England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Silber
[2009] EWHC 3747 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2010

Lord Justice Richards :

1. The appellant is serving a sentence of life imprisonment for a murder committed in 1993. He has other convictions going back many years before that. Since at least 1983, responsibility for his supervision by the probation service has lain in the West Midlands area, where he was brought up, lived and committed all or most of his offences. At the time of the decision to which these proceedings relate, responsibility lay specifically with the respondent, the West Midlands Probation Board (now, as a result of recent statutory changes, the Staffordshire and West Midlands Probation Trust). For reasons to which I will come, the appellant requested the transfer of his supervision from the respondent to the Avon and Somerset Probation Board (now the Avon and Somerset Probation Trust). The respondent refused to agree to the transfer. The appellant challenged that refusal by way of an application for judicial review. The application was dismissed by Silber J, against whose order the present appeal is brought.
2. In order to explain the issues in the appeal, it is necessary to say a little more about the facts. I can, however, omit much of the detail helpfully set out in Silber J's judgment.
3. In about 2003, while serving his sentence, the appellant established a relationship with a Ms Kemp, who lives and works in Bristol. Their original contact was by telephone, but she then visited him frequently in prison. At some point they became engaged.
4. In June 2004 the minimum period to be served by the appellant under his sentence of life imprisonment expired. In April 2005 he was transferred to open conditions at a prison near Gloucester, from where he was released on temporary licence on a number of occasions and was allowed to travel to Bristol and thereby to develop his relationship with Ms Kemp. Release on temporary licence ceased, however, as a result of concerns about the vulnerability and safety of Ms Kemp. In November 2006, while those matters were still being investigated, the appellant was transferred back to closed conditions following an allegation (subsequently not found proved) that he had threatened a fellow prisoner with a knife. The appellant has remained in closed conditions since that time. In June 2008 the Parole Board decided after an oral hearing that the level of risk posed by him was too high for release or for transfer to open conditions.
5. Since 2005 or early 2006 the appellant has asked to have his probation service supervision transferred from the respondent to the Avon and Somerset Probation Board. His request is linked with his wish to put forward a release plan under which, after release from prison, he would live for some time in a hostel in the Bristol area and would then go to reside with Ms Kemp at her home address in Bristol.
6. A transfer of supervision would require the agreement of both the respondent and the Avon and Somerset Probation Board. The respondent has consistently refused the appellant's request. After some vacillation, the Avon and Somerset Probation Board decided that it, too, would refuse a transfer. The appellant has confined his challenge to the respondent's decision. The fact that there has been no challenge to the decision of the Avon and Somerset Probation Board was a matter of evident concern to Silber J, who made clear that it would have caused him to refuse relief in the exercise of his discretion if the appellant had succeeded on the substantive grounds for judicial review. Mr Southey submits, however, that the Avon and Somerset Probation Board could be expected to reconsider its own decision in the light of the court's judgment if the respondent's refusal were found to be unlawful. There is some force to that point, and in the circumstances I do not think that the appeal can be said to be academic.
7. The respondent's reasons for refusing the request for a transfer are set out conveniently in a letter dated 23 October 2008 in response to a letter before claim. The respondent's letter referred to the relevant history and the refusal decision previously communicated in correspondence. It continued:

"(d) The West Midlands Probation Board has taken into account the community links that Mr Francis has with the Avon and Somerset area, and in particular the circumstances of Mr Francis's relationship with Ms Kemp and the wish of them both that he live with her at her address in Bristol should he be released. … [T]he West Midlands Probation Board is entitled in the exercise of its discretion … to come to the view that the risks presented by Mr Francis were such that it was not appropriate for Mr Francis to reside with Ms Kemp, that his risk was better managed if he remained subject to supervision by the West Midlands Probation Board rather than by the Avon and Somerset Probation Board, and that it should not seek to transfer his supervision to the Avon and Somerset Probation Board."

8. The letter referred to the changes of view by the Avon and Somerset Probation Board and to that board's current acceptance that residence with Ms Kemp was not consistent with the purpose of securing public safety and did not currently constitute a viable release plan. It also referred to the Parole Board's decision declining to direct the appellant's release or transfer to open conditions. It then stated:

"(f) In making its decision the West Midlands Probation Board was entitled to take into account as relevant considerations the risk assessment and views of the Multi-Agency Public Protection Panel, its own assessment of the risks that Mr Francis presents, and the viability of a release plan that involves him residing with Ms Kemp.

(g) The West Midlands Probation Board has taken into account the possibility of a release plan whereby Mr Francis resides at a probation hostel in the Bristol area. Such a release plan is considered not to be viable. That such a possibility has been and might yet again be considered does not require the West Midlands Probation Board to decide to seek transfer of Mr Francis' supervision to the Avon and Somerset Probation Board.

(h) In considering the viability of a release plan (such as a release plan whereby Mr Francis resides with Ms Kemp) the West Midlands Probation Board is not bound to assume that Mr Francis will in that particular circumstance present minimal risk if released. The future views of the Parole Board as to whether Mr Francis' 'level of risk to the life and limb of others is considered to be more than minimal' is likely to be influenced by its assessment of the viability of any particular release plan."

9. I should explain the reference in paragraph (f) of the letter to the Multi-Agency Public Protection Panel. The respondent is one of three authorities charged by section 325 of the Criminal Justice Act 2003 with establishing Multi-Agency Public Protection Arrangements (often referred to as "MAPPA") in the West Midlands area for the purpose of assessing and managing the risk posed by violent offenders. The level of risk presented by an offender is regularly reviewed by a Multi-Agency Risk Assessment Panel (or "MARAP") made up of officers from the three responsible authorities. The reference in the letter is to a risk assessment carried out by the relevant MARAP.

The issues

10. The case advanced by Mr Southey on behalf of the appellant raises two main issues:

i) whether the respondent misdirected itself or otherwise erred in law by taking into account its own assessment of the risk presented by the appellant and of the viability of the proposed release plan, in circumstances where it was for the Parole Board to decide on release and any decision to authorise the appellant's release would be on the basis that he was assessed by the Parole Board as presenting minimal risk ("the misdirection issue"); and

ii) whether the refusal to authorise the transfer of the appellant's supervision was in breach of his and Ms Kemp's rights under article 8 of the European Convention on Human Rights, in particular because the decision was not "in accordance with the law" and/or was disproportionate and unnecessary ("the article 8 issue").

11. I should make clear that there is no challenge to the rationality of the respondent's assessment of the risk presented by the appellant. For that reason I have found it unnecessary to set out a body of evidence relating to the history and substance of the risk assessments carried out by the respondent itself and by the relevant MARAP.

The legislative and policy framework

12. Chapter 1 of Part 1 of the Criminal Justice and Court Services Act 2000 ("the 2000 Act") is headed "National Probation Service for England and Wales". Section 4 and Schedule 1 made provision for the setting up of a local probation board for each area of England and Wales. The respondent board and the Avon and Somerset Probation Board were set up pursuant to those provisions as local probation boards for their respective areas. By section 5 and a cross-reference within that section to section 1, the functions of the boards were to include the supervision and rehabilitation of offenders. Section 2 provided that in exercising their functions the boards were to have regard to the following aims: (a) the protection of the public, (b) the reduction of re-offending, (c) the proper punishment of offenders, (d) ensuring offenders' awareness of the effects of crime on the victims of crime and the public, and (e) the rehabilitation of offenders.
13. The material before the court contains very little information about the wider structure of the National Probation Service or the position of the local probation boards within that structure, but it is unnecessary to probe further since it is accepted that the relevant decision-making power in this case was vested in the local probation boards. I note that by Schedule 1 to the 2000 Act, each board was set up as a body corporate (paragraph 1) and without any material limitation on the powers that would normally be enjoyed by such a body. Indeed, a board is given ancillary powers, subject to directions by the Secretary of State, to "do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions" (paragraph 13).
14. New arrangements for the provision of probation services were introduced by Part 1 of the Offender Management Act 2007. Section 5 of that Act confers a power on the Secretary of State to establish probation trusts; and that power was exercised, as I understand it, to establish the trusts that have now replaced both the respondent board and the Avon and Somerset Probation Board. The changes made by the 2007 Act do not, however, have any material effect on the issues in this case and I can concentrate on the position as it existed at the time of the decision under challenge.
15. The transfer of responsibility for the supervision of an offender from one local probation board to another is not the subject of specific statutory provision. It is common ground that the boards have a wide discretion in the matter. In exercising that discretion they must have regard to the aims in section 2 of the 2000 Act. In addition, limited guidance concerning the exercise of the discretion is to be found in the National Probation Service's Circular PC25/2007, Case Transfers – Community Orders, Suspended Sentence Orders and Licences, which had an implementation date of 1 September 2007. That guidance applies for the most part to cases under the supervision of the probation service in the community, which is not this case. Paragraph 2.2.1 states that separate guidance is under development and is due to be issued in December 2007 in respect of "Pre Release Case Transfer arrangements", the category into which this case would fall; but we were told by counsel that no such guidance has ever been issued. Paragraph 2.2.1 also states, however, that the "key principles" set out in paragraph 1.1.1 apply in all cases, and Mr Southey accepted that those key principles therefore apply to this case, notwithstanding that the rest of the guidance has no application to it. Paragraph 1.1.1 states:

"The key principles governing the transfer of cases within and between probation Areas are as follows:

Public protection should be the overriding consideration in any decision to transfer a case or direct an offender to reside at another address.

At all times there should be absolute clarity about who the Offender Manager is and, therefore, who has responsibility for a case.

Case transfer arrangements must be subject to liaison and planning between the home and receiving offices/areas.

Any decision to transfer the case should take account of and be consistent with the objectives of the sentence plan."

16. An additional and very important constraint on the exercise of the discretionary power as to transfer is of course the applicability of the general principles of public law, in relation to which I need say no more than that the first ground on which the decision in this case is challenged draws on those principles in two ways, by contending that the respondent misdirected itself in law or that it took into account a legally irrelevant consideration.
17. The other relevant aspect of the legislative and policy framework concerns the functions of the Parole Board. The Parole Board has sole responsibility for deciding whether to direct the release of a life prisoner who has served his minimum term. It is unnecessary to set out the statutory provisions relevant to that point. As to the basis on which the Parole Board will reach its decision, directions given to the Parole Board by the Secretary of State in August 2004 under what is now section 239(6) of the Criminal Justice Act 2003 state:

"The test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined, is whether the lifer's level of risk to the life and limb of others is considered to be more than minimal."

That statement does not appear to be an operative direction: it is to be found in the introduction to the directions, at paragraph 4. But it reflects the approach in R v Parole Board, ex p. Watson [1996] 1 WLR 906, 916H, and it is not in dispute that the Parole Board will not direct release unless it is satisfied that the prisoner presents a minimal risk.

18. The other point to note about the Secretary of State's directions is that the Parole Board is directed by paragraph 7 (clearly an operative direction) that before directing release on life licence it shall consider, inter alia, "the content of the resettlement plan and the suitability of the release address". The importance of this is illustrated by the Parole Board's decision of June 2008 in the appellant's own case. One of the matters that the Parole Board took into account was that there was as yet no detailed, written release plan and no agreed release address, and it concluded that "there is as yet no risk management plan available that would be adequate to manage the risk you pose".

The misdirection issue

19. Mr Southey submitted that the respondent misdirected itself or took into account an irrelevant consideration in refusing the requested transfer by reference to its own assessment that there would be an unacceptable risk if the appellant were released to the Bristol area to reside with Ms Kemp. If the Parole Board decided to release the appellant, it would be on the basis that the appellant was assessed by the Parole Board as presenting minimal risk; and in reaching that assessment the Parole Board would have taken into account the proposed release plan and proposed residence with Ms Kemp. The respondent would be bound by the Parole Board's decision and was not entitled to act inconsistently with it. By taking into account its view that the appellant would present an unacceptable risk if released to the Bristol area, the respondent proceeded on a legally erroneous basis and usurped the function of the Parole Board. The respondent's error was revealed most clearly by paragraph (h) of the letter of 23 October 2008, quoted above: in that paragraph the respondent stated in terms that it was "not bound to assume" that the appellant would present minimal risk if released.
20. For the respondent, Mr Rumney accepted that it is for the Parole Board to decide on release and, as part of that decision-making process, to determine whether any particular release plan put forward is acceptable; and that if the Parole Board were to decide that the appellant should be released on the basis of the proposed release plan, the respondent would be bound faithfully to accept that determination and to do its best to achieve its successful implementation (see R v Parole Board, ex p. Robinson [1999] EWHC Admin 764 at para 34). He submitted, however, that in deciding whether to agree to the appellant's request for a transfer of his supervision to the Avon and Somerset Probation Board the respondent was entitled to consider the viability of the proposed release plan, and in considering that question it was not required to assume that implementation of the plan would be accompanied by minimal risk.
21. In my judgment, the respondent approached the transfer decision on a correct legal basis. It did not usurp the function of the Parole Board or act inconsistently with any decision the Parole Board might in due course make. It needed to make its own assessment of the viability of the proposed transfer plan in order to decide, in the exercise of its own discretionary power, whether to agree to the transfer request. In making that assessment, it acted in the proper performance of its statutory functions and with due regard to the statutory aims.
22. It is important to keep in mind that the respondent or its statutory predecessor had had responsibility for the appellant's supervision for 25 years or more. In those circumstances the respondent was plainly entitled to examine with some care whether there was good reason for transfer of the appellant's supervision to another board. The only reason given by the appellant was his relationship with Ms Kemp and his wish to put forward to the Parole Board a release plan under which he would reside with her after a period in a hostel in the Bristol area. In order to decide whether that was a good reason for transfer, the respondent had to form a view on the viability of the proposed release plan, which in turn required it to assess the risks involved in the appellant residing with Ms Kemp. If it reasonably considered the release plan to be unviable, it was entitled to take the view that the wish to put forward such a plan did not provide a good reason for transfer. In taking this approach, moreover, the respondent was exercising its functions with due regard to the statutory aims under section 2 of the 2000 Act, including the protection of the public, and to the key principles set out in Circular PC25/2007, including that public protection should be an overriding consideration.
23. Thus, I do not accept that the respondent was bound in law to assume for the purposes of its decision that the appellant would present minimal risk if he resided with Ms Kemp, in that he would not be released unless the Parole Board, after consideration of the proposed release plan, had concluded that he would present minimal risk. It had to form a view on the viability of the proposed release plan, which in turn required an assessment of the risks that would be involved in the appellant residing with Ms Kemp. It could not simply assume at this stage of the analysis that there would be minimal risk. Accordingly, I see no error in paragraph (h) of the letter of 23 October 2008 upon which Mr Southey placed particular weight.
24. Another way of expressing the point is that Mr Southey's argument looks at the position that would arise if and when the Parole Board directed the appellant's release on the basis of the proposed release plan. At that point the respondent, whatever its own views on the matter, would have to proceed on the basis that the appellant presented minimal risk when residing with Ms Kemp. The respondent, however, was addressing the different and logically prior question whether there was a realistic prospect of the Parole Board accepting the proposed release plan as a proper basis for release. It took the view that there was no such prospect, because the level of risk was such as to make the release plan unviable. It did not express itself in quite that way, but that seems to me to have been a key consideration underlying its reasoning. The point serves in any event to cast further light on the fallacy of Mr Southey's submission that the respondent was bound to approach the request for transfer on the basis that the appellant would present minimal risk if he resided with Ms Kemp.
25. It remains open to the appellant to put forward to the Parole Board a release plan involving residence in due course with Ms Kemp despite the fact that his supervision remains for the time being with the respondent. I accept that without a transfer of supervision to the Avon and Somerset Probation Board and some history of supervision by an officer from that board he could not expect to be released directly to the Bristol area. Any release would presumably have to be in the first instance to a hostel in the West Midlands area, though consideration could still be given to the acceptability of an onward move thereafter to the Bristol area. His real problem, however, lies not so much in the refusal of a transfer as in the substantive assessment of risk and the consequential view that the proposed release plan is unviable. At the last review the Parole Board, far from assessing him as ready for release, declined even to direct his transfer to open conditions; and irrespective of which probation board has responsibility for his supervision, the clear view of the probation service that the appellant's residence with Ms Kemp would involve unacceptable risk and that the proposed release plan is therefore unviable will be an important input into the Parole Board's future consideration of the case and is likely to weigh heavily against his release on the basis of such a release plan. But that is the result of the assessment of risk, which is not challenged, not of the refusal to transfer supervision.

The article 8 issue

26. The remaining grounds of appeal concern the right to respect for family life under article 8(1) ECHR. The appellant's case is that the relationship between the appellant and his fiancée, Ms Kemp, is sufficient to engage article 8 and that the respondent's refusal to request the transfer of the appellant's supervision to Avon and Somerset Probation Board is an unlawful interference with his and Ms Kemp's rights under article 8(1), in particular because (i) the decision is not in accordance with the law and (ii) it gives rise to a disproportionate and unnecessary interference with their rights.
27. For the proposition that article 8 is engaged, Mr Southey relied on the decision of the European Commission of Human Rights in McCotter v United Kingdom (Application No. 20479/92, decision of 1 September 1993), where it was said that "in the context of prisoners or other persons who are detained the concept of 'family life' must be given a wider scope than in other situations" and that "Article 8 … requires the State to assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate prisoners' social rehabilitation". He also relied on observations in R (Craven) v Secretary of State for the Home Department [2001] EWHC Admin 850 and R (Wilkinson) v Secretary of State for the Home Department [2002] EWHC 1212 (Admin).
28. Like Silber J below, I am prepared to assume, without deciding, that article 8 is engaged. It has to be said, however, that the refusal of a transfer interferes only to a very limited extent with any rights under article 8(1). As indicated above, the real obstacle to the appellant and Ms Kemp residing together is not the refusal to transfer supervision but the probation service's assessment of risk and of the unviability of the proposed release plan.
29. Article 8(2) provides that there shall be no interference with the exercise of rights under article 8(1) "except such as in accordance with the law and is necessary in a democratic society in the interests of … public safety …, for the prevention of disorder or crime … or for the protection of the rights and freedoms of others". The burden is on the respondent to demonstrate that any interference with the exercise of rights under article 8(1) meets the conditions in article 8(2) and is therefore justified.
30. As to the requirement that the interference be "in accordance with the law", Mr Southey referred us to a passage in the judgment of the European Court of Human Rights in CG and Others v Bulgaria (Application no. 1365/07, 24 April 2008), at para 39, which encapsulates the relevant principles:

"The Court has consistently held that [this requirement] does not merely dictate that the interference should have a basis in domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. The phrase thus implies that domestic law must be accessible and foreseeable, in the sense of being sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention. The law must moreover afford a degree of protection against arbitrary interference by the authorities. In matters affecting fundamental rights it would be contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, so as to give the individual adequate protection against arbitrary interference …."

31. Mr Southey submitted that in the absence of a policy specifying the circumstances in which the transfer of supervision of a pre-release prisoner is appropriate (i.e. the equivalent, for pre-release cases, of Circular PC25/2007 relating to the transfer of cases under the supervision of the probation service in the community), the law governing the exercise of the discretion to transfer is not sufficiently precise. Without such a policy, the appellant is unable to regulate his conduct to enable him to obtain approval for a transfer, and there is a significant risk that a transfer will be refused in an arbitrary manner.
32. It is true that local probation boards enjoy a broad discretion in relation to the transfer of supervision, but I do not accept that an exercise of the power which is lawful as a matter of domestic law is nevertheless not "in accordance with the law" within the meaning of article 8(2). In relation to all their functions, including the exercise of this discretion, the boards are required by statute to have regard to the aims in section 2 of the 2000 Act. There is no detailed policy on the transfer of pre-release prisoners, and further guidance would no doubt be helpful, but important guidance does already exist in the form of the key principles in Circular PC25/2007. The exercise of the discretion is also constrained, as I have said, by the general (and well established) principles of public law. Looking at the position overall, I am satisfied that the domestic law governing the exercise of the discretion is both accessible and sufficiently clear and precise, and that the discretion is neither unfettered nor such as to give rise to the risk of arbitrary interference with rights under article 8(1). In my view, the decision under challenge was plainly "in accordance with the law" within the meaning of article 8(2).
33. The final issue is that of proportionality. Mr Southey submitted that the role of the Parole Board provides a sufficient safeguard to meet the legitimate aim of protection of the public, since the appellant will not be released unless and until the Parole Board assesses him to pose a minimal risk. The respondent's refusal to transfer his supervision is therefore unnecessary for the protection of Ms Kemp. Moreover, as recognised in McCotter (see above), it is important to assist prisoners to develop ties with people outside prison in order to facilitate their social rehabilitation. It follows, argued Mr Southey, that the transfer decision interferes disproportionately with the article 8 rights of the appellant and Ms Kemp.
34. I have mentioned already the very limited extent to which the refusal of transfer interferes with any article 8 rights in this case. The need for supervision by the probation service is not questioned. The respondent had been responsible for the appellant's supervision for many years and was entitled to consider whether there was good reason for the transfer of supervision to another probation board. It concluded, on lawful grounds, that the reason put forward by the appellant was not a good one. In those circumstances, as it seems to me, the refusal of a transfer cannot possibly be regarded as a disproportionate interference with any rights of the appellant and Ms Kemp under article 8(1).
35. Although the respondent's conclusion as to the absence of a good reason for transfer was based on an assessment of risk and of the unviability of the proposed release plan, I do not accept that the role of the Parole Board in safeguarding the public against risk has any bearing on the proportionality of the respondent's decision. The Parole Board will be responsible for deciding on the appellant's release; but the decision here was not a decision about release. It was a decision about which of two local probation boards was to exercise, in relation to the appellant, the relevant functions of the probation service within the overall scheme relating to the management of life prisoners. To the extent that the decision interfered with any rights under article 8(1), it was not rendered unnecessary or disproportionate by the role of the Parole Board in relation to the question of release.

Conclusion

36. For those reasons, I take the view that Silber J was right to refuse the application for judicial review and I would dismiss the appeal.

Lord Justice Aikens :

37. I agree.

Lord Justice Mummery :

38. I also agree.