England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/12/2009

Mr. Justice Bean :

1. George O'Dowd is an internationally renowned singer, songwriter and disc jockey, better known as Boy George. In the course of his career, which began in the early 1980s, he has sold more than 33 million records worldwide. On 5^th December 2008 , following a trial in which he did not give evidence, he was convicted by a jury at Snaresbrook Crown Court of an offence of false imprisonment and on 16^th January 2009 was sentenced by the Recorder of Redbridge, His Honour Judge Radford, to 15 months imprisonment. Mr O'Dowd had previously been on bail.
2. The Secretary of State is required by s 244 of the Criminal Justice Act 2003 to release a fixed term prisoner after half his sentence has been served in custody. The Secretary of State also has a discretion under s 246 to release such a prisoner up to 135 days early provided that this does not result in release before a quarter of the fixed term has been served. During the second quarter of the sentence the offender must be subject to home detention curfew: see s 253. In both the second quarter and the second half of the sentence the offender is on licence. Subject to any revocation, the licence must remain in force until the end of the sentence (s 249): it must include certain standard conditions (s 250 (2)) and the person subject to the licence must comply with the conditions (s 252).
3. The standard conditions include the following which are relevant for the present purposes:-

"16 (iv) You must permanently reside at an address approved by your supervising officer and notify him or her in advance of any proposed change of address or any proposed stay, even for one night, away from that approved address.

16 (v) You must undertake only such work, including voluntary work, (as is) approved by your supervisor and notify him or her in advance of any proposed change."

4. It is accepted, rightly, that on a proper construction of these conditions the supervising officer may withhold approval of a change of address or of particular work being undertaken.
5. Failure to comply with any condition makes the offender liable to recall to custody, as paragraph 18 of the standard conditions emphasises.
6. Chapter 1 of the Criminal Justice and Court Services Act 2000 establishes a National Probation Service for England and Wales. Its functions include assisting courts in determining the appropriate sentences to pass on people convicted of criminal offences, and the supervision and rehabilitation of such persons. Supervision of offenders released from prison on licence is an important part of this and is specified in s 1(2) (b). In exercising the function of supervision the person concerned must have regard to the following aims listed in section 2 (2):

"(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

(e) the rehabilitation of offenders".

7. In exercising his powers to prescribe standard conditions the Secretary of State must have regard to the following purposes of the supervision of offenders while on licence, namely (a) the protection of the public; (b) the prevention of re-offending; and (c) securing the successful reintegration of the prisoner into the community (s 250(8) of the 2003 Act).
8. The Claimant was released on home detention curfew ("HDC") under s 246 on 11 May 2009. The curfew hours were 7pm to 7am. While he was on HDC he was thus unable to work as a disc jockey.
9. On 31^st August 2009 his electronic tag was removed and the curfew period ended. From that point onwards he has been on licence. The licence period will expire on 15^th April 2010.
10. On 1^st September 2009 he was invited to appear on the next and final series of Celebrity Big Brother to be broadcast on Channel 4 television beginning on 3^rd January 2010. As many millions of viewers are aware, the format of the programme, in the Claimant's words, involves participants living in the Big Brother house separated from the outside world under 24 hour television surveillance. The participants continue to live in the house until they are eliminated by the popular audience vote, or declared the winner. Endemol, the producers of the series, have offered the Claimant a substantial sum to take part.
11. Although the participants in Big Brother, or Celebrity Big Brother, known as 'housemates', are subject to constant surveillance, broadcasting is not live. There is a 15 minute delay which, it is argued, enables the producers to edit out anything which they are advised on legal or regulatory grounds to remove. Endemol have undertaken that any reference to the Claimant's offence or to the victim of that offence will be edited out.
12. In early October the Claimant's supervising Probation Officer, Mr. Fallows, was telephoned by the Claimant's manager who asked for permission for Mr. O'Dowd to take part in Celebrity Big Brother. Mr. Fallows was also asked for his approval for other media appearances by the Claimant. A long interview with him was published in the Times on 17^th October and six days later he was interviewed on the BBC 1 programme Friday Night With Jonathan Ross.
13. On 29^th October the Claimant's manager, Mr. Gordon, wrote to Mr. Fallows seeking permission for Mr. O'Dowd to appear on Celebrity Big Brother. In an email of 13^th November Mr. Fallows replied:

"As discussed on the telephone the Probation Service is willing to approve George taking part in Celebrity Big Brother if Endemol write us a letter confirming that:

1. They are aware that George is subject to conditions which mean he could be returned to prison should he do anything to undermine the purposes of his supervision, which are to protect the public, prevent him from reoffending and help him to resettle successfully into the community.

2. Any references to the offence or the victim will be edited out of any broadcast."

14. The evidence is that Mr Fallows sent that email following a discussion with Mr. Kerr, the assistant chief officer of the London Probation Service. However, when the chief officer, Mr. Paul Wilson, was first asked about the matter on Monday 16^th November, his initial view was that permission should be refused. Mr. Fallows contacted Mr. Gordon by telephone and email the same day to inform him of this and to advise him to take up the matter with Mr. Wilson if he wished.
15. Following further communications between the Defendant on the one hand and Channel 4 and Endemol on the other, representatives of Channel 4 met Mr. Wilson and two colleagues on 7^th December, which was his first day back after a week's holiday. The Channel 4 representatives were both lawyers, Mr. Pepin and Ms. Nicholas. After the meeting they drew up an attendance note. This document is not agreed and was not sent to Mr. Wilson after the meeting. It includes the following:

"PW (Mr. Wilson) then said he had heard nothing that convinced him that he should change his position. He said that if anything were to go wrong it would reflect adversely on the Probation Service and the Criminal Justice System and it would be he who would be in Jack Straw's office the next morning. His view was that it did not take much to create a media storm... PW said that no-one could deliver the red-tops: the tabloids could not be controlled. The Probation Service in London was hugely in the spotlight. If this was another board he could not guarantee that we could not get a different result. But we are London, and we cannot afford another kicking in the press. This was "not a downer" on Mr. O'Dowd, but that was the reality."

16. In his witness statement of 17^th December Mr. Wilson states (at para 30):

"I have been shown the notes of the 7 December meeting complied by the Claimant's lawyers. I see the comments attributed to me at the end of the note about "red tops" and "kicking in the press". The point which I was striving to convey, and which was relevant to me, was that the particular proposal being considered was one which would be conducted in a manner which was sensational in nature; that it was obvious that the media would similarly report on it in a manner which maximised the sensational aspects of the programme and the conduct of the celebrities involved; that no-one had any control over the manner in which the media covered this programme; and that these matters all posed significant if not inevitable risks to public confidence in the system of criminal justice and probation if a person took part in such a programme while still serving his sentence, and it is the Probation Service which is ultimately responsible and answerable for this matter. This is not a "fear of unjustified media criticism" as described by the Claimant's lawyers. Rather it is as I have described, namely a concern to safeguard public confidence in the system of criminal justice and probation, particularly with regard to the punishment of offenders in the community."

17. The next day, Mr. Pepin, the senior of the two Channel 4 lawyers who had attended the meeting, wrote to Mr. Wilson informing him that Endemol were willing to give the assurances that Mr. Fallows had sought as a condition of giving permission for participation in the broadcast and went on

"… we now understand that you wish to withdraw the consent outlined in the email of 13 November. From the meeting yesterday we understand the basis on which you wish to withdraw this consent is based on concern for the [the victim of the offence] and the press attention that Mr. O'Dowd's participation in this series might generate."

18. The bundle contains a copy of a letter sent by Mr Wilson to Mr. O'Dowd dated 7^th December indicating that the request for participation had not been approved and giving reasons. This letter never reached the Claimant. Nothing turns on that since its contents were repeated in a letter from the Defendant's solicitor to the Claimant's solicitor a week later. By this time, a letter before action dated 14 December 2009 had been sent to Mr. Wilson challenging the decision and asking the Defendant to revoke it and grant the Claimant immediate approval to appear on Celebrity Big Brother. The letter enclosed Mr. Pepin and Ms. Nicholas' notes of the 7^th December meeting.
19. The letter before action argued essentially the points which formed the bedrock of the oral argument. It was alleged that: (i) the Defendant had taken irrelevant considerations into account in that the refusal was said to be based in large part on fear of unjustified media criticism; (ii) the reasons for the refusal were irrational and bore no rational relation to the fulfilment of the objectives of the Claimant's licence; (iii) the decision was based in part on errors of fact; (iv) the Claimant's rights under Article 8 of the ECHR were engaged; the refusal was not necessary to achieve any legitimate aims set out in Article 8 (2) and was disproportionate; (v) the Claimant's licence made it clear that decisions about work and changes of residence were to be taken by the supervising officer, in this case Mr. Fallows, and he had been improperly overruled by Mr. Wilson.
20. In his reply, the Defendant's solicitor referred to part of Mr. Wilson's previous letter to the Claimant which had gone astray, as follows;

"i. London Probation has a responsibility towards the victims of crime. While you remain on licence I cannot condone an arrangement that would give you daily high profile media exposure over a protracted period of a month, while you are being punished for a crime that was traumatic for the victim. This could be detrimental to the victim as he may be reminded of the trauma he sustained as a consequence of your offending behaviour.

ii. It would undermine public confidence in the criminal justice system should it become known that while being punished for this offence, you were allowed to take part in a high profile, controversial television production that would promote your status as a celebrity and earn you a lucrative sum of money.

iii. While I note the assurances given by Channel 4 to exercise careful editorial control over the broadcast, there would be no control over the content of news articles in the national media. This raises a high level of risk to the reputation of London Probation."

21. The 14 December letter went on:

"The decision taken by Mr. Wilson on behalf of London Probation is not unlawful for the following reasons:

i. Irrelevant considerations: The considerations were relevant and decision was not based in large part on fear of unjustified media criticism. It was based mainly on sensitivity to the victim of your client's offence and the need to maintain public confidence in the criminal justice system. This is not to say that the reputation of London Probation was not an issue as indeed, this is relevant to the question of public confidence.

ii. Irrationality: The reasons for the refusal are rational. While on licence your client is being punished for his offence. In the eyes of a reasonable person it would be irrational to allow him to engage in work that would involve taking part in a high profile, controversial television production, promoting his status as a celebrity and with considerable financial gain.

iii. Breach of Article 8: It is agreed that the decision engages your client's rights under Article 8 but disputed that it is disproportionate.

iv. Improper delegation of decision making power: This is disputed. The Chief Officer is the accountable officer for the London Probation Board. All authority is delegated from him and by virtue of his position he is entitled to overrule a decision made by a member of his staff. This matter was referred up the line management for his consideration as the controversial nature of your client's request was acknowledged…"

22. This claim for judicial review was issued the same day. The following day Ouseley J considered the case on the papers and ordered a rolled up permission and substantive hearing, which took place yesterday, 22 December 2009.

The relief sought

23. The case is extremely urgent. I have been asked to give a decision before Christmas, since otherwise the claim will become academic. What the Claimant seeks is not a direction to the Defendant to reconsider: time is too short for that, and in any event there is no reason to think that Mr Wilson is amenable to changing his mind. The relief sought is expressed to be "a declaration that the Defendant should approve a temporary change in the Claimant's place of residence and the Claimant working as a participant in Celebrity Big Brother". In effect I am asked to say that any other decision would be unlawful. This is not an easy hill for a claimant in judicial review proceedings to climb.

Is the licence period part of the Claimant's punishment?

24. The first point raised by Ms Alison Macdonald for the Claimant is a matter of principle which justifies the grant of permission on its own. It is whether in exercising the function of supervising persons released from prison on licence the relevant officers of the Defendant must have regard to the aim of the "the proper punishment of offenders" specified in s 2(2)(c) of the 2000 Act. Ms Macdonald submits that the purpose of supervision on licence is not punitive. Rather the relevant purposes are those specified in s 250(8) of the 2003 Act, namely the protection of the public, the prevention of re-offending and securing the successful re-integration of the prisoner into the community. She submits that the statutory aim of the proper punishment of offenders applies to the drawing up of pre-sentence reports under s 1(1)(a) of the 2000 Act, and to the function of giving effect to community orders laid down in s 1(2)(a) of the same statute, but not to the management of prisoners released on licence.
25. I was referred to a number of cases, domestic and European, in which the power of the executive to determine the date of a prisoner's release on parole has gradually been eroded almost to vanishing point. A topic frequently raised is whether the maintaining of public confidence in the penal system has a role to play in decisions about the punishment of offenders. The courts of England and Wales have frequently held that it does, and in Dickson v United Kingdom (4^th December 2007, BAILII: [2007] ECHR 1050 ) the Strasbourg Court agreed. Ms Macdonald, however, submits that the purpose of a licence is not punitive but entirely preventative and rehabilitative.
26. For the Defendant Richard Clayton QC submits that a prisoner released on licence is still serving the sentence imposed by the judge. He refers to the judgment of Pill LJ in R (Uttley) v SSHD [2003] 1 WLR 2590 (at paras 14-16):-

"In my judgment the licence is plainly a part of the sentence originally imposed by the sentencing judge. ..… While licence conditions vary and in some cases will be more onerous than in others, it is not and cannot be disputed that conditions will inevitably be imposed which are impediments upon the offender's freedom of action. ……Arguments that the purpose of the licence procedures is rehabilitative and preventative, as undoubtedly in part they are, do not detract from their onerous nature viewed as part of the sentence. Whatever the purpose, the effect is onerous."

27. I accept Mr Clayton's submission that in the light of these observations of Pill LJ, with whom the other members of the Court of Appeal agreed, the unqualified obligation in s 2(2) of the 2000 Act to have regard to the proper punishment of offenders applies to the management of offenders on licence.

Irrelevant Consideration/Irrationality

28. Ms Macdonald submitted that at the heart of the case is the issue of what weight, if any, should be given to the possible adverse media reaction to an appearance by the Claimant on Celebrity Big Brother during the period of his licence. She argued that the licence is not to be managed on the basis of what the press might say. She submitted that although expressed more elegantly by the Defendants as being a decision taken on the basis of the need to maintain public confidence in the criminal justice system, essentially this is a cloak for a fear of unjustified media criticism.
29. Mr Clayton responds that this distinction is a departure from common sense. If there were a media storm in response to Mr. O'Dowd's participation in the programme it would be because he was allowed to do so while serving part of his sentence imposed for a serious criminal offence. The Defendant's fear is not of unjustified media criticism, but of justified media criticism. He relies on the passage in Mr Wilson's statement set out at [16] above.
30. In R (Mellor) v SSHD [2002] QB 13 at paragraph 65 Lord Phillips MR (as he then was) agreed with a submission of counsel for the Home Secretary that public perception is a legitimate element of penal policy. He went on:-

"Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be more likely to take the law into their own hands. In my judgment it is legitimate to have regard for public perception when considering the characteristics of a penal system."

31. In R (Nilsen) v Governor of Full Sutton Prison [2005] 1 WLR 1028 at para 26, Lord Phillips, giving the judgment of the Court of Appeal, endorsed his own observations in Mellor and continued:-

"In considering what restrictions can properly be placed on prisoners as natural constraints of prisoners, regard can be had for the considerations of right-thinking members of the democracy whose laws have deprived the prisoner of their liberty."

32. Nilsen was a multiple murderer seeking to publish his memoirs while in prison. His offending was of course on an entirely different scale to the Claimant's, and the issue was what restrictions could be placed on him while in custody. Nevertheless, it seems to me to follow from Lord Phillips' judgment that when considering what restrictions can properly be placed on offenders as incidents of supervision on licence, as part of a sentence of imprisonment, regard can be had to the expectations of right-thinking members of the democracy under whose laws a judge has imposed that sentence. Those expectations are not to be discovered simply by reading editorials, articles or petitions in newspapers, whether broadsheet or tabloid (see by analogy the Venables and Thompson case [1998] AC 407 at 525). It is inevitable, as Ms Macdonald accepted, that I must make up my own mind about what those expectations would be.
33. I consider that right-thinking members of the public would take the view that an offender serving the non-custodial part of a sentence of imprisonment should not be allowed to take part in a high profile, controversial television production, promoting his status as a celebrity and with considerable financial gain. At any rate that is a reasonable view which Mr Wilson was entitled to reach: and, subject to the "improper overruling" point which I deal with below, the decision is one for him, not for me. It is quite plainly not a decision, in the well known words of Lord Diplock in the CCSU case, "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it".
34. It follows that I reject the argument that the decision is flawed because of taking irrelevant matters into account, and the associated argument that the decision is irrational because the grounds given bear no rational relationship to the fulfilment of the objectives of the Claimant's licence.
35. There is a further irrationality point raised concerning the impact of the broadcast on the victim of the offence, but it merges into the next topic.

Material error of fact

36. Mr Pepin's and Ms Nicholas' notes of the meeting of 7 December – which were not, of course, verbatim - suggest that one of Mr Wilson's concerns was that the victim feared that he might be identified. It is argued that he did not appreciate the ability of Endemol to take advantage of the 15 minute delay in transmission to edit out references to the victim or the offence, in accordance with their undertaking; nor that the victim's identity was already in the public domain; nor that the Claimant himself has emphasised that he has no wish to talk about the offence or the victim while on the programme. Mr Wilson, in his statement, denies saying anything about the victim's fear of identification and adds that Mr Kerr, who was also present, supports his recollection. I accept what Mr Wilson says, but in any event I do not regard the small area of dispute about what was said as important or even material. The potential impact on the victim would not be confined to being named. Rather it would be that the very fact of Mr O'Dowd's appearance on the programme for days or weeks while still on licence would cause the victim distress, and would also be likely to lead to the details of the case being revived in the media as a whole. After the licence expires there will be no legal impediment to Mr O'Dowd appearing on television; but a temporary restriction is nonetheless of some assistance to the victim.

Article 8

37. The Defendant originally accepted that Article 8 was engaged in this case. Mr Clayton, however, has referred to R(Countryside Alliance and others) v A-G [2008] AC 719, in which the House of Lords held that the enactment of the Hunting Act 2004 did not engage the Article 8 rights of the claimant huntsmen. It is extremely difficult in the light of that authority to argue that loss of an opportunity to work comes within the scope of Article 8. Ms Macdonald distinguishes it on the basis that the restriction in the present case affects not just what work Mr O'Dowd does but also where he is to live for all or part of next month. But some of the huntsmen had tied homes too (see per Lord Bingham at 745C); and the alleged threat was to their permanent occupation, not just their residence for up to four weeks. Furthermore, another of Lord Bingham's grounds for rejecting the Article 8 claims based on respect for personal and private life was that "fox-hunting is a very public activity, carried out in daylight with considerable colour and noise". It is true that Big Brother housemates live indoors. But it is hard to imagine a more public activity.
38. I therefore conclude that the Claimant's Article 8 rights are not engaged. If they are, Mr Wilson was entitled to take the view that the proposed interference with them is limited and proportionate to the legitimate aim of maintaining public confidence in the criminal justice system.

Improper overruling

39. Ms Macdonald submits that the Claimant's licence vests decisions to approve where he lives or what work he can undertake in his supervising officer, namely Mr Fallows, and that once he gave his approval it was unlawful for Mr Wilson to overrule him. I cannot accept this argument. The statutory scheme imposes functions and duties on the Defendant as a probation board, and on officers of the board. It does not create a statutory post of an offender's supervising officer whose decisions, like those of a judge, cannot be reversed or varied save by some kind of formal process. I regard the London probation service as no different from any other hierarchical organisation where an officer can be overruled by his line manager, and so on up the reporting line to the chief officer.

Conclusion

40. For the reasons I have given I grant permission but dismiss the substantive claim for judicial review of the decision refusing approval for Mr O'Dowd to appear in Celebrity Big Brother while on licence.
41. I should record that Ms Macdonald took over the oral argument for the Claimant at short notice when her leader, Hugh Tomlinson QC, was snowbound in Amsterdam, and presented it with great skill and clarity. I am grateful to counsel on both sides for their assistance.