England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30th August 2007

1. MR JUSTICE SULLIVAN: This is an application for judicial review of a decision by the defendant to refuse the claimant's application for permission to travel abroad. The decision is contained in a decision letter dated 16th May 2006. It is the second decision in respect of an application by the claimant for permission to travel abroad.
2. It is unnecessary to rehearse the extensive history. It is sufficient for present purposes to say that the earlier decision was challenged by way of an application for judicial review. In due course those proceedings were compromised on the basis that a further decision would be taken by the defendant. That new decision was taken in the letter of 16th May 2006, which applied a new policy on temporary travel abroad whilst on licence. The new policy is set out in Probation Circular 4/2006. The essential aspect of the policy is that:

"The period of post-release supervision on licence forms an integral part of the sentence imposed by the court. To ensure that offenders remain subject to such supervision, temporary travel outside the UK and Islands should only be permitted in exceptional circumstances." [emphasis as in original]

The policy makes it clear that although requests for temporary travel abroad in exceptional circumstances for the purposes of business, recreation or holiday may now be considered:

"... these must be considered on their individual merits, not interfere with the sentence plan or increase any risk of re-offending or risk of serious harm, and should contribute positively to the rehabilitation/resettlement of the offender."

3. The decision is taken by an officer of at least Assistant Chief Officer grade. In this case Assistant Chief Officer Sandhu concluded:

"In the light of my consideration of the issues set out above, I do not consider that exceptional circumstances have been established in this case so as to justify consent being given to Mr Mehmet travelling abroad for the purposes requested. On that basis I have decided not to grant permission for Mr Mehmet to travel abroad."

4. The decision is challenged by Mr Southey on behalf of the claimant on three grounds: firstly, a conventional Wednesbury irrationality challenge; secondly, it is submitted that the refusal to allow the claimant permission to travel infringes his rights under Article 8 of the ECHR; and, lastly, it is submitted that there was unfairness in the procedure that was adopted when reaching the decision.
5. By way of very brief background, the claimant was sentenced at the Central Criminal Court in 1983 to a term of 18 years' imprisonment for offences of armed robbery and possession of a firearm. He escaped from prison in 1987 and remained unlawfully at large for some six years. It seems that for a substantial part of that time he lived in Cyprus. Whilst he was unlawfully at large, and shortly after he came back to the United Kingdom, he committed further serious offences, including robbery, actual bodily harm and perverting the course of justice. This led to him being sentenced at Preston Crown Court to a further term of nine years' imprisonment; those sentences being ordered to run consecutively with his earlier 18 year sentence. Thus his total sentence was 27 years. That sentence expires in 2016.
6. In August 2003 he was released on licence and, unless revoked, the licence will run until 15th April 2008. The licence contains the standard condition that he must not travel outside the United Kingdom without the prior approval of his supervising officer, which will be given in exceptional circumstances only. The licence requires the claimant to keep in touch with his supervising officer. Currently he is required to report on a monthly basis.
7. The claimant's sister runs a travel service, and in 2004 asked permission for the claimant, as part of his employment with her travel company, to travel to Cyprus for the purposes of the business. That application was refused and judicial review proceedings were compromised, as I have said, on the basis that a further decision would be taken. Prior to the taking of the decision, the Treasury Solicitor wrote a letter dated 9th September 2005 to the claimant's solicitors, setting out the material that would be considered by the Assistant Chief Probation Officer when reaching a further decision. Included among that material was:

"I advise that the ACO intends to speak to your client's probation officer to obtain recent relevant information, and this will be forwarded to you."

8. It is convenient at this stage to deal with the unfairness challenge. What happened was that the ACO did contact the supervising probation officer, Mr Mullindwa, and there was a short e-mail in response which said:

"Mr Mehmet continues to attend once every 4 weeks as required; despite ill health (diabetic) and his recent bereavement he has continued to engage in supervision sessions and has not appeared before the court since release ... His level of risk is assessed as low-medium. Mr Mehmet has to date been unemployed despite efforts to find work. I understand his job offer with the travel company remains open as long as Mr Mehmet is granted authority to travel abroad which is an essential requirement of the job. His request is to travel to Cyprus in the short term as part of the company's business. Given his overall progress and the reasons for Mr Mehmet's application, I would recommend permission be given."

That e-mail was not disclosed until after permission had been granted to apply for judicial review in these proceedings. Thus it is said that there was a failure to do what had been promised in the Treasury Solicitor's letter, namely to forward the information obtained from the probation officer to the claimant's solicitors for comment.

9. While that was an unfortunate lapse, it is perhaps understandable because the decision was taken some time later and against the background of the new policy. The question is whether it resulted in any unfairness. Whether or not there is unfairness will be very much dependent on the facts of the particular case, and certainly if there had been information from the supervising probation officer, for example, that opposed the grant of the request and made comments which were adverse to the claimant's claim which the claimant's solicitors did not have the opportunity to answer, then there might well have been a case for saying that there had been unfairness. In fact, as can be seen, all that the supervising probation officer did was to support the application. The fact that the supervising officer was supporting the application was well known to the claimant's solicitors, and indeed it was a point they had made themselves in a letter of 3rd October 2005, which said, among other things:

"On the facts of this case, the application for permission to travel abroad for business purposes is strongly supported by our client's supervising probation officer. The support for this application is based on his understanding of our client's risk factors and his knowledge of the difficulties Mr Mehmet faces in obtaining employment."

10. The decision letter dated 16th May 2006 makes it clear that, amongst a number of other matters, the ACO had regard to the representations made in that letter of 3rd October 2005.
11. In the circumstances it is plain that there was in fact no unfairness in this case, although Mr Southey sought to submit that had the solicitors realised that the supervising probation officer had given as limited an amount of information as he did, they would have said that more material should have been obtained. That would in effect amount to a submission that material considerations had not been taken into account. This is a decision letter which considers quite a considerable range of material, and it cannot sensibly be said, in my judgment, that there was a failure to take account of material considerations in this case.
12. Having set out the text of the supervising probation officer's e-mail, it is helpful to dispose of the Article 8 point. The question is whether, on the facts of this case, Article 8 is engaged at all. Clearly if it was engaged, then one would have to consider whether the degree of interference was proportionate and whether it was justified under Article 8.2, but the prior question is whether Article 8 is engaged.
13. I am happy to accept Mr Southey's submission that there can indeed be cases where restrictions upon someone's ability to take up employment can be so extensive that they do engage Article 8: see the case of Sidabras v Lithuania [2006] 42 EHRR 6. That was a case where former KGB officials were dismissed from their posts after Lithuania obtained independence and prevented from applying for public sector and various private sector posts until 2009. The restriction in that case is very far removed from the restriction in the present case, which is not a restriction on the taking up of employment, it is a restriction on someone travelling abroad. Although Mr Southey submits that as a consequence of that the claimant is unable to obtain any employment, I do not accept that that bald proposition is properly established on the evidence, nor is there any satisfactory evidence of the impact of the restriction on the claimant's private or family life. The highest it can be put is that, no doubt on the basis of the information supplied by the claimant, the supervising probation officer says that the claimant has been unemployed despite efforts to find work. What those efforts were, what work was sought, I simply do not know, but I am not prepared to assume that, simply because the claimant has been prevented from travelling abroad, he is therefore unable to find any work whatsoever. I accept of course that due to his age and his ill health, he is a diabetic, and the fact that he has a very serious prison record, he will undoubtedly find difficulties in obtaining employment, but he is in receipt of sickness benefit, rather than long term incapacity benefit. That suggests that physically he would not be unable to work, and in all the circumstances it cannot simply be asserted that as a consequence of this restriction he is quite unable to find any work at all.
14. Although Mr Southey referred to the decision in McCotter, which indicates that in respect of Article 8 the State should assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate prisoners' social rehabilitation, that is an objective which in broad terms is achieved by release on licence under supervision, and it cannot be said that a refusal of permission to travel abroad of itself engages Article 8.
15. I pass then to the real meat of the challenge, which is, in truth, a straightforward Wednesbury irrationality challenge. Although Mr Southey submitted, with varying degrees of force, that certain matters had been taken into account which were not relevant, at the end of the day, as I understood it, the submission was that two matters that were irrelevant were taken into account. The first matter was that the ACO said in the decision letter: "I note it has not been shown why you cannot perform some part of this job in the UK, without travelling to Cyprus". It is said that that was not the relevant question; the question was whether or not his employer was prepared to allow him to perform some part of his job in the United Kingdom.
16. In my judgment, that ignores the reality of the matter. This is a case where the claimant was wishing to work for his sister in his sister's travel business. There was indeed no explanation as to why the sister was not prepared to allow him to help simply in the United Kingdom or why that was not a possibility. It cannot possibly be said that that was an irrelevant consideration for someone to consider in the decision letter. It was plainly a question that required a properly evidenced response as to why it was not possible for the claimant to be of some assistance at least to his sister whilst remaining in the UK and not travelling abroad.
17. The second matter, as I understood it, that was submitted was an irrelevant consideration was the statement in the decision letter:

"His request to travel to Cyprus in the short term as part of the company's business is said also to require the making of short visits. As such, there are concerns that this could impact on his ability to comply with his licence, and we will not be able to monitor him abroad effectively, which is a cause for concern given his offence and previous absconding".

The submission was, as I understood it, that since the claimant had been released on the basis that he was a low risk of re-offending and had properly complied with his licence conditions, there was no reason why, even though he was making short visits, appropriate arrangements should not have been made to enable him to carry on complying with the licence conditions, which in his case are not unduly onerous, since they simply require monthly reporting.

18. Again, in my judgment it cannot be said that the fact that what permission was being sought for was the making of short visits, rather than, for example, a particular visit for a particular purpose between specific dates, could be said to be an irrelevant consideration. It is plain that the ACO was concerned about practicalities: about precisely how the supervising officer would be notified if there were to be short visits - was it going to be in advance or after the visits, and so on and so forth. The weight to be given to that consideration was a matter for the ACO, but it was a relevant feature of this particular application for permission to travel abroad that what was being asked for was not a visit, but effectively permission to carry out a number of visits as and when required by the business, albeit that some mechanism would have to be found for informing the supervising officer when a visit was due to be made.
19. In my judgment, therefore, it cannot be said that there was a taking into account of any irrelevant material in this decision letter. It is accepted that the relevant policy was considered, that is plain on the face of the letter, and it is further accepted that the policy was a lawful policy. It follows that the threshold for a Wednesbury rationality challenge is in this case very high indeed, because the claimant has to establish that no rational Assistant Chief Probation Officer could have come to the conclusion that the circumstances here were not exceptional. As I say, the policy, which is accepted to be a lawful policy, requires the applicant for permission to travel abroad to demonstrate that there is something exceptional about his or her case. A decision as to whether or not exceptional circumstances have been demonstrated is pre-eminently a matter of judgment for the decision taker.
20. If one considers this letter as a whole, it cannot possibly be said that this was an irrational decision. I appreciate that the claimant may disagree with the decision, it may even be possible to say that a different ACO might have taken a different decision, but that is very far indeed from saying that this decision was an irrational decision. As I have said, I do not accept the submission that there was any taking account of irrelevant material. The letter is comprehensive and thorough and there is no failure to take account of any material factor. Clearly the claimant would disagree as to the weight that was given to certain factors, for example his offending history, but that is not to say that they could not or should not have been taken into account.
21. It is sufficient, in my judgment, to read the last two paragraphs of the letter in order to dispose of any suggestion that it could be said to have been an irrational decision:

"Finally, I have considered whether travelling overseas would increase any risk of re-offending or risk of serious harm. Mr Mehmet received an 18-year sentence for Armed Robbery and Possession of Firearm. After escaping from prison and remaining at large for six years, he re-offended and later received a total consecutive sentence of nine years for Robbery and Attempted Robbery. Since his release on licence in April 2003, indications from his supervising officer are that he is medium to low risk of re-offending and risk to the public and he has not appeared before the courts since his release on 8 March 2003. However, Mr Mehmet's past offending and his period of abscondment are of a serious nature and good behaviour following a period of three years on licence in the community is insufficient to extinguish entirely significant concerns about Mr Mehmet's possible future behaviour. It is for this reason that he remains subject to supervision in the community by the probation service. This, taken together with the need to ensure that the public is not put at risk of harm in circumstances in which Mr Mehmet will not be supervised, ensures that only in truly exceptional circumstances will permission be given to Mr Mehmet travelling abroad.

His supervising officer and I accept that this employment could contribute positively to his rehabilitation, as he has been seeking employment for some time, without success. Although Mr Mehmet may be able to establish that he needs to travel in order to give him the opportunity to take up this particular employment, I do not consider that the need for him to pursue this employment is of such overriding importance at this time that it should take priority over the other statutory aims of supervision, in particular that of the need to protect the public. Consequently, I do not consider that there are exceptional circumstances present in this case so as to justify the giving of Mr Mehmet permission to travel abroad while he remains on licence."

22. That is a classic balancing exercise. It cannot, in my judgment, be said that the balance struck by the ACO in this case was irrational. The claimant is perfectly entitled to disagree with the way the balance was struck, but that does not demonstrate that this decision was unlawful.
23. For these reasons, this application for judicial review must be refused.
24. MR SOUTHEY: The only application I have is for assessment of the Community Legal Service Funding.
25. MR PATEL: I am content with that. So the order should read claim for judicial review to be dismissed. No order for costs save detailed assessment of the claimant's legally aided costs.
26. MR JUSTICE SULLIVAN: Certainly, thank you.