QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Hassan Tabbakh)
|- and -
|The Staffordshire and West Midlands Probation Trust
Secretary of State for Justice
|- and –
|The London Probation Trust
Conrad Rumney (instructed by Staffordshire and West Midlands Probation Trust) for the First Defendant
James Strachan QC (instructed by Treasury Solicitors ) for the Second Defendant
Hearing dates: 11 and 19 July 2013
Crown Copyright ©
Mr Justice Cranston:
"It was evident that the prison staff had made [the claimant] aware of the fact he was discussed at MAPPA panel and [he] had asked staff about the MAPPA process. [The claimant] relayed to the panel in February  that he wanted the panel to be aware he can become agitated. It was reported and noted that [he] was paranoid about being released to an Approved Premises as he thinks he will be killed by the Government. [He] is upset he is assessed as a risk to the community."
It was confirmed to the May 2011 panel meeting that the claimant was aware of the MAPPA discussions about the release plans being made for him. At that meeting the impracticability of release to London was discussed in the light of the failure of the Foundation to provide information. Licence conditions for the claimant on his release were canvassed and agreed. In particular the panel considered that the licence conditions it agreed were necessary and proportionate to the level of risk of serious harm which the claimant posed. A smaller professional meeting of the panel was held in June when licence conditions were discussed again. That meeting noted that the claimant had been advised of the licence conditions and that a chaperone had been appointed for him on his release. In the latter part of May the UK Border Agency said that it would not attempt to deport the claimant.
"xvi Confine yourself to an address approved by your supervising officer between the hours of 7pm and 7am daily unless otherwise authorised by your supervising officer. This condition will be reviewed by your supervising officer on a monthly basis and may be amended or removed if it is felt that the level of risk that you present has reduced appropriately.
xvii Report to staff at Carpenter House, 33 Portland Road, Edgbaston, Birmingham at 11:00am and 3:00pm daily unless otherwise authorised by your supervising officer. This condition will be reviewed by your supervising officer on a monthly basis and may be amended or removed if it is felt that the level of risk you present has reduced appropriately.
xviii You must comply with such arrangements as may reasonably be put in place and notified to you by your supervising officer so as to allow for your whereabouts and your compliance with the curfew condition to be monitored (whether by electronic means or otherwise …
xix You must comply with such arrangements as may be reasonably put in place and notified to you by your supervising officer so as to allow for your whereabouts and your compliance of the electronic monitoring condition to be monitored....
xxiii Permanently reside at Carpenter House, 33 Portland Road, Edgbaston, Birmingham B16 9HS and must not leave to reside elsewhere, even for one night, without obtaining the prior approval of your supervising officer; thereafter must reside as directed by your supervising officer."
On its face the licence provided for a variation or cancellation of the conditions.
"Continue to encourage [the claimant] to engage with local mental health and specialist providers; To explore assessment for Healthy Identity Programme; Licence conditions reviewed weekly; Request solicitors to encourage [the claimant] to engage in local treatment; Liaise with local housing providers; Continue to liaise with London Probation; Identify who will be in attendance at assessments at Helen Bamber Foundation; Complete ERG assessment."
The legal and policy framework
(a) a requirement that he/she reside at a certain place;
(b) a requirement relating to his/her making or maintaining contact with a person;
(c) a restriction relating to his/her making or maintaining contact with a person;
(d) a restriction on his/her participation in, or undertaking of, an activity;
(e) a requirement that he/she participate in, or co-operate with, a programme or set of activities designed to further one or more of the purposes referred to in section 250(8) of the Act; (f) a requirement that he/she comply with a curfew arrangement;
(g) a restriction on his/her freedom of movement (which is not a requirement referred to in sub-paragraph (f));
(h) a requirement relating to his/her supervision in the community by a responsible officer.
"Offender managers must explain each condition of the licence and consequences of the breach on the first occasion the offender reports following release from custody."
"Pre-release planning for extremist offenders should start with a multi-agency meeting at least six months before release. The MAPPA panel may recommend certain conditions based on the information that they have on the offender but it is up to the Offender Manager to decide, in consultation with senior probation staff, what conditions are necessary to manage the risk posed. Annex B sets out examples of the type of conditions that can be used to manage specific risk factors associated with extremist offending. They must not be used for other types of offenders."
Extremist offenders included all those convicted of offences under terrorism legislation and those whose offending was known to be linked to extremist organisations or causes including, but not limited to, Al Qaida: [1.5]. As with additional conditions generally, the Annex B conditions were to be used only where they were necessary and proportionate. The Annex B condition included requirements prohibiting contact with particular persons, banning association (for example, attending particular meeting), restrictions on activity and supervision (notification of passports held and of an intention to apply for a new passport).
"2.40 When explaining licence conditions to offenders prior to release, staff must ensure that the offender understands any such conditions, this is particularly important with additional and bespoke conditions as they may contain complex or detailed requirements. In addition, staff must take into account any issues such as English as a second language, or learning disabilities that may prevent the offender from understanding completely what is required of them."
"In particular, it is considered that the presence of an offender at a MAPP meeting could significantly hinder the core business of sharing and analysing information objectively and making decisions accordingly. Offenders and their representatives should therefore be excluded from MAPPA meetings. The offender should however be allowed the opportunity to present written information to the MAPPA meeting through their offence/case manager or for this person to provide information on their behalf. Offenders … should not become abstracted from the process of assessing and managing the risks they prevent. It is good practice for offenders to know that they are being managed through MAPPA, what MAPPA is and what this means for them."
"there is a clearly stated mechanism for informing offenders, both before and after MAPPA meetings and that the information shared is fully recorded in minutes and case records."
"[12.16] … It is good practice for offenders to know that they are being managed through MAPPA, what MAPPA is and what this means for them … [12.7] 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."
"[W]herever possible this should be done with the offender".
The offender manager draws up the sentence plan.
"The process of formulating the plan should engage the offender as an "active collaboration… In collaboration with offender and resource providers, [the offender manager must] draw together assessment of individual, offending history, requirements of sentence, relevant policy priority requirements and resources available into single sentence plan."
The offender manager ensures that arrangements are in place to deliver the plan, puts in place the punitive elements of the sentence and evaluates impacts. The offender manager will often become the offender's probation officer on the offender's release from prison.
Challenge to policy: the law
Article 8 procedural requirements
"The Court reiterates that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Buckley v United Kingdom, no. 20348/92 §76, ECH 1996-IV).
In particular, the Court will examine whether the procedural protection enjoyed by the applicant at the domestic level in respect of his right to respect for his private life under Article 8 of the Convention was practical and effective (see, among many other authorities, Papamichalopoulos and Others v Greece …) and consequently compatible with that Article."
Procedural rights with license conditions