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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Howden, R (on the application of) v Secretary of State for Justice [2010] EWHC 2521 (Admin) (15 October 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2521.html Cite as: [2010] EWHC 2521 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT LEEDS

		Leeds Combined Court Centre 1 Oxford Row, Leeds LS1 2BG
		15 October 2010

Judge Langan:

Introduction

1. The claimant, who was and is a serving prisoner, was released on licence on 10 May 2010. On 28 May 2010, on the basis of police intelligence relating to the claimant's conduct since his release, the defendant, who is the Secretary of State for Justice, revoked the licence and the claimant was recalled to prison. That decision is the subject of challenge in these proceedings. Counsel have agreed that the issue for decision is whether, in what has to be regarded as a non-urgent situation, the defendant was entitled to accept the police intelligence at face value without making further enquiries.

Narrative

2. The claimant was born on 13 December 1990 and is accordingly 19 years old.
3. Prior to the claimant's being convicted of the offences to which I will refer in the next paragraph, he had received warnings from the police in respect of burglary of a boarded-up property and for taking a vehicle without the owner's consent. He had been arrested on suspicion of a number of offences, including attempted murder, but these arrests had not been followed by any prosecution.
4. On 17 October 2008, at Sheffield Crown Court, the claimant was sentenced to a total term of 54 months detention in a young offenders institution for offences which included wounding contrary to section 20 of the Offences against the Person Act 1861 and possession of a firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968. In the course of committing these offences, which were committed on 2 February 2008, the claimant had punched the victim, who was female, and had discharged a shotgun at the door of her home.
5. On 10 May 2008 the claimant was released on licence. His licence conditions included the standard condition to be well behaved, not commit any offence, and not do anything which could undermine the purposes of his supervision; and a specific condition which required residence at an address in the Parsons Cross area of Sheffield. The claimant was placed under the supervision of South Yorkshire Probation Service. His offender manager was Ms Clare Lupton.
6. On 26 May 2010 Ms Lupton received a telephone call from South Yorkshire Police in which they informed her of recent intelligence relating to the claimant. This was to the effect that, since his release, the claimant had been involved in supplying cocaine and had assaulted, and threatened to shoot, another person. Ms Lupton was informed by Detective Sergeant Anthony Slater that information had come from two different sources, but that the information about the drugs was not specific enough and that the victim of the alleged assault was not willing to make a complaint to the police. As an interim measure, the Probation Service decided to move the claimant from Parsons Cross to approved premises in Rotherham, and this was done on 26 May. That was also the day of a prearranged meeting between the claimant and Ms Lupton. In the course of that meeting, he admitted that he had been associating with known drug dealers.
7. It is for the Probation Service to initiate the recall process and for the defendant to decide whether to order recall. The decision is taken on behalf of the defendant by the Public Protection Casework Section of the Public Protection Unit at the Ministry of Justice.
8. On 28 May 2010 South Yorkshire Probation Service recommended the recall of the claimant to custody. The material sent by the Probation Service to the defendant consisted of the following. (1) A Request for Recall Report, with which I shall deal in the next paragraph. (2) The Police National Computer print-out of the claimant's convictions. (3) The Pre-Sentence Report which had been prepared for Sheffield Crown Court, which included the information that the offences had been "committed as part of a group action." (4) A witness statement from Detective Sergeant Slater, in which he said that the intelligence which the police had received was believed to be credible. (5) An e-mail from Acting Detective Chief Inspector Bob Chapman, stating that he fully supported Sergeant Slater's statement. (6) The most recent OASys report on the claimant. This had been completed on 10 May 2010, and assessed the level of serious risk to the public as high.
9. The Request for Recall Report was compiled by Ms Lupton. The condition alleged to have been breached was that relating to behaviour. Recall was requested on the basis of the police intelligence. Ms Lupton recorded that the claimant had, since his release, attended all appointments, engaged well with work undertaken, and abided by an exclusion area that had been added to his licence on his being moved away from Parsons Cross. Ms Lupton's recommendation was endorsed by her line manager and authorised by a senior manager.
10. The Request for Recall Report and the accompanying material were received at the Ministry of Justice on 28 May 2010, and the decision was recall the claimant to custody was taken on the same day.
11. Evidence has been given by Ms Kim Fitzgerald, who is a judicial review casework manager who deals with recall cases at the Ministry of Justice. She says this:

10. When deciding whether a recall is appropriate, consideration is given to current behaviour and how this fits in with the index offence and any previous offending. Risk factors, response to supervision and compliance to licence conditions are also taken into account.

11. Considerable weight is placed on the Request for Recall Report provided by an Offender Manager given that they supervise and are in close contact with the prisoner upon their release and are in the best position to assess risk. It is clear from the report in this case that careful consideration was given to the decision to request a recall given that the claimant was not arrested in relation to the alleged offences. Rather than take the decision to request a recall on immediate receipt of information from the police, the claimant was moved from the area in order to obviate any immediate risk whilst further confirmation was sought from the police and to enable proper consideration of the intelligence in the context of the claimant's offending behaviour. Prior to making the decisions to move the claimant and to subsequently request his recall, his Offender Manager sought advice from senior mangers at Probation who were concerned that, together with the claimant's association with drug dealers, the intelligence suggested that his risk of reoffending and harm to the public had increased.

12. The pattern of the Claimant's previous behaviour and nature of the index offences suggests gang links. The index offences, which were committed as part of a group enterprise, involved the Claimant punching his female victim in the face and discharging a sawn off shotgun at the door of her property. There is also evidence that the Claimant had taken a large hunting knife to the scene suggesting pre-planning. The information received from the police demonstrated the same violent behaviour of assault and threats using a firearm. Further, the Claimant has proven adjudications for assaulting other prisoners whilst in custody and he has been assessed as posing a high risk of harm to the public.

13. In light of this material before the caseworker, the decision was made to recall the Claimant for breach of his licence condition to be well behaved. The Claimant had made admissions to the Offender Manager that he had been associating with known drug dealers and he had come to the attention of the police again for the same bad behaviour as his previous offending.

14. Probation had spoken with the police about the recent intelligence regarding the Claimant's behaviour and had received a written statement from DS Slater as to the credibility of the intelligence, which was considered reliable. This was supported by a senior officer in the intelligence unit. Following their investigations, Probation's concerns were such that they considered that the Claimant's risk had increased unacceptably. At the time the caseworker in my section considered the Claimant's recall, the police had already provided all the information they could disclose about his behaviour to Probation and this was before the caseworker.

12. Following the revocation of the claimant's licence, his case was referred back to the Parole Board to consider whether he should be released again. An oral hearing before the Parole Board has been fixed for 29 October 2010.

Discussion

13. The decision under review is that of the defendant. Both the decision, and the recommendation by the Probation Service which led to it, were founded on the alleged breach by the claimant of the licence condition which required him to be of good behaviour. The claimant has admitted associating with drug dealers: it has not been suggested that this, at any rate by itself, would have justified the conclusion that the claimant was in breach of the licence condition. The key question is whether the conclusion was justified by reference to the unverified police intelligence relating to drug dealing by the claimant, and to an assault committed, and a threat made, by him. Without that intelligence, there would have been no recall and no proceedings of the kind now before the court.
14. What is required of the defendant before he orders a recall is that there is "evidence upon which he could reasonably conclude that there had been a breach": R (Gulliver) v Parole Board [2007] EWCA Civ 1386, para. 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 for Justice [2010] EWHC 369 (Admin), para. 28 (Judge Pelling QC). The threshold is plainly a modest one.
15. The material relevant to breach (which is more limited than that relevant to the larger question of recall) which was before the defendant in this case consisted of (1) the intelligence report by Detective Sergeant Slater, (2) his opinion that the intelligence was reliable, (3) information that that there was nothing more that the police could disclose. There must in this area be a spectrum between cases where the evidence of breach is more or less conclusive, when a finding of breach would not susceptible to a successful challenge; and cases in which an allegation comes from a dubious source or could easily be the product of malice, in which case a challenge would succeed. In this case, I have to decide on which side of the line the information before the defendant fell. In my judgment, it was information on the basis of which he could properly act as he did. The key point, as I see matters, lies in the opinion of Detective Sergeant Slater that his sources were credible. If one then asks whether, in the light of this opinion, the defendant was bound to make further enquiries of the police, looking (perhaps) for a statement from Detective Sergeant Slater with particulars of names, dates and places, my answer is a definite negative. The defendant has to weigh fairness to the defendant with mitigation of risk to the public, and the balance would swing too far against the public interest if the defendant were obliged to make a more meticulous examination of the facts.
16. Once it is accepted that the conclusion as to breach is a reasonable one, the rest of the case falls down. If one puts together that finding and the other information which the Probation Service placed before the defendant, his decision to recall the claimant to custody can only be characterised as one which could fairly be taken on the whole of the material which was before him.

Decision

17. It follows that the claim must be dismissed.