What makes a recall unlawful? When does a recall to custody become more than just unjustified?

Any prisoner released for a period of time in the community on licence will be aware that they can be returned to custody for breaching or rather, allegedly breaching their licence conditions.

When clients are recalled they often tell us that they want to “appeal” their recall. Although there is no appeal process for offenders who find themselves subjected to a standard recall, their detention will be reviewed by the Parole Board. The Parole Board has the power to direct the release of recalled prisoners.

As well as considering whether to direct the release of a recalled prisoner, the Parole Board are also required to consider whether the recall was justified. However, this is not the same as deciding whether a recall was unlawful.

So what makes a recall unlawful? When does a recall to custody become more than just unjustified?

R (Wilson) v Secretary of State for Justice [2022] EWHC 1789 (Admin) was a successful Judicial Review claim brought by Howards Solicitors very own Emma Gauden and Jude Bunting KC. In this case, our client was recalled for allegedly failing to disclose a developing intimate relationship which was a condition of his licence. However, the way in which the Probation Service had handled the recall did not sit right with Emma. Emma felt that the decision to recall was unfair but was it unlawful?

Information that our client was in a new relationship was given to his Probation Officer by his ex-partner. The reliability of that information was questionable. The Probation Officer did not inform our client that this had been alleged and did not ask him if he was in a developing relationship.

Our client was eventually informed of the allegation after the decision to recall him was made but before the Part A (paperwork requesting recall) was written. Prior to the Part A being written, during a telephone call with his Probation Officer, he denied that he was in a relationship. His Probation Officer failed to include this fact in the Part A report.

Following the Judicial Review hearing it was held that the decision to recall our client to custody was procedurally unfair. HHJ Pearson held,

“That said, the undoubted requirement for there to be reasonable grounds to justify the decision to recall, coupled with the importance of operating a procedurally fair process of decision making, means that the decision-maker and those providing information to the decision-maker must at the very least ensure that the material that is provided for the decision is reasonably accurate…

…. In my judgment, a decision taken to recall the Claimant based on the assertion that he was in a developing intimate relationship with CF, taken without the knowledge that the Claimant denied such a developing relationship, is procedurally unfair in a way that may justify the court interfering by way of judicial review.”

As such the recall was found to be unlawful and the decision to recall was quashed. The Court ordered immediate release and our client was subsequently released from custody.

The case is currently still awaiting a decision on a claim for damages for unlawful detention.

Challenges against the lawfulness of recall decisions are rare and successful challenges are even rarer, however as proven with this case, they are not impossible.

Prisoners are recalled for a variety of reasons, sometimes the recall is unjustified and on occasion unlawful.

It is therefore important for anyone who finds themselves recalled to prison to instruct a solicitor who specialises in prison law.

Although our client felt his recall was unfair, it had not crossed his mind that it was unlawful. He was not going to seek legal advice or instruct a solicitor until a friend of his suggested that he should. His decision to seek representation meant that he was released quickly and the decision to recall him was quashed after being declared unlawful.

If you have been recalled, at the very least someone who specialises in prison law will submit representations to the Parole Board on your behalf and argue your case for you. As long as you pass the means test your representation will be covered by the Legal Aid Agency.

For any prison law advice please contact Emma Gauden at

Howards Solicitors on 01618729999 or email Law@howardssolicitors.com