Pill :
[1]This is an appeal against the decision of Langstaff J dated 17 December 2009 whereby he refused an application by Jason Oakes (“the appellant”) for an order that his recall to prison by the Secretary of State for Justice and the refusal to release him was unlawful. Damages had also been claimed. The judge ruled:
“Accordingly as it seems to me on both the aspects of the claim which have been brought against the Secretary of State, the claim must necessarily fail, first because the Secretary of State was entitled to recall the claimant to prison, was entitled to take the view that he could not be satisfied that the prisoner on the information then available to him did not present a risk of serious harm to members of the public and was not obliged under Section 255C thereafter to release pending the decision of the Parole Board which was to be anticipated in the near future.”
[2]The judge quashed the decision of the Parole Board (“the Board”) of 15 September 2009 not to direct release of the appellant. That was on procedural grounds and in particular failure to permit an oral hearing. Following that ruling, the Board, on a consideration of the papers, on 22 January 2010, refused to recommend release and ordered an oral hearing. The hearing was held on 18 March 2010 and the Board directed that the appellant should be released on licence.[3]The background to the appellant’s recall to prison is set out at paragraphs 2 to 15 of the judgment of Langstaff J: “2. The central facts are these. On 9 February 2007 the claimant [appellant] who was then aged 30 was sentenced to a term of 58 months' imprisonment, consisting of 52 months for three domestic burglaries, two non-domestic burglaries, and breach of a suspended sentence with 18 further burglary offences taken into consideration, plus six months consecutive for an offence of escaping from (open) prison. 3. On 10 July 2009 he automatically became eligible for release. His licence was subject to a condition of residence with his partner, one Katie Dawson, a woman of good character who worked as a hotel manager in Bradford, and was otherwise subject to a curfew and to the general condition that whilst under supervision, to accept which was a condition of his licence, he would be well behaved, would not commit any offence, nor would do anything which could undermine the purposes of his supervision (which were to protect the public, prevent him from reoffending and help him to re-establish himself in society). 4. The claimant had an unenviable record. On some 27 occasions since he was 15 he had been convicted of some 79 offences with others taken into consideration. They included whilst he was a teenager offences of grievous bodily harm and assault occasioning actual bodily harm, common assault and assault with attempt to resist arrest, all committed on separate occasions. Not only had he had those convictions but on a number of occasions, numbering 12 in total according to his criminal record, there had been what are described as non-conviction disposals. These included a further Section 47 assault in 1995, an offence of affray in November 2006 and an offence of common assault on 19 January 2007. Between those latter two, in respect of which there had not been any court appearance, there was an offence of destroying or damaging property. 5. The pre-sentence report which had been prepared for the purpose of the hearing before the Bradford Crown Court which led to his lengthy sentence described him as a prolific offender who unless he made significant behavioural changes would continue to pose a high risk of reoffending. Factors said to increase the risk of reconviction were in particular his state of emotional well being, and a lack of appropriate coping strategies which had contributed to him misusing drugs. It was the misuse of drugs which was said to be directly linked to his offending. In addition it was said that he had an inability to see the views of others and that it was clear in the author's opinion ‘that unless he seeks support to remain illicit drug free, the risk of reoffending will be high’. 6. The report noted that then -- that was in January 2006 – he had indicated that he wished to overcome his dependence on illicit drugs. The author prophetically wrote: ‘Whilst his commitment to change needs to be tested in the longer term he currently presents as willing to engage in any sanctions which can support his motivation to remain illicit drug free. Such motivation appears to have been unsustainable in the past.’ 7. The burglary offences for which he was sentenced to the term of four years and four months were again said to be linked to ongoing substance misuse. 8. The claimant was released as I have noted on 10 July 2009. On each of the 22 July, the 29th and on the 31st he tested positively for the presence of opiates, cocaine and morphine within his system. This was plainly evidence that he was taking those illicit drugs freedom from which was an essential part of removing the risk of acquisitive crime which he posed to members of the community. 9. On 5 August he was given a final warning by West Yorkshire Probation Service arising out of the result of those tests. Nonetheless, because his partner was due to celebrate her birthday on 6 August, the Probation Service relaxed the curfew to which the claimant was then subject. He was able therefore to attend her birthday celebrations. As Blake J pointed out in granting permission, that almost inevitably would have involved an apprehension that the claimant would take alcohol. Abuse of alcohol had been involved with some of his earlier crimes. 10. On 7 August, that is in the early hours of the morning after the celebratory evening out at what seems to have been Tokyo's nightclub in Bradford, a CCTV operator scanning a public space reported to the police that they should attend there because she was concerned that a man was assaulting a woman. When the police attended they found the claimant and Katie Dawson. It was a matter of concern to the police that the claimant might have been breaking his curfew: they may well not have appreciated that he was entitled to be out that particular evening. Or it may have been that they suspected that he had been involved in assaulting her. Certainly there was physical contact between the two which might have been interpreted or it may be misinterpreted by the CCTV operator, though plainly she had sufficient concern to alert the police. Whatever the reason, they took the incident seriously, arrested him, and made the Probation Service aware of what had apparently occurred. 11. The consequence of this was that the Probation Service determined that it could no longer support the claimant within the community. In an assessment for the purposes of the Secretary of State the Probation Service recommended recall. The author of an extensive set of reasons on paper for recall recorded essentially the facts I have recited and added: ‘At the time of this arrest I am informed by the police that Mr Oakes was heavily under the influence of alcohol.’ 12. She assessed that due to the "alleged assault" the claimant demonstrated an increase in the level of risk of harm which he posed to Miss Dawson, drew attention to his history of violent offending relating to alcohol use when a youth, concluded that alcohol was linked to violence in his case and increased the risk which he posed to a partner, expressed concern that he had allegedly assaulted Miss Dawson whilst heavily under the influence of alcohol and yet he was residing at her address. 13. Two days passed during which it is plain that the claimant continued to reside with Katie Dawson. Nothing adverse to him is known arising out of those two days and plainly she took no steps to prevent him living with her. 14. At the conclusion of that period the Secretary of State determined to accept the recommendation of the Probation Service. He ordered the recall to prison of the claimant. He did so on what is termed standard recall as opposed to recall upon terms that he would be automatically released after 28 days. 15. Only a matter of five days after he came back into prison, having been in the meantime told of the reasons why his licence had been revoked and he had been recalled, the claimant made representations. Those representations were to the effect that there had been no violence, that there had been no excessive alcohol intake - he contended in that regard that he was not under the influence of alcohol since a doctor found him fit to interview after five hours - and that there was no reason to worry about the safety of his partner since they had a good relationship. He accused the Probation Service of giving him little help, asserted that he had not been arrested for assault but for breaking his curfew and thereby disputed the force of the reasons for recall. The Secretary of State referred those representations to the Parole Board.” ‘Whilst his commitment to change needs to be tested in the longer term he currently presents as willing to engage in any sanctions which can support his motivation to remain illicit drug free. Such motivation appears to have been unsustainable in the past.’ ‘At the time of this arrest I am informed by the police that Mr Oakes was heavily under the influence of alcohol.’[4]It is not surprising that a power of recall is conferred. A prisoner subject to licence is still serving his sentence. The recall was for a breach of licence condition (1) that the appellant “be well behaved, not commit any offence and not do anything which could undermine the purposes of supervision, which are to protect the public, prevent you from re-offending and help you to resettle successfully into the community”.[5]The appellant’s licence was revoked pursuant to section 254 of the Criminal

Justice Act 2003 (“the 2003 Act”) which provides:

“(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison. (2) A person recalled to prison under subsection (1)— (a) may make representations in writing with respect to his recall, and (b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.”
[6]The terms “standard recall” and “automatic” (or “fixed term”) recall referred to by the judge at paragraph 14 of his judgment emerge from section 255 of the 2003 Act. Section 255A provides, in so far as is material:
“(1) This section applies for the purpose of identifying which of sections 255B to 255D governs the further release of a person who has been recalled under section 254 ( ‘the prisoner’). (2) The prisoner is eligible to be considered for automatic release unless— (a) he is an extended sentence prisoner or a specified offence prisoner; (b) in a case where paragraph (a) does not apply, he was recalled under section 254 before the normal entitlement date (having been released before that date under section 246 or 248); or (c) in a case where neither of the preceding paragraphs applies, he has, during the same term of imprisonment, already been released under section 255B(1)(b) or (2) or section 255C(2). (3) If the prisoner is eligible to be considered for automatic release the Secretary of State must, on recalling him, consider whether he is suitable for automatic release. (4) For this purpose 'automatic release' means release at the end of the period of 28 days beginning with the date on which the prisoner is returned to prison. (5) The prisoner is suitable for automatic release only if the Secretary of State is satisfied that he will not present a risk of serious harm to members of the public if he is released at the end of that period. (6) The prisoner must be dealt with— (a) in accordance with section 255B if he is eligible to be considered for automatic release and is suitable for automatic release; (b) in accordance with section 255C if he is eligible to be considered for automatic release but was not considered to be suitable for it;”
[7]Section 255C provides:
“(1) This section applies to a prisoner who— (a) is a specified offence prisoner, (b) is not eligible to be considered for automatic release by virtue of section 255A(2)(b) or (c), or (c) was eligible to be considered for automatic release but was not considered to be suitable for it. (2) The Secretary of State may, at any time after the person is returned to prison, release him again on licence under this Chapter. (3) The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison. (4) The Secretary of State must refer to the Board the case of any person to whom this section applies— (a) if the person makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which he is returned to prison, on the making of those representations, or (b) if, at the end of that period, the person has not been released under subsection (2) and has not made such representations, at that time. (5) Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.”
Subsection 6 is not relevant for present purposes.[8]On an application of section 255, this was the sequence of events:(a) Under section 255C(1), the appellant was eligible to be considered for automatic release but was not considered to be suitable for it.(b) Within days of his recall, the appellant exercised his right under section 254 to make representations in relation to his recall.(c) These were referred to the Board under section 255C(4). Such reference would in any event have been necessary 28 days from the date on which the appellant was returned to prison, that is 10 August 2009.[9]The wording of the test to be applied when considering suitability for automatic release is, under section 255A(5) different from the wording of the test to be applied when considering whether the Secretary of State should release under section 255C(3). The first provision refers to “risk of serious harm to members of the public” and the second to “the protection of the public”. Section 255A(13) provides:
“In subsection (5) “serious harm” means death or serious personal injury, whether physical or psychological.”
[10]The section 255C test includes not only that aspect but, in the view of the Secretary of State, also the risk of re-offending upon release. The Secretary of State followed the section 255C procedure and referred the appellant’s case to the Board.[11]The test to be applied by the Board is defined at section 239(6) of the 2003 Act:
“The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to— (a) the need to protect the public from serious harm from offenders, and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.”
Thus directions by the Secretary of State which have regard to the risk of re-offending are contemplated.[12]I approach the issue of statutory construction on the assumption, advocated and accepted by both parties, that the only ground on which the Secretary of State may decline to conclude that the prisoner is suitable for automatic release is that stated in section 255A(5). I do not decide that point, however, and expressly leave it open. It appears to me arguable that the discretion conferred by section 255A(3) is a general discretion so that satisfaction of the subsection (5) requirement is a prerequisite of a finding that a prisoner is suitable for automatic release but does not conclude the issue. It is arguable that, even if the Secretary of State is satisfied under section 255A(5), that does not determine the manner in which the subsection (3) discretion must be exercised. The presence of the words “only if” in subsection (5) may support that argument. If that argument were to succeed, it would provide additional support for the conclusion I have in any event reached.[13]For the appellant, Mr Field accepted that the initial decision of the Secretary of State to revoke and recall under section 254 was not unlawful. Nor was it unlawful, on an emergency basis, not to treat the appellant as being suitable for fixed term recall with automatic release under section 255A(3). That concession is in my judgment amply justified having regard to the background events mentioned above. The findings of the judge on those issues are not challenged. The submission is that having made those decisions, the Secretary of State was under a duty to keep the question of the appellant’s suitability for automatic release under review both before and after the expiry of the 28 day period provided in section 255A(4).[14]Mr Field submitted that if and when it emerges that the information on which the Secretary of State relied when deciding that the appellant was not suitable for automatic release is erroneous, the section 255A(5) test should be applied. It was submitted that, in this case, it quickly emerged that the information, on the basis of which the Secretary of State declined to find the appellant suitable for automatic release, was defective. The representations summarised by the judge at paragraph 15 of his judgment were sound and there was no risk of serious harm to members of the public if he was released after 28 days. That created an obligation in the Secretary of State, it was submitted, (and I refer to the submission, subject to the reservation in paragraph 12 above) both within and beyond the 28 day period, to apply the test in section 255A(5).[15]The requirement under section 255C to refer to the Board was intended, Mr Field accepted, to be a safeguard for prisoners. However, a prisoner is entitled to require the Secretary of State himself to apply the narrower section 255A test when it emerges that the decision not to make the prisoner subject to automatic release was based on defective information. While there is a duty under section 255C to refer the prisoner’s case to the Board, in a case where the original decision not to classify the prisoner as eligible and suitable for automatic release under section 255A is shown to have been unjustified, the prisoner should continue to have the advantage of the narrower section 255A(5) test when a decision is taken on whether he should be released.[16]Mr Field referred to the unfairness which arises if a recall is shown to have been on grounds which either did not justify recall or justified it only on a more limited basis. The prisoner is deprived of the opportunity to be categorised as suitable for automatic release and he is deprived of a test which requires consideration only of the risk he presents of serious harm to members of the public and does not include consideration of the risk of re-offending generally.[17]I do not accept that construction of the statutory scheme and, even if I did, I would not accept that it applied on the present facts. The Secretary of State is first required to decide, under section 255A, whether the prisoner is eligible and suitable for automatic release. The test to be applied in deciding on suitability is, the parties submitted, that in section 255A(5). If he is not considered suitable for it, and the decision to that effect is not challenged in this court, the prisoner must be dealt with in accordance with section 255C (section 255A(6)(b)). In that event, the Secretary of State may release him again on licence (section 255C(2)) but must not do so unless satisfied that it is not necessary for the protection of the public that he should remain in prison. It is that test which the Secretary of State must apply. Further, the Secretary of State must refer the case to the Board either before the end of the period of 28 days beginning with the date on which he was returned to prison, or at the end of that period, depending on whether or not he has made representations with respect to his recall (section 255C(4)). I see no room, on the application of that scheme, for a prisoner once lawfully not found suitable for automatic release to be assessed under the test in section 255A(5).[18]In any event, I am not persuaded that the recall in this case is shown to have been misconceived having regard to the sequence of events as stated by the judge. I note the contents of the report of the Board’s Panel when release was directed on 18 March 2010:
“In your own evidence, you told the hearing that the incident had taught you a lot. You had now accepted, having watched the CCTV footage, how the police could have interpreted the situation as abusive and though you had not appreciated the experience of being recalled you could now see ways in which this had achieved positive outcomes.”
[19]It was further submitted that the expression “necessary for the protection of the public” in section 255C(3), should be given no broader meaning than the expression “risk of serious harm to members of the public” in section 255A(5). The expression “protection of the public” means protection from serious harm and not a more general test encompassing both that risk and the risk of re-offending, it was submitted. Mr Field relied on section 239(6) of the 2003 Act, cited at paragraph 11 above. That demonstrates the link, submitted Mr Field, between protecting the public, the expression used in section 255C(3) and “serious harm” the expression used in section 255A(5). “Public protection”, it was submitted, is a term of art meaning protection from “serious harm”. Further, examination of the directions given to the Board by the Secretary of State demonstrates the flexibility or versatility of the test to be applied, it was submitted. Whereas the guidance (PSO 6000) when determinate sentence prisoners are recalled refers to protecting the public, preventing re-offending and ensuring the prisoner’s successful reintegration into the community, the Indeterminate Sentence Manual (PSO 4700) provides:
“1.2 . . . Release will only take place once this period [the tariff period] has been served and the Parole Board is satisfied the risk of harm the prisoner poses to the life and limb of the public is no more than minimal. This means indeterminate sentence prisoners could remain in prison for many more years on preventative grounds after they have served the punitive period of imprisonment set by the trial judge. A release direction can only be made if the Parole Board is satisfied the risk of harm the offender poses to the public is acceptable. The release of indeterminate sentence prisoners is entirely a matter for the Parole Board and their decision is binding upon the Secretary for State.”
Thus, it was submitted, “protection of the public” in section 255C(3) may be read as meaning protection of “life and limb”. It should be noted that the paragraph relied on by Mr Field deals with release of an indeterminate sentence prisoner and not with release following recall on licence but that does not in itself invalidate Mr Field’s point.[20]For the Secretary of State, Mr Murray submitted that the use of different expressions in sections 255A(5) and 255C(3), tests to be applied for different purposes, is deliberate. The expression “significant risk to members of the public of serious harm” is used elsewhere in the 2003 Act, for example in sections 225 and following. That wording is reflected, and deliberately so, in section 255A(5) but a different expression, “protection of the public”, which does not reflect it, is used in section 255C(3). Mr Murray also submitted that it would be anomalous if, when considering whether release following recall was appropriate, the Secretary of State should apply a test which did not have regard to the risk of re-offending when, giving directions to the Board under section 239(6), she must have regard to preventing re-offending.[21]I accept the submissions of Mr Murray and the conclusion of the judge. The broader expression “protection of the public” was used advisedly in section 255C(3). I cannot read the different test stipulated in section 255A(5) into section 255C(3).[22]Mr Field accepted that, on an application of the section 255C(3) test, as so defined, detention until 18 March 2007 was not unlawful. That test has been lawfully applied and, the detention being lawful, I would dismiss this appeal.[23]I accept the possibility that this construction could lead to unfairness in the case of a misconceived recall where the appellant clearly does not present a risk of serious harm to members of the public but where a perceived risk of non-violent re-offending is present but I see no other way to construe the statutory scheme. The recall in this case was not, in my judgment, misconceived and no unfairness arises.

Lord Justice Rimer :

[24]I agree.

Lady Justice Black :

[25]I also agree.