ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Cranston
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE PATTEN
| The Queen (on the application of Hassan Tabbakh)
|- and -
(1) The Staffordshire and West Midlands Probation Trust
(2) The Secretary of State for Justice
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James Strachan QC (instructed by The Treasury Solicitor) for the Second Respondent
The First Respondent did not appear on the appeal
Crown Copyright ©
Lord Justice Richards :
The factual history
The policy framework
"12.16 Offenders and their carers or partners should not become distracted from the process of assessing and managing the risks they present. It is good practice for offenders to know that they are being managed through MAPPA, what MAPPA is, and what this means for them. The MAPPA leaflet Information for Offenders should be used for this purpose. This responsibility should be discharged by the Offender Manager or Case Manager primarily involved with the offender.
12.17 It may be helpful to invite the offender to write down, or pass on, information for discussion at a level 2 or level 3 meeting, if he or she is aware of being managed at that level.
12.18 There are some cases where information about MAPPA should be withheld from the offender on the ground that it may increase his or her risk …."
"The offender should, however, be allowed the opportunity to present written information to the MAPP meeting through their offender/case manager or for this person to provide information on their behalf."
It then stated that it was good practice for offenders to know that they are being managed through MAPPA, what MAPPA is and what this means for them, and who should discharge this responsibility. It continued:
"Engaging the offender in the reality of risk management can be very productive, although it will not be appropriate for every offender. Offenders should not only be seen as part of the problem as they can be a very important part of the solution in protecting the public. The RA [responsible authority] should ensure that there is a clearly stated mechanism for informing offenders, both before and after MAPP meetings, and that the information shared is fully recorded in minutes and case records."
The appellant's complaint
"64. As a matter of principle it seems to me that the procedural rights contained in Article 8 can be engaged in fixing an offender's licence conditions. What is required is an assessment of their nature and practical effect in each case. The requisite procedural rights are the very basic the law requires so that the offender is able to make meaningful representations. As Ms Kaufmann QC for the claimant conceded there is no need for the claimant's presence or for oral representations, and there is no requirement for licence conditions to be fixed by an independent body such as the Parole Board. As well, in accordance with principle, the offender's procedural rights must give way in certain circumstances such as urgency. Moreover, the impact which representations can be expected to have will be limited in an area such as this where the assessment of risks is … quintessentially one of judgment. Where offenders are considered to pose a significant risk of serious harm to the public, those convicted of terrorist offences being a paradigm case, the restrictions liable to be imposed on them on licence will likely be very severe indeed, including most if not all the available conditions, and applied very strictly.
65. … In my view with standard conditions the assessment of necessity and proportionality has been struck by Parliament for all relevant offenders. By contrast additional conditions require an individualised exercise of judgment, where issues of procedural fairness arise. … [A submission on behalf of the Secretary of State that the MAPPA panel is not the decision maker, to which article 8 procedural requirements apply] in my view overlooks the reality of the system, that recommendations originate from MAPPA meetings, with the offender manager as a participant, the offender manager then making recommendations to the prison governor, who is unlikely to go behind the assessment of the MAPPA panel.
66. So Article 8 conferred on this claimant the basic procedural right to make meaningful representations about the additional conditions in his licence …."
"66. … Here the claimant's concerns were on the table at the MAPPA meetings. The offender manager, with overall responsibility for overseeing the claimant's sentence, attended these meetings and fed in the claimant's perspective. The claimant's self harming and his threats of suicide were well known during his time in prison and a feature of discussions at the MAPPA meetings. It was also known that his self harming was superficial and that it and the suicide threats could be used if the offender did not get his own way.
67. The MAPPA panel knew well in advance of the claimant's release of his desire to be treated by Dr Korzinski at the Foundation and the implications for that of his living in London. The Foundation had no accommodation and there was considerable delay in its replies to questions raised by the authorities …. Dr Shapero, who attended three panel meetings, had made clear to the MAPPA meeting a month before the claimant's release that the claimant would be unhappy with the electronic tag. At the latest the claimant himself knew of the electronic tag a week before the release (on the Secretary of State's case, almost three weeks before his release). Admittedly [his solicitor's] letter was written a day before his release, and therefore after the prison governor had approved the additional conditions. She said that the electronic tag would affect the claimant's mental health, albeit quoting Dr Korzinski's more general point that the electronic tag would interfere with the therapeutic process.
68. It is not in the least surprising that in the preparation for his release, whatever objections the claimant raised relevant to the additional conditions they would be substantially discounted. The reality was that this claimant had committed terrorist offences. He refused to engage in rehabilitative work in prison. Nor would he accept responsibility for his offending. His OASys assessments, which had been given to him, were that he posed a high risk of harm in the community. Obviously he would be subject to the most stringent additional conditions in his licence. With this as background, and the security problems in the hostel where he would live, the electronic tag was in my view an obviously proportionate response.
68. The imposition of conditions was not set in stone. The MAPPA process was a continuing process, beginning well before his release and involving some sixteen meetings over a twenty-one month period …."
The test for determining whether the risk of an unlawful outcome renders a policy unlawful
"6. … A more appropriate question, in our view, is the one posed by Mr Robin Tam for the Home Office: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham's alternative approach of seeking to construct a 'typical' case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry … at unacceptable risk of being processed unfairly. This, therefore, is the question we propose to address.
7. We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects. That is why the intrinsic fairness of the fast track system at Oakington was dealt with by this court as discrete issue in R (L) v Secretary of State for the Home Department …."
"25. We have recognised this risk and indicated what in our view needs to be done to obviate it. But, like Collins J, we do not consider that the system itself is inherently unfair and therefore unlawful. On the contrary, so long as it operates flexibly – as the Home Office accepts it should – the system can operate without an unacceptable risk of unfairness …." (original emphasis).
"25. The judge set out the relevant passages from the Refugee Legal Centre case in paragraph 33 of his judgment. Having done so, the judge said at the end of that paragraph:
'I will apply that approach, which is not disputed by either party.'
26. Having said that he was going to apply that approach, it would be surprising if he had failed to do so. In my judgment he did not fail to do so. I have referred to the judge's conclusion in paragraph 172 of the judgment that:
'There is a very high risk if not an inevitability that the right to access to justice is being and will be infringed.'
27. The judge examined the evidence in great detail and it is significant that there is no challenge to his factual conclusions as to why a period of less than 72 hours was inadequate. Given those factual conclusions, it is perhaps unsurprising that the judge also concluded that there was a very high risk of injustice which was inherent in the system of removing certain classes of persons on less than 72 hours' notice.
28. Having identified the risk, for the reasons set out earlier in the judgment, the judge considered whether the Section 3 policy contained 'clear safeguards' which obviated 'any substantial risk [or] a real possibility of interference with the right of access to justice of those who receive abridged notice under the 210 exceptions' …."
The test applied by the judge
"51. My conclusion is that what I have termed the wider test – a policy giving rise to an unacceptable risk of unlawful decision-making – should be avoided. It did not have the support of the Court of Appeal in Medical Justice. Wyn Williams J's decision in Suppiah was overtaken by the Court of Appeal decision in that case. Foskett J's decision in MK is firmly based on Munjaz. What the authorities demand is that the policy must lead to unlawful action, or that there be a very high risk or an inevitability of that occurring (Gillick; the Court of Appeal in Medical Justice). To put it another way there must be a proven risk of unlawfulness, going beyond the aberrant and inhering in the system itself (Refugee Law Centre). In Article 3 cases there need only be a significant risk of unlawfulness flowing from the policy (Munjaz). The lower threshold where a policy raises Article 3 issues is justified because of the unqualified nature of the right that article 3 confers.
52. In my view these high thresholds are justified, first, for evidential reasons. Policies can have disparate impacts in practice and the overall impact will be difficult to gauge. These evidential difficulties may be more acute where challenges are brought to policies by NGOs and particular claimants are not involved. It is likely that Sedley LJ had evidential problems in mind when he referred in Refugee Law Centre to a proven risk of unfairness, which went beyond the aberrant but was inherent in the system. A risk inherent in the system will be more obvious than an unacceptable risk, or even a serious possibility of unlawfulness. Secondly, there are institutional and constitutional limits to what the courts should determine. The executive is in daily touch with areas of administration; the courts will not have the same expertise to calculate how policies play out in practice and what their overall likely impact is. But the courts should adopt a high threshold for a more fundamental reason. Policy making and implementation is an imperfect business. Sometimes there will be a strong imperative to adopt a particular approach. Governments will not consciously adopt a policy they know leads to unlawfulness. For a court to strike down a policy because the risk of unlawfulness is 'unacceptable' risks, in my view, going over the line. Especially with social and economic policies it has long been recognised that government is entitled to a wide margin of appreciation. The high thresholds I have identified in the case law recognise this."
The lawfulness of the policies in this case
"73. As I read the policy it is premised on the offender manager being the conduit for the offender's concerns to MAPPA meetings. The discussions in MAPPA begin, under the policy, at least six months prior to release with offenders like the claimant. Section 4.8 of the MAPPA 2009 Guidance provided expressly for an offender to present information to MAPPA meetings through their offender manager and that it was good practice that offenders knew of MAPPA and were engaged with the process. Paragraph 12.16 of the current MAPPA guidance is along the same lines. As well the current 'offender manager model' requires the active collaboration of offenders in planning for their sentence. There is no policy of refusing to disclose MAPPA minutes; under chapter 13 of the current MAPPA Guidance an offender can request disclosure. An offender is aware of the key factors bearing on risk since he is aware of his offending, of his engagement with rehabilitative programmes in prison and of his OASys assessments. Many offenders will retain contact with the solicitors who represented them in the criminal proceedings. As in the claimant's case, they will be able to make relevant representations. Paragraph 2.40 of PI 07/2011 made clear that before release the offender was to have the additional conditions explained. In my view all of this is miles away from the high threshold explained earlier in the judgment which would render the policy on additional licence conditions unlawful because of the risk of breach of Article 8 procedural rights."
Lord Justice Aikens :
Lord Justice Patten :