Foden, Re Judicial Review

Factual and Procedural Background

This judicial review application concerns the challenge by the Plaintiff to the decision of the Department of Justice for Northern Ireland dated 31 January 2012, which revoked the Plaintiff's licence and the decision of the Parole Commissioner dated 25 April 2012 refusing the Plaintiff's release on licence under Article 28(5) of the Criminal Justice (Northern Ireland) Order 2008. The Plaintiff also sought to quash the Parole Commissioner's decision dated 17 May 2012 denying an oral hearing regarding the earlier decisions. The Plaintiff alleged a breach of Article 5(4) of the European Convention on Human Rights (ECHR) due to the absence of a proper review of the recall reconsideration, contending that Article 28(6)(b) of the Order is incompatible with the ECHR.

The Plaintiff was sentenced on 2 September 2011 to a determinate custodial sentence of 12 months custody and 12 months release on licence for various offences including vehicle theft, burglary, and driving offences. The Probation Service report identified multiple risk factors contributing to the Plaintiff’s offending and emphasized the need for both personal commitment and external supervision to manage risk.

The Plaintiff was released on licence on 14 January 2012 with conditions including regular contact with probation officers, residence at a specified address with curfew hours, and compliance with licence purposes such as public protection and rehabilitation. Shortly after release, the Plaintiff repeatedly breached curfew and failed to engage as required. Following an arrest on 31 January 2012 for an alleged attempted burglary, the Department revoked the Plaintiff’s licence and recalled him to custody.

Subsequently, the Parole Commissioner refused immediate release on licence on 25 April 2012 and declined to grant an oral hearing on 17 May 2012. The Plaintiff initiated judicial review proceedings challenging the lawfulness of these decisions and the compatibility of the relevant statutory provisions with the ECHR.

Legal Issues Presented

1. Was the Department of Justice’s decision on 31 January 2012 to revoke the Plaintiff’s licence under Article 28(2) of the Order lawful?
2. Was the Parole Commissioner’s decision of 25 April 2012 lawful?
3. Was the refusal by the Parole Commissioner to grant an oral hearing a lawful decision?
4. Did the Parole Commissioner’s failure to inform the Plaintiff of the Sentence Manager’s letter in time to make representations render the decision unlawful?
5. Is Article 28(6)(b) of the Order compatible with Article 5(4) of the ECHR?

Arguments of the Parties

Appellant's Arguments

• Recall should only be based on a significant increase in risk of harm to the public, not merely on breach of licence conditions.
• The risk assessment must exclude consideration of the licence conditions themselves.
• The refusal of an oral hearing was unfair, especially given factual disputes and the Plaintiff’s claim that his risk could be safely managed in the community.
• The Plaintiff argued that the Sentence Manager had indicated the risk was manageable, and the Parole Commissioner’s failure to disclose the Sentence Manager’s letter was unfair.

Respondent's Arguments

• Breach or apparent breach of licence conditions can justify recall in the first instance.
• The Parole Commissioners assess whether continued detention is necessary for public protection.
• The test for recall involves assessing risk with the licence conditions in place.
• An oral hearing was not required as there was no crucial factual dispute affecting the decision.
• The Sentence Manager’s letter did not assist the Plaintiff’s case and its late disclosure did not render the decision unfair.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Khatun) v London Borough of Newnam [2004] EWCA Civ 55	Discretionary powers without statutory lexicon are subject to Wednesbury review; decision-maker determines relevance.	Supported the principle that the court defers to the decision-maker’s judgment on relevant factors.
An Application for Judicial Review by Dimitris Olchov [2011] NIQB 70	Risk justifies revocation; breach alone does not, but may evidence risk; importance of context and exploration of breach.	Distinguished from Secretary of State’s recall decision; relevant to Parole Commissioner’s decision-making.
Gulliver v The Parole Board [2007] EWCA Civ 1386	Reasonable belief of breach suffices for lawful recall; no need to prove actual breach or separately consider risk increase.	Supported lawful recall on reasonable belief of breach without assessing risk increase separately.
The Queen on the Application of McDonagh v Secretary of State for Justice [2010] EWHC 369 (Admin)	Followed Gulliver; Secretary of State’s reasonable conclusion of breach justifies recall.	Reinforced lawful recall based on reasonable conclusion of breach.
R v Parole Board ex parte Smith & West [2005] UKHL 1	Parole Board’s sole concern is public risk; recall is for protection, not punishment; assessment entrusted solely to Parole Board.	Clarified Parole Board’s role in risk assessment and that recall is protective, not punitive.
R (on the application of Jorgenson) v Secretary of State for Justice [2011] EWHC 977 (Admin)	Not every breach justifies recall; assessment of breach and appropriate response required; proportionality important.	Supported a nuanced approach requiring significant increase in risk before recall.
In the Matter of an Application by William John Mullan for Judicial Review [2007] NICA 47	Recall recommendation is important but not requiring full adjudicative process; decision customarily by commissioners.	Confirmed the procedural nature of recall decision and importance of commissioner involvement.
de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69	Consideration of explanations for breach to exclude fault where appropriate.	Applied to assess whether breach was excusable or justified recall.
South Bucks DC v Porter (No 2) [2004] 1 WLR 193	Requirement to inform person of reasons for decision to enable understanding and response.	Supported the principle of informing Plaintiff of recall reasons.
Bradley v The Jockey Club [2004] EWHC 2164 (QB)	Judicial review role is to ensure lawful limits and fairness; decision unlawful if outside reasonable range of responses.	Outlined court’s supervisory role and deference to primary decision-maker’s discretion.
R v Parole Board ex parte Smith and West [2005] UKHL 1	Common law procedural fairness does not always require oral hearing; fairness depends on case circumstances.	Supported discretion regarding oral hearings based on case specifics.
Osborne & Booth v The Parole Board [2010] EWCA Civ 1409	Utility of oral hearing assessed by its likely assistance to decision-making; no requirement if no difference to outcome.	Validated refusal of oral hearing where written evidence sufficed.
In the Matter of an Application for Judicial Review by James Clyde Reilly [2011] NICA 6	Oral hearing requirement depends on circumstances; Parole Board’s judgment on fairness is paramount.	Confirmed Parole Commissioner’s discretion in granting oral hearings.

Court's Reasoning and Analysis

The court analysed the statutory scheme governing licence conditions, recall, and the role of the Parole Commissioners under the Criminal Justice (Northern Ireland) Order 2008. The court emphasized that a prisoner with a determinate custodial sentence is automatically entitled to release on licence, regardless of risk, but must comply with licence conditions designed to manage that risk.

The court considered conflicting arguments regarding the basis for recall: whether recall must be predicated solely on a significant increase in risk of harm to the public or whether breach of licence conditions alone suffices. The court rejected the argument that risk must be assessed absent the licence conditions, finding it unreasonable to allow a prisoner to breach licence conditions with impunity on the basis that risk had not increased without conditions. Instead, the court held that breach or failure to engage with licence conditions may provide evidence of a significant increase in risk, justifying recall.

The court set out a lawful approach to recall requiring: (a) a breach or failure to engage; (b) consideration of explanations excluding fault; (c) assessment of whether the breach increases risk of harm; (d) whether that increase is significant; (e) informing the prisoner of reasons for recall; (f) proportionality of the decision; and (g) focus on public protection rather than punishment.

The court found the Department’s decision to revoke the Plaintiff’s licence proportionate and lawful based on breaches and failure to engage, which significantly increased risk. The Parole Commissioner’s refusal to release the Plaintiff was also lawful, as was the refusal to grant an oral hearing, given the absence of crucial factual disputes and the limited utility of oral evidence from the Sentence Manager, whose letter contradicted the Plaintiff’s assertions.

The court declined to consider the ECHR compatibility issue since the recall was lawful.

Holding and Implications

The court held as follows:

• The Department of Justice’s decision of 31 January 2012 to revoke the Plaintiff’s licence was lawful.
• The Parole Commissioner’s decision of 25 April 2012 refusing release on licence was lawful.
• The refusal to grant an oral hearing by the Parole Commissioner was lawful.
• The failure to disclose the Sentence Manager’s letter to the Plaintiff prior to the Parole Commissioner’s decision did not render the decision unlawful.
• The issue of compatibility of Article 28 of the Order with the ECHR did not arise given the lawfulness of the recall.

The effect of this decision is that the Plaintiff’s judicial review application is dismissed on all grounds. No new precedent was established beyond the application of existing legal principles to the facts. The decision reinforces the importance of assessing recall on the basis of risk with licence conditions in place and confirms the discretion of the Parole Commissioner in granting oral hearings.