Recall to custody must be proportionate  

R (Jorgenson) v Secretary of State for Justice [2011] EWHC 977 (Admin)
> judgment

In providing guidance on the proper approach to be adopted by the SSJ in decisions to recall, Silber J held that §25:

“So I consider that the legal position is that when faced with a challenge to a decision to recall a prisoner because of the risk to the public for breach of a condition of his or her licence, the court should consider:-

i) Whether there is "evidence upon which he could reasonably conclude that there had been a breach": R (Gulliver) v Parole Board [2007] EWCA Civ 1386, [5] (Sir Anthony Clarke MR). Put slightly differently, the question "is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself by reference to "the standard of good behaviour": R (McDonagh) v Secretary of State forJustice[2010] EWHC 369 (Admin), [28] (Judge Pelling QC).If the Secretary of State cannot satisfy that test, the recall is unlawful but if he or she can, it is necessary to progress to the next questions;

ii) Whether there is the absence of any fault on the part of the prisoner so as not to justify recall (R (Benson) v Secretary of State for Justice (supra)) because if there is not any fault, this will probably be a crucial or at least a very material consideration militating against justifying recall;

iii) Whether the decision to recall the prisoner can be justified on the basis that it is necessary in order to protect the public because of the dangers posed by the prisoner while out on licence (R (West) v Parole Board(supra) and de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (supra));

iv) Whether adequate reasons have been set out to justify that decision so that the prisoner is, in Lord Brown's words in the South Bucks case (supra), able "to understand why the matter was decided as it was and what conclusions were reached on the principal important and controversial issues", which in this case means able to understand why his recall is justified;

v) It is not entitled to make the decision on whether the prisoner should have been recalled because of the limited nature and extent of its power to quash a decision on a judicial review application…”

As to v), his Lordship accepted that the Court must anxiously scrutinise any recall decision; see §44.

In terms of proportionality itself, Silber J held that; §§47 – 48:

“47. The Secretary of State is not obliged to consider alternatives provided that he or she focuses on the central issue and concludes that the safety of the public makes it necessary to order the recall of the prisoner who has been released on licence because the risk to the public cannot be contained in any other way, which restricts the freedom of the claimant less. That is precisely what was decided in Saadi in the passage quoted in paragraph 18 above.

48. [However] In some cases, the aim of protecting the public might be achieved by imposing a condition in the licence that the prisoner does not enter a particular area or associate with certain individuals. Indeed, the decision to recall can only be necessary to protect the public if there is no other less onerous way of protecting the public.” (emphasis added)

Comment

This decision is welcome, as it makes it clear that a breach in itself cannot justify recall; despite what was contended by the SSJ or what might have been inferred from earlier caselaw. However, any review by a Court has been restricted to a Wednesbury assessment, albeit with anxious scrutiny; and it is therefore still likely to be hard to challenge recall decisions successfully.

The Claimant is considering whether to appeal.

The Claimant was represented by Vijay Jagadesham of Garden Court North and Elaine Moloney from Robert Lizar Solicitors .