EWCA Civ 1169
Summary from Lawtel:
PENOLOGY AND CRIMINOLOGY
RELEASE ON LICENCE : RETURN TO CUSTODY : STATUTORY INTERPRETATION : ELIGIBILITY FOR AUTOMATIC RELEASE : APPLICABILITY OF TEST UNDER S.255A(5) CRIMINAL JUSTICE ACT 2003 : s.255A(5) CRIMINAL JUSTICE ACT 2003 : s.255C CRIMINAL JUSTICE ACT 2003
Once the secretary of state had determined that a prisoner was not eligible for automatic release under the Criminal Justice Act 2003 s.255A(5), she was not obliged to keep the prisoner's eligibility under review. If he was not considered suitable for it, and the decision to that effect was not challenged in the courts, the prisoner had to be dealt with in accordance with s.255C.
The appellant prisoner (O) appealed against a decision ((2009) EWHC 3470 (Admin)) refusing his application for an order that the respondent secretary of state's refusal to release him on licence after his recall to prison was unlawful. O was recalled for breaching a licence condition. He was subject to standard recall rather than automatic recall, under which he would automatically have been released after 28 days. On O's application for judicial review the judge held that the secretary of state had been entitled to find that O was not suitable for automatic release under the Criminal Justice Act 2003 s.255A(5) because he was not satisfied that O did not present a risk of serious harm to members of the public, and was not obliged under s.255C thereafter to release him pending the Parole Board's decision. O claimed that the information considered by the secretary of state had been incorrect. Following the Parole Board hearing he was released on licence. O argued that the secretary of state was under a duty to keep O's suitability for automatic release under review both before and after the expiry of the 28-day period, and that if it emerged that the information on which the secretary of state relied when deciding that O was not suitable for automatic release was wrong, the narrower s.255A(5) test should be applied rather than the test under s.255C, which required consideration of public protection including the risk of re-offending generally.
HELD: (1) The secretary of state was first required to decide, under s.255A, whether the prisoner was eligible and suitable for automatic release. The test to be applied in deciding on suitability was that in s.255A(5). If he was not considered suitable for it, and the decision to that effect was not challenged in court, the prisoner had to be dealt with in accordance with s.255C. In that event, the secretary of state might release him again on licence, but must not do so unless satisfied that it was not necessary for the protection of the public that he should remain in prison. Further, the secretary of state had to refer the case to the Parole 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 had made representations with respect to his recall. There was 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 s.255A(5). The tests in s.255A(5) and s.255C(3) were intended to be different. The s.255C(3) test had been lawfully applied in O's case and his detention had been lawful (see paras 17, 21 of judgment).
For the respondents: Simon Murray