England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		20th December 2013

HIS HONOUR JUDGE PELLING:

1. This is the substantive hearing of a claim for judicial review by which the claimant, a prisoner serving a life sentence imposed on 5th November 2010, with a twenty-three-and-a-half year minimum term for the offence of murder, seeks to judicially review a decision that he be subject to Safeguarding Children Measures following a conviction when he was aged 13 for indecent assault, that offence having occurred in 1998 and against a 13-year-old boy. The submission which is made on behalf of the claimant is that the approach adopted by the defendant in relation to the decision to impose these measures on the claimant is either contrary to the policy applicable to such measures because the offence for which he was convicted should not, on proper analysis of the policy, have been treated as a trigger offence within the meaning of the relevant policy, or alternatively, having concluded that he was guilty of a trigger offence, it was either disproportionate or irrational, then to conclude as a result of the trigger offence and all the other circumstances that he presented a continued risk to children when it is submitted that on the material no reasonable defendant in the position of the governor of HMP Frankland could come to such a conclusion.
2. The relevant statutory guidance is contained in the public protection manual, principally in chapter 2, section 4. The claim is brought against a background of course where in relation to contact with children within the family of the defendant the rights enshrined in Article 8 of the European Convention on Human Rights are engaged. Article 8 of the Convention provides that everyone has a right to respect for his private and family life, his home and his correspondence. That right is not absolute but is qualified. The qualification is contained in paragraph 2 of Article 8 which provides:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime for the protection of health or morals, or for the protection of the rights and freedoms of others."

The proportionality test is one by which the interference with the right contained in paragraph 1 should be the minimum necessary to obtain the objectives referred to in paragraph 2, whichever of those be relied upon.

3. The relevant policy is that contained, as I have said, in the public protection manual. In so far as is material for present purposes that manual provides as follows:

"This chapter of the public protection manual provides information and statutory guidance on how establishments must manage those offenders who are identified as a risk to children and subject to persons posing a risk to children (PPRC) while in custody..."

4. In the fifth paragraph under Section 1.2 the following is said:

"This Guidance recognises that assessment of risk posed by an individual to a child or to children is not solely about conviction and their offending history. Convictions and offending history in themselves do not provide a complete picture by which to assess the extent to which an individual poses an ongoing risk to children. Assessment of risk posed by an individual needs to take into account a wide range of factors including the age of the offender, the circumstances of the offence and an assessment of the offender's behaviour, both past and present."

In section 1.3, under the heading "Advice and Information" the guidance to this effect is provided:

"Practitioners are advised to use the new list of offences as a 'trigger' (Annex A) to a further assessment to determine if a prisoner should be regarded as presenting a continued risk or potential risk to children. This allows establishments to focus resources on the correct group of prisoners and not include those who have been identified solely because a child was harmed during the offence. Examples include where a drunk driver is involved in an accident and a child is injured, or a juvenile is assaulted during an incident with another juvenile.

Where it is clear that the offender does not present a continued risk to children and Safeguarding Children arrangements would not bring added value, it is not necessary to put them in place ..."

At paragraph 2.7 there is an instructive flow diagram which sets out under the heading "Management of persons in custody who pose a risk to children" a schematic summary of the approach which is required to be adopted by the policy to which I have referred. This is divided into a series of four stages with flows to different stages depending on the outcome of previous stages. Stage 1 under the heading "Trigger", says this:

"• arrival of identified individual with a relevant offence (current or previous) against a child with or without existing paperwork..."

Stage 2 is then described under the heading "Initial decision" and is in these terms "Is there a potential continuing risk to children taking into account any previous decisions and events?". If the answer to that question is "no", then the flow diagram suggests that the correct outcome is "Record on file - retain for future reference, if further concerns raised return to STAGE 1". Only if the answer is "yes" is it necessary then to embark upon a series of stages which are designed to control access to children in a manner that it is accepted is proportionate, providing that the initial decision is correctly taken. Thus, providing it is the case that a person is identified as an individual with a relevant offence, and is identified as posing a continuing risk to children, taking into account any previous decision or events, then what follows in the manual as the steps required to be taken is regarded as no more than a proportionate, that is to say the minimum interference necessary to deliver the declared objective which is to protect the welfare of children which of necessity may interfere with the Article 8 rights of the prisoner concerned.

5. The submission made on behalf of the claimant in this case is that, on a proper construction of the policy contained in the manual, the relevant officials should have concluded that the claimant had not committed a relevant offence, as that phrase is properly to be understood, or, if that is wrong, that the relevant official should have concluded on the material available that there was no potential continuing risk to children, taking into account any previous decisions or events and thus a decision to subject the claimant to Safeguarding Children Measures was either disproportionate or irrational, although it is submitted that which test is applied is not perhaps significant for present purposes. The position adopted by the defendant is that the claimant poses a continuing risk to children and therefore is subject to Stages 3 and 4 in the process that I have outlined.
6. In response to a letter before action, the defendant sought to explain his position in a letter dated 14th February 2013 signed by Claire O'Sullivan, the Public Protection Coordinator for HMP Frankland. In so far as it is material that letter says as follows:

"As you are aware, your client is subject to Safeguarding Children Measures as a consequence of his conviction for Indecent Assault in 1998. These measures were confirmed by the Public Protection Operational Team on 17 June 2011 in accordance with Public Protection Manual guidelines. Appropriate paperwork was issued and signed by Mr Smith. Thereafter, Mr Smith applied for contact with his niece and nephew [K] and [BS], on 13 January 2011. Parental consent was requested but was not received until 11th January 2012. Assessments were requested immediately in accordance with the Public Protection Manual guidelines and full contact at Level four, that is telephone, letters and visits, was approved on 28 March 2012."

7. The point which needs to be made is that level 4 contact is the most liberal of the levels of contact permitted once it has been decided that the safeguarding children measures must be applied to the individual concerned. It is also the case that on each and every occasion when an application has been made for contact a level 4 decision has been arrived at in favour of the defendant. Some reliance is placed upon this fact by the claimant as supporting the notion that even if the offence for which he was convicted in 1998 is to be regarded as a "trigger" offence, it is nonetheless irrational to treat him as being a continuing risk to children.
8. The other aspect to this case which is a facet of the same problem arises from a provision within the Public Protection Manual at chapter 2, section 3 and concerns the photographs of children in the possession of prisoners. The relevant policy, in so far as is material, provides as follows:

"1.1 Background. Prisoners who present a risk to children will, like any other offender, wish to have photographs of family members and friends in their possession. There are issues that must be considered before allowing prisoners who present a risk to children to have photographs of children in their possession. The Prison Service has a duty to protect children from being conditioned and groomed as a possible target of physical and sexual abuse. The statutory guidance has been produced to assist establishments in preventing an offender from grooming a child for sexual abuse. It concerns prisoners who have been identified as being subject to risk to children... and convicted of a sexual offence against a child and are currently serving a custodial sentence or have a previous conviction for such an offence."

It is to be noted that the basis upon which these provisions have been applied to the claimant is the conclusion that he poses a risk to children and has been convicted of a sexual offence against a child in the past and that he is currently serving a custodial sentence. The policy in relation to photographs continues at paragraph 1.3 in these terms:

"It is not appropriate for offenders who present a risk to children to have photographs of children in their possession unless an assessment has been conducted to ensure there is no risk to that child. Establishments must take necessary steps to ensure that the identity of the child in the photograph is established and that the parent or carer is aware the offender may be allowed to keep the photograph."

9. The rationale for the rule is identified in paragraph 1.5 of the relevant policy in these terms:

"It is known that some prisoners, including child sexual offenders have given photographs of children to other prisoners who are child sex offenders. It will be advisable for all prisoners who are child sexual offenders to have the details of photographs containing children entered into their history sheet. If a child sexual offender is found to have a photograph of a child in his or her possession without authority, the photograph should be confiscated, the prisoner should be questioned about how the photograph came into his possession and the report placed in the prisoner's record with a copy placed in the sentencing management documentation to that effect for risk management purposes."

This part of the policy document concludes at paragraph 1.8 in these terms:

"No restrictions necessary. Prisoners cleared for level 4 child contact procedures. If a prisoner has been cleared for child contact at level 4/no restrictions necessary as per Child Contact Procedures chapter 2 section 2, you would only have to check the identity of the children in the photographs are the same as the ones which have been cleared in the child contact procedures. The only other issue which should be taken into account is whether they may be sharing the photographs with other prisoners."

10. The evidence which deals with this particular aspect of the issue I am now concerned with is contained in a witness statement of the claimant which is dated 27th November 2013. It is not necessary that I quote at length from it but it sets out the effect of the procedure in practice in relation to photographs of the children within the claimant's extended family. It also refers to the fact that on at least four occasions photographs of children and in one case a birthday card have not be forwarded to the claimant notwithstanding that he has received level 4 clearance in relation to at least some identified children.
11. I have already read from the response to the letter before action. The issue was returned to in correspondence in a letter from the Ministry of Justice which was dated 10th August 2012. In that letter, an explanation was offered as to why it was that the claimant had been subjected to the child protection measures to which I have referred. In so far as is material that letter says as follows:

"Chapter 2, Section 2 of the PPM requires prison managers to identify offenders who present a risk to children. Offences (past or present), behaviours displayed, and information from other agencies are all considered as part of the identification process. Mr Smith has a previous conviction for indecent assault against a child which means he is subject to the child contact procedures set out in the PPM. Although the relevant offence was committed whilst the offender was a child the policy does not identify or exclude offenders based on their age at conviction. This means that Mr Smith has been correctly identified as a risk or potential risk to children."

12. As is apparent from the correspondence to which I have referred so far, the underlying factual basis which is said to be the reason why the claimant had been subjected to Safeguarding Children Measures is a conviction for indecent assault in 1998. It is common ground that the claimant was convicted of indecent assault in 1998, when he was aged 13, against a boy who is also aged 13. It is also common ground that that offence is included within the list of offences set out at Annex A to the public protection manual under the heading "A chronological list of offences which can be used to identify those who present a risk or potential risk to children". The list is an extremely long list of various offences covering nearly four pages of text. The single offence which is said to apply to the claimant is indecent assault on a man contrary to section 15 of the Sexual Offences Act 1956.
13. Although the terms of the letter from Miss O'Sullivan referred to above refers to the conviction, evidence has been filed on behalf of the defendant which suggests that a rather more detailed approach was taken to be assessment of the claimant. This material is referred to and annexed to the witness statement of Miss O'Sullivan which is dated 24th September 2013. I refer to this material hereafter, noting before I do so that Miss Krause's overarching submission in relation to this material is that it is ex post facto justification for the challenged decisions and does not lie easily with the contents of the letters which prior to the service of the witness statement where the only explanations offered to the claimant concerning the decisions that he now challenges.
14. The witness statement contains some introductory material before proceeding by reference to a series of sub heads, the first of which is "Stage 1: trigger", and next of which is stage 2/stage 3 "IRMT indicating ongoing risk to children".
15. Paragraph 12 of the witness statement recites that:

"The Claimant arrived at HMP Frankland on 8 June 2011. He had been sentenced to a period of life imprisonment with a tariff of 23 years and six months for an offence of Murder. As is standard practice with all prisoners arriving at HMP Frankland have an initial file based risk assessment, undertaken [in the claimant's case] on 13th June 2011."

The witness statement then continues:

"This indicated that Mr Smith had a conviction for indecent assault in 1998. This is a listed offence which can be used to identify those who present a risk or potential risk to children as per Annex A section 2, Chapter 2 of the PPM. This is not where the decision making process stopped. The PPOT did not consider that the Claimant's previous conditions for Indecent Assault automatically indicated that he was a risk of harm to children. The PPOT understood that a comprehensive risk assessment was required to be conducted before making a determination to this effect."

16. The next subheading that appears is "Stage 2: Initial Decision - Is there a potential continuing risk to children taking into account any previous decision and events?" There is then a reference to the PPOT having sought further information, had contact with an external offender manager, seeking information in relation to the nature and context of the previous conviction, that is to say the trigger offence and paragraph 13 then continues:

"A response was received Ms Gregory on the same day. The response stated as follows:

'Jamie does have a conviction against a minor- Indecent Assault in 1998. Mr Smith informs me he grabbed the young male by the genitals in an attempt to hurt him however the previous assessment states that he made a younger boy take down his trousers and then touched his penis. Mr Smith denies any sexual motivation - says was to humiliate him as boy had been cheeky to him."

At paragraph 14 there is a reference to an Oasys assessment which is said to have been dated 16th March 2011. This document is exhibited to the witness statement from Miss O'Sullivan. A submission was made by Miss Krause to the effect that the Oasys assessment actually exhibited appeared to be from a much later date. However, I am satisfied on the basis of the contents within the body of the report exhibited that this has been correctly attributed as dated 16th March 2011. There is then a summary of some information derived from the report which includes a reference to the trigger offence, a section which repeats the comments already referred to by Miss Gregory and then to the question: "Are there any concerns in relation to children" the answer given is "yes". For reasons I will explain in a moment, that is not a fair presentation of the contents of the Oasys report, or at any rate on those parts of the Oasys report to which reference is made.

17. Reference was also made to a pre-sentence report dated 24th December 2009. This report predated the conviction for murder and appears to have be prepared in relation to a burglary offence. A particular extract is quoted from page 6 of the report which is to this effect:

"... my assessment that Mr Smith's previous convictions, specifically his Indecent Assault offence and Section 20 Wounding offence, indicate his ability to cause serious harm."

The conclusion which Miss O'Sullivan says was reached from material to which I have so far referred is to this effect:

"Upon considering his history of offending it was clear to the PPOT that the offences all involved repeated and significant acts of violence. This was a great concern to the PPOT...

The aforementioned information was placed before the PPOT on 17 June 2011. Due to the ongoing violence, which included the stated assault of a nineteen year old in 2000 while she was pushing a pram, potentially indicating a disregard for the presence of a child within an offence, along with the differing accounts from the Claimant in relation to the Indecent Assault in 1998, which potentially indicated a lack of awareness or responsibility for actions undertaken; a decision was made by the PPOT that there was potential continuing risk of harm to children and therefore the Claimant should be subject to the Safeguarding Children Measures contained in the PPM."

In summary, referring back to the flow diagram I referred to in earlier in this judgment, the question in the box at headed "Initial decision" and identified as stage 2 was answered positively by reference to this material.

18. The relevant material is to be found, as I say, attached to the witness statement of Miss O'Sullivan. I have already referred to and do not need to repeat again the comments made by Miss Gregory in relation to the indecent assault offence in 1998. So far as the Oasys assessment is concerned, as already indicated, I conclude that this was indeed prepared on the 16th March 2011, for such appears on page 2 of 55 of the report as being the date when the assessment in question was completed.
19. The material relevant for present purposes starts at page 29 of 55 under the heading "Risk of serious harm screening". Question R.2 refers to "risk to children - screening". R2.1 say this: "Is the offender now or on release likely to live with or have frequent contact with any child who is on the Child Protection Register or is being looked after by the local authority?" to which the answer was "no". In relation to R2.2, the questions were as follows: "Are there any concerns in relation to children?" to which the answer was "yes" and in answer to the question: "Should contact be made with Social Services?" The answer was "no". Under box R2.2, the following appears: "If you have ticked 'yes' to R2.1 you must complete R.7". It is necessary then to refer to R.7. Before turning to it I note in passing that at R6.2, there is description of the claimant's relevant offending, which deals with the offence in 1998 in terms which are broadly similar to those mentioned by Miss Gregory and to which I have already referred and deal with the offence concerning the woman and the pram in these terms:

"Section 47 Assault - July 2000 - On the 17th July 2000, Mr Smith approached a 19 yr old female who was pushing a pram along the road. He pushes her and then punches her in the face causing bruising to her eye. The victim did not give a witness statement and retracted her complaint."

R7 appears at page 34 of 55 of the OASys assessment. It is headed: "Risk of serious harm full analysis" and then says:

"To be completed if indicated by R2, if the offender is believed to pose a risk of harm to children whose identity is known, or if the offender is in close contact with named children who are at risk."

There then appears the following:

"R7.1 The role of the offender

Is this section being completed because the offender:

a) presents a risk to identifiable children [to which the answer was "no"].

(b) is involved in a situation where there are identifiable children who are considered to be at risk from others..."

To which the answer was again "no".

In the box that follows, there is the following narrative:

"There are no current concerns in relation to children however as mentioned, Mr Smith has a previous Indecent Assault conviction in 1998 - Mr Smith informs me that he grabbed the young male by the genitals in an attempt to hurt him however the previous assessment states that he made a younger boy take down his trousers and then touched his penis - Mr Smith denies any sexual motivation - says was to humiliate him as boy had been cheeky to him."

20. This part of the report is not referred to by Miss O'Sullivan in her witness statement. It is a potentially significant particularly because of the analysis of the report writer that there were "no concurrent concerns in relation to children".
21. The pre-sentence report referred to by Miss O'Sullivan was, as I have said, for an offence that was committed prior to the offence of murder for which the claimant is currently serving a sentence of imprisonment. The parts relied upon by the defendant and by Miss O'Sullivan in her witness statement appear at page 6 of 10 and include under the heading: "Risk of Serious Physical and Psychological Harm", a definition of serious harm, as being "death or serious injury, whether physical or psychological where recovery will be difficult if not impossible". The report says:

"There is no evidence to suggest that serious harm has been caused during the commission of this current offence. However it is my assessment that Mr Smith's previous conviction, specifically his Indecent Assault offence and Section 20 Wounding offence, indicate his ability to cause serious harm. In terms of Indecent Assault offence in 1998, Mr Smith states he 'grabbed' a fellow pupil at school by his genitals. He states that the motivation was not sexual in fact Mr Smith intended to hurt the victim. Mr Smith states that during the section 20 wounding also 1998, he repeatedly hit the victim who was a caretaker at school with a stool leg ...".

Under the heading "Likelihood of Re-offending" the report writer says:

"Mr Smith has thirteen previous convictions on record for twenty four separate offences. Mr Smith's likelihood of re-offending has been assessed based on the Home Office assessment tools - Offender Reconviction Scale ... and the Offender Assessment System ... in which a number of factors including age at first conviction, the number and nature of previous convictions, together with social factors are assessed. Mr Smith's assessment would indicate that he is at a high risk of re-offending of any nature. To summarise, of offenders with a similar age, gender, criminal history and social/personal risk factors, about 5 in 10 are known to reoffend violently and 7 in 10 non-violently within 2 years."

Although this was relied upon by Miss O'Sullivan as supporting the conclusion reached, it is noteworthy that the thrust of this part of the report focuses upon the risk of serious harm and re-offending and that the risk of re-offending was assessed at a very macro level by reference to offences of violence and non violence respectively that the indecent assault offence was relied upon solely for the purpose of demonstrating a predisposition to violence and was not relied upon as showing a predisposition to sexual offending.

22. The final document to which reference was made was a sentence planning and review meeting note prepared after the claimant had been sentenced to life imprisonment for murder, the offence for which he is currently detained. That document refers on page 1 to "Subject to safeguarding children measures" to which the answer was "no". Over the page, in relation to previous convictions, by which I think is meant convictions for offences prior to the offence for which he is currently serving a term of imprisonment, there is a reference to a series of 18 previous convictions encompassing 26 offences, including the single sexual offence in 1998, to which I have referred repeatedly earlier in this judgment. There is another summary, yet again of the offence of indecent assault in terms which is broadly similar with that which has previously been set out. The report goes on a little later, under the heading "risk of re-offending" to give an Oasys score which suggests that he is at a high risk of re-offending and poses a high risk of harm to members of the public, known adults and a medium risk of harm to staff in the community. Interestingly under the tabular description of "Risk of serious harm", the boxes relating to the public, known adults and staff are all marked as being at risk if the claimant was to be in the community, but most notably, "children" have not been marked as being at risk from the claimant either if he is in the community or in custody. Again, this was not referred to by Miss O'Sullivan in her assessment.
23. Miss Krause also refers to the fact, which I think must necessarily follow from what I have said already, that the list of objectives set out at the back end of the sentencing report, does not include work of a sex offending nature. This necessarily follows I think from the fact that he had not been convicted of a sexual offence and aside from the single offence committed while he was 13, no sexual offending appears anywhere in his record.
24. I now return to the issues which arise in this case which were the two I identified at the outset. The first submission which is made on behalf of the claimant by Miss Krause is that the mere appearance of an offence for which a person has been convicted, in the list of offences in paragraph A is not a sufficient basis upon which it can be concluded that the offence should be treated as a trigger offence for the purpose of protecting the children policy contained in the PPM. She says that this necessarily follows from the terms in which the role of the trigger offences described in paragraph 1.3 of the PPM. She says that the phraseology suggests that there is inherently a discretion as to whether or not to treat an offence which appears within the list at annex A as a trigger offence. She says this follows from the fact that the phraseology suggests that practitioners are "advised" to use the new list for the purpose of carrying out "a further assessment to determine if a prisoner should be regarded as presenting a continuing risk or potential risk to children."
25. She also relies upon the words that follow as emphasising and enhancing what in her submission is obvious from what has gone before, which is that merely because an offence in the offending history of a particular defendant falls within the list at annex A does not lead to the conclusion that all such prisoners convicted of such offences are to be treated as having triggered the child protection measures regime. She says that that follows from the following:

"This allows establishments to focus resources on the correct group of prisoners and not include those who have been identified solely because a child was harmed during the offence. Examples include where a drunk driver is involved in an accident and a child is injured or a juvenile assaulted during an incident with another juvenile."

26. The submission made on behalf of the defendant on this point is that this an incorrect analysis of the effect of this part of the policy guidance, that the wording of the policy guidance for Stage 1 is cast in deliberately wide terms, so as to ensure that all potentially relevant offenders are gathered at the first threshold stage for the purpose of then embarking on Stage 2 and following. It is submitted on behalf of the defendant that this is manifest from the flow diagram or process chart to which I referred earlier in this judgment, which defined stage 1 as being a "trigger" and identifies the test as being "arrival of an … individual with relevant offence (current or previous) against a child or without existing paperwork." [Emphasis supplied]
27. The emphasised words of that definition are important because if reference is made to annex A, as I have mentioned, that shows that there are a vast number of offences including for example "murder", "manslaughter", "infanticide", "kidnapping" and "assault or battery". The annex A list, if treated in isolation, would suggest that every person convicted of murder, manslaughter, infanticide, kidnapping or false imprisonment or for that matter assault or battery would necessarily come within the scope of the policy I am now considering. But if reference is made to the definition of what constitutes the "trigger" in the flow diagram to which I have referred, it becomes clear that that is not so because the relevant offences are qualified by the words "against a child". That is a critical qualification but, in my judgment, is the only qualification that applies at the first stage in the process. I therefore do not agree with Miss Krause's submission that there is necessarily implicit within the definition of the trigger condition some further requirement which involves the decision makers in asking themselves whether notwithstanding the trigger offence was committed against a child, there is some other factor or factors which ought to lead to the exclusion of the offender from the relevant policy at the trigger stage. Indeed, in my judgment, the words that follow, and Stage 2 as defined in the process chart, makes that abundantly clear. The second paragraph within paragraph 1.3 of the policy emphasises that if there a trigger offence has been committed by the relevant offender, this leads to "a further assessment to determine if the prisoner should be regarded as presenting a continuing risk or potential risk to children" as part of the Stage 2 process. The words that follow in the third paragraph within paragraph 1.3 make it abundantly clear that this is the point at which a qualitative or evaluative process must be undertaken for the policy says that where that task has been undertaken and "where it is clear the offender does not present a continued risk to children and safeguarding children arrangements would not bring added value, it is not necessary to put them in place." There is therefore a sift stage that involves an evaluation not merely of the trigger offence but all the other surrounding and relevant circumstances in order to decide whether there is a realistic continuing risk to children posed by the prisoner concerned.
28. Thus, in relation to the first ground relied upon by Miss Krause I conclude that she is mistaken in the submission that she makes and that the only question that has to be identified at stage 1 is whether or not a relevant offence against a child has been committed. Manifestly that requirement is satisfied in this case because in 1998, at the age of 13, the claimant committed an indecent assault for which he was convicted against another child also aged 13.
29. However, that then leads to a consideration of the second issue that arises, the stage 2 evaluative process. It is to be borne in mind that the question that has to be answered at this stage is whether or not the offender presents a continuing risk to children, so as to justify the cost and inconvenience of putting in place the safeguarding children arrangements which would otherwise be an unjustified waste of resources, time and money. The examples which are given in the previous paragraph within paragraph 1.3 as being cases where it would not be inappropriate to impose the safeguarding children arrangements on a particular prisoner, refer to this, the stage 2 process, because, as I have explained, the first sentence of that paragraph deals with both stage 1 and stage 2. Thus, the reference to allowing establishments to focus resources on the correct group of prisoners and "not include those who have been identified solely because a child was harmed during the offence" is a part of the stage 2 process. Thus, the examples given are instructive as to when it is likely to be inappropriate to apply the safeguarding children arrangements. As the guidance says:

"Examples include where a drunk driver is involved in an accident and a child is injured or a juvenile is assaulted during an incident with another juvenile."

30. Against that background I then have to turn to the material which is relied upon by the Secretary of State and which it submitted on behalf of the claimant does not support to the level required, the conclusion that has been reached in this case. It is put on the basis that the only fact or matter on analysis that has been taken into account is the existence of the earlier conviction and/or in the alternative that it was neither proportionate nor reasonable, nor rational to conclude in the stage 2 stage on the material available that this claimant posed a risk to children.
31. The material which was relied upon is referred to by Miss O'Sullivan in her witness statement. It was suggested by Miss Krause in the course of her submissions that these were ex post facto justification. I cannot accept that submission, for in the light of the contents of the witness statement and the material that is referred to, plainly this is material which was being considered by the decision makers at the outset. It is much more relevant to consider what this material on analysis demonstrates.
32. As I have already explained, the e-mail exchange with Miss Gregory does nothing more than to explain, in terms which are repeated umpteen times in the documentation, the circumstances of the historical sexual assault by the claimant when he was 13 on another boy aged 13, while they were at school. The OASys assessment, it is perfectly true to say, records the answer "yes" to the question: "Are there any concerns in relation to children?" but the basis of that assertion was again the historic conviction to which I have referred. The R6 analysis simply sets out once again the summary in relation to the offence in 1998. It refers, it is perfectly true to say, to an offence on 17th July 2000, which involved an assault on a 19-year-old female when she was pushing a pram but there is nothing in the circumstances of that that suggests this was any sense an offence against a child other than perhaps at most incidentally. There are certainly no circumstances set out in the offence summary which suggest that this offence had any effect on any child at all. Thus, it is not material. Had it been material to the assessment it would no doubt appeared as being one of the offences which justified the conclusion that there were concerned about children. The significant point about R7 is that part of the answer which I have quoted already, which suggests that the report writer was firmly of the view:

"However, there are no occurrences in relation to children ..."

This was a significant point to be borne in mind, given the only source of concern was a historic offence committed while the claimant was aged 13 against a fellow pupil while at cool.

33. The pre-sentence report, to which reference is made, does not refer to sexual offending of any sort but refers in passing to the indecent assault offence and also a section 20 wounding offence as justifying the conclusion that there was a high risk of this particular claimant re-offending, violently and non-violently as a statistical analysis based on various factors within his personal make up. There is nothing in my judgment within box 4 which assists or informs on the question which had to be answered which was whether or not this offender presented a continued risk to children.
34. Finally, and in relation to the sentence planning and review meeting note, those certainly refer to the trigger offence but there is nothing within the report itself to suggest that the claimant was regarded as a risk to children. Indeed there is some material that positively suggests the report writer considered that the claimant did not pose a risk to children for the box, under the heading "risk of serious harm", the subheading "children" was not ticked either in relation to risk in the community or risk in custody.
35. All of this leads me to accept the submission made on behalf of the claimant that the sole basis upon which the decision to conclude that he posed a present risk to children was by reference to the offence committed in 1998, when he was aged 13 and against a fellow pupil whilst they were at school. Thus, I conclude that on the material which has been presented there was no reasonable, rational or proportionate basis for concluding that the claimant presented a continuing risk to children and thus justified invoking the safeguarding children policy.
36. In those circumstances, and for those reasons, it seems to me that the decision not to answer the stage 2 question "is there a potential continuing risk to children taking into account any previous decision and offence" affirmatively must necessarily be quashed. On the material that is currently available to me I do not believe that any reasonable person in the position of the defendant could conclude he posed a continuing risk to children, whatever risk he might theoretically have posed in 1998 when he was aged 13. This does not mean that it necessarily follows that the only proper answer was "no". What it means is that the defendant will have to embark on a fresh decision making process which applies correctly the policy as set out in the policy document and in particular, analyses critically what there is in the information known concerning this claimant that suggests that he poses a continuing risk to children.
37. This is a particularly difficult jurisdiction for prison officials to engage with, for at least potentially it involves infringing Article 8 of the European Convention of Human Rights. If the right to contained in Article 8(1) is to be infringed lawfully, then it must with shown that the infringement is proportionate. An infringement which can be justified by the correct application of the policy set out in the PPM following the flow diagram in particular at paragraph 2.7 inevitability leads to the conclusion that any interference resulting will be proportionate, but the failure to carry into effect the policy as set out is likely to lead to result in disproportionate interference. The interference is significant, as is shown by both the letter referred to by Miss Krause from the claimant concerning the way in which his contact with the children within his extended family has been interfered with and also by his witness statement dealing with the issue of photographs and the like. Thus, very great care is required before this potentially intrusive regime is imposed upon prisoners. The scope of Stage 1 is necessarily a wide one but that merely emphasises the need to apply Stage 2 critically and analytically. Regrettably that was not done in this case and for that reason the decision must be quashed.
38. MISS KRAUSE: My Lord, I am most grateful. There is an application for costs.
39. HIS HONOUR JUDGE PELLING: Is that opposed? Have you a schedule?
40. MISS KRAUSE: No.
41. HIS HONOUR JUDGE PELLING: Are you legally aided?
42. MISS KRAUSE: We are.
43. HIS HONOUR JUDGE PELLING: Detailed assessment with a legal assessment for you. Right. Anything else? Can I thank you both for the way in which you have handled this case, it was a pleasure listening to both of you.