QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF A||(CLAIMANT)|
|NATIONAL PROBATION SERVICE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR NICHOLAS O'BRIEN (instructed by Cheshire County Council) appeared on behalf of the DEFENDANT.
Crown Copyright ©
Tuesday, 18th November 2003
"The offence was specifically linked to the long-term relationship with his wife and of A's low risk in terms of reoffending. He will, of course, require stringent monitoring on release for some time to come, but he would ... respond positively to supervision on licence."
"While it is clear from most of the reports that A does have entrenched attitudes and has little insight into the index offence, there appears to be little to indicate much risk of his reoffending. Indeed, provided that he is monitored closely were he to enter into another relationship, it seems to the Panel that any risk he poses to the public as a whole is very low."
The panel believed that it would be inappropriate for A to live with his sister, as had been suggested at one time. It noted A's hope to live in sheltered accommodation, and recommended release on life licence, subject to the condition that he should reside where he was directed and that he should not contact his son. It is common ground that the direction to residence is to be given by the Probation Service. The Secretary of State accepted the recommendation of the Parole Board.
"Oasys scores ... indicate a low risk of reoffending. It is recognised however that if he does reoffend there will be extremely serious consequences for victims and this is assessed in the section on risk of harm."
The report states that the fact that A has always believed he was not thinking rationally when the offence occurred and that a plea of diminished responsibility should have been accepted meant that he has not sufficiently addressed his offending behaviour during his sentence.
"The fact that he has not sufficiently addressed his offending behaviour in custody means that there will continue to be concerns however, and his level of risk has been assessed as medium."
The assessment states that controlling behaviour and difficulties in expressing negative emotions is a theme in reports from various professionals, and it is these aspects of his behaviour which could result in violence in a relationship in the future, particularly if A was experiencing a deterioration in physical mental health and coping strategies. It is stated that it is clear that A will need to be subject to a careful risk management plan when he is released.
"Future relationships with women are of particular concern and although there is no system in place for vetting prospective apartment owners, it was obvious when we visited the premises that the sales consultant was anxious to obtain information about A's past and they have clearly have a duty to consider the well being of other residents."
Her conclusion was that, although the accommodation is suitable, this would be on the condition that the manager was made aware of A's offence. Reassurance would be provided about A's situation, the low likelihood of his reoffending and the fact that he would be closely monitored and supported by the probation service and any other relevant agencies. The assessment also states that if information is not initially shared but found out at a later date, there could be serious implications for all concerned, including A himself. His integrity would be placed in question if he was later found to have been untruthful, as would that of the Probation Service.
"A further report has been requested by the Parole Board prior to release in which I will be expected to demonstrate I have carefully assessed the release plans and have put into place public protection considerations such as licence conditions. Guidance on public protection issues is found in the Lifer Manual a policy document issued by the Prison Service Management Board. One issue that needs to be taken into account is that of 'advising certain third parties of the nature of the offence and implications of the supervision process including relevant licence conditions'. A presumption in favour of disclosure applies to each of the following persons:
(i) partners of licencees
(ii) employers (voluntary or otherwise)
(iii) accommodation suppliers/providers."
She continues that A will be closely supervised on release, required to report to a probation officer, on a weekly basis initially, and that the level of contact will not fall below fortnightly for the first two years.
"It is recognised that the fact that the National Probation Service will mainly work with A in an office setting means that our ability to monitor risk concerns such as future relationships, are limited. It is my view, and the view of a number of other report writers, that if A were to develop relationships, particularly with the elderly and vulnerable, then this would have to be closely monitored to manage his risk in the community. A failure to do this properly and the resulting implications for further offending on A's part would be extremely serious. Disclosure to a member of staff at a retirement complex would be a necessary safeguard and an essential means of managing risk. During my work with lifers and other offenders I have liaised with hostel and other housing staff. I have felt this to be good practice and beneficial to all concerned. It is not my experience that proper and sensitive disclosure results in social isolation of the offender in the community. In fact I would say that the opposite is the case."
"... where in general circumstances the medium but significant risk can generally be managed by a single agency and therefore be level one."
Her experience is that relevant information is often shared by the case management and other relevant agencies without the need for formal inter-agency meetings. She states that relevant information about other lifers she has supervised in the community has been shared with local authority housing departments or hostel managers, with the offenders' cooperation and consent, on a level one basis. A's position is different because he wishes to purchase private accommodation and his accommodation providers will not be a public body. The MAPPA guidance indicates that disclosure two a third party who is not a MAPPA agency should be exercised with caution and seen as an exceptional measure (see paragraphs 93 and 94 of the guidance).
"The fact that [A] has committed a murder and intends to place himself in a situation where he could form relationships with older and possibly vulnerable women, and is reluctant for housing providers to be informed of his offence, means that the case can no longer be managed at level one. The risk management and disclosure issues require his case to be considered by a multi-agency meeting at level 2."
"... disclosure was an essential part of the risk management plan given that the house manager has a responsibility for the residents and further a less intrusive form of monitoring the situation was not possible. The rights of the offender were taken into account in respect of the nature of the disclosure. It was agreed that only the limited information relevant to the identified risk factor would be shared with the member of staff who needed to have the information. The importance of confidentiality was emphasised, but the limited disclosure proposed was felt to be vital to identify any deterioration or change in circumstances that would require a reassessment and an intervention to protect the public."
The Legal Framework
"(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies."
Section 28 is irrelevant in the present case.
"(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under [this Part or Chapter II]; and in giving any such directions the Secretary of State shall in particular have regard to
(a) the need to protect the public from serious harm from offenders; and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
The reference in section 32 to Chapter II is to Chapter II of the 1997 Act, which includes section 29(1).
"2. The Parole Board's responsibilities in the release consideration are whether, having regard to the degree of risk involved of the lifer committing further imprisonable offences after release, it remains necessary for the protection of the public for the lifer to be confined.
4. Before recommending release, the Parole Board should consider whether:
(a) the lifer has shown by his performance in prison that he has made positive efforts to address his attitudes and behavioural problems and the extent to which progress has been made in doing so such that the risk that he will commit further imprisonable offences after release is minimal;
(b) the lifer is likely to comply with the conditions of the life licence and the requirements of supervision."
These directions are now found in the light of the decision in Stafford v United Kingdom  35 EHRR 32, which means that to be Convention compliant the Parole Board is restricted to considering whether there is a risk of serious violent offences.
"(1) In this section-
'relevant sexual or violent offender' has the meaning given by section 68, and
'responsible authority', in relation to any area, means the chief officer of police and the local probation board for that area acting jointly.
(2) The responsible authority for each area must establish arrangements for the purpose of assessing and managing the risks posed in that area by-
(a) relevant ... violent offenders
(3) The responsible authority for each area must keep the arrangements established by it under review with a view to monitoring their effectiveness and making any changes to them that appear necessary or expedient.
(6) The Secretary of State may issue guidance to responsible authorities on the discharge of the functions conferred by this section."
Grounds of Challenge
"Where a statutory body has determined an issue of fact, it may be irrational for a decision-maker to disagree with that conclusion". (Emphasis added)
Where, however, the second decision-maker has to reach its own independent decision, his Lordship recognised that the finding and recommendation of the first decision-maker "may assist him to fulfil his obligation but cannot dilute it or impede its fulfilment or obviate the need to be exercised by him of the need for a formal judgment".
"(1) There is a general presumption that details of previous convictions should not be disclosed, such a presumption being based on a recognition of (a) the potentially serious effect on the ability of the convicted people to live a normal life; (b) the risk of violence to such people; and (c) the risk that disclosure might drive them underground."
An appeal to the Court of Appeal was dismissed. Lord Woolf MR held that "disclosure should only be made when there is a pressing need for that disclosure".
"Where human rights are at stake, as is agreed to be the position here, the court's task is no longer merely supervisory and confined to applying the Wednesbury test."
The fact that the court's task is no longer confined to applying the Wednesbury test does not, however, mean that this court is a Court of Appeal on the merits. The defendant's decision is reviewable upon public law grounds, albeit the scope of review, where human rights are at stake, is significantly wider.
"This requires, not only the domestic legal justification supplied by the principles discussed earlier ,.. but more importantly the character and transparency and predictability required by the Convention concept of legality. This is supplied by the Code of Practice. The Code is the mechanism, not for defining what Article 8 was or requires, but for ensuring that any interference with Article 8 rights is 'in accordance with the law', a necessary ingredient in finding that it is justified under Article 8(2)."
Conclusions on proportionality
"A presumption in favour of disclosure applies to accommodation suppliers."
This presumption informed the decision in the risk assessment. Mr O'Brien in his submission relies on the fact that it is recognised that housing providers should generally be involved. That submission is consistent with a presumption to disclose. The risk assessment, moreover, did not address A's rights, nor explicitly balance the need for disclosure with the potential harm that A anticipates will result from it. It appears from A's probation officer's second statement that A's rights were taken into account at the meeting on 29th October. However, it does not appear that meeting considered the matter afresh. It considered the risk assessment report and its conclusion that a condition of approving the accommodation as suitable would be that the manager was made aware of A's offence.