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
		24/11/2014

ORDER

Maura McGowan QC :

1. On 21 December 1999 Hyrone Hart, the Claimant, was sentenced to life imprisonment. He is a Category A prisoner and the term he must serve ("tariff") before he is eligible to be considered for release will not expire until 2027.

2. He is currently held at HMP Whitemoor, ("the prison"), and in August 2012 a decision was taken by the prison that he should be the subject of Safeguarding Children Measures, ("SCM's"). These impose restrictions upon any contact he may have with children, whether his own or not. This review seeks to challenge the validity of that decision. Permission to seek this review was not opposed by the Defendant.

Background

3. Mr. Hart has been convicted of two offences of murder, two attempted murders, two robberies and three offences of the possession of firearms and offensive weapons.

4. On 25^th June 1998 the Claimant and another man killed a woman in the presence of her husband and two small children. They forced their way into her home, armed with a gun and a knife. It may have been that they believed she was involved in drug dealing. Whilst in the house, they restrained the man and woman by tying them up. They made the children lie under a mattress whilst they stole items of jewellery and on leaving, the Claimant shot the woman, killing her, he also fired at, but missed, the man.

5. Less than a month later, on 17^th July 1998, the Claimant went to a house where the victim of the second murder lived with his partner and young child. Following an argument the Claimant shot and killed the man.

6. The Claimant has two children of his own; a son in his twenties and a daughter, born on 1^st July 1997. They both live in Jamaica. He also has a niece, 12, and a nephew, aged three; his sisters' children, and another niece, aged eight; his brother's child. They all live in the UK. He also has friends and an ex-partner who have children.

7. From his incarceration for these offences, and in particular from the date of sentence on 21 December 1999, until February 2010 the Claimant has been held in a number of different prisons. There had been no extraordinary restrictions upon his contact with children. From 2004 until February 2010 he was in HMP Whitemoor without any extra restrictions. In February 2010 he was informed of that prison's decision to make him the subject of SCM's. He was then transferred to HMP Full Sutton and on to HMP Frankland. Those prisons did not implement the SCM's. HMP Full Sutton, at least, had carried out an assessment and concluded such measures were not necessary. They were actively imposed on his return to HMP Whitemoor in August 2012.

8. The Claimant has made at least one application for contact with his daughter, niece and nephew.

Framework

9. The Defendant is bound to apply the procedures laid down in the Public Protection Manual, Chapter 2 Section 2, Child Contact Procedures, version 4.0 January 2009, "the PPM", which governs contact permitted between inmates and children. Paragraph 1 identifies the purpose as providing,

"…information and statutory guidance relating to the assessment of the level of contact that prisoners who have been convicted of or charged with an offence against a child or have a previous conviction for an offence against a child which includes offences of violence, sexual offences, neglect and abuse, who present an identified risk of harm (Risk to Children) must have with children and young persons which are held in custody."(sic)

The manual goes on to set out the over-riding principle that the welfare of the child is paramount, that contact must be in the child's best interest and that contact includes telephone calls and correspondence as well as visits by the child to the inmate.

10. Procedures are laid down and described as being necessary before permitting contact with children. The first step is the identification of relevant prisoners,

"Establishments are required to identify prisoners who have:-

Been convicted or charged with a sexual offence against a child

A previous conviction for a sexual offence against a child

A conviction or charge of murder or assault against a child

A charge or conviction involving domestic violence or abuse where a child was involved

A charge or conviction where emotional abuse or neglect of a child was involved

Displayed any behaviour whilst in custody indicating the prisoner presents a risk to a child

Information has been received from other agencies about the risk that the prisoner presents"

Having identified the prisoner as falling into one of the above, the prison is then required to commission "a multi-agency risk assessment" to determine, what, if any, contact should be allowed. Paragraph 3.2 of the PPM sets out the following,

"We have a duty to ensure that prisoners who represent a risk to children do not have contact with children prior to the completion of a full risk assessment."

Children are divided into two categories by the manual; "immediate family or children" and "other children". "Immediate family or children" include a prisoner's own children, a partner's children, (if they were living together in an enduring family relationship) and brothers, sisters, grandchildren, step children, adopted children and foster children. Nephews and nieces are not included in the category of immediate family; they are therefore identified as "other children". In order to have contact with "other children" the prisoner must "produce a substantial case for contact" and the Governor or Director of contracted out prison (sic) agrees that such contact would be in the interests of the child and only after a full risk assessment had been carried out. Such contact must be supported by the Parent/Carer, Social Services/Children's Services, Police and the Offender Manager Probation.

11. The need for proportionality is identified at 3.4, it reiterates the paramount issue as being the welfare of the child.

"Decisions to prevent or restrict contact need to take into account the risk presented by the offender, the needs and best interests of the child, balanced against the prisoner's right to a family life. In all cases decisions will be based on what is best for the child. The welfare and safety of the child is our primary concern. The rights of a child to be safeguarded and protected from harm must take priority over an offender's right to family life as set out in the 1998 Human Rights Act if the offender's right would mean that contact could place a child at risk. It is therefore appropriate that incremental restrictions are employed where required in the interests of the child".

12. Once the identification procedures have been satisfied, the multi-agency assessment must be completed. That should include an assessment leading to a written report containing recommendations being provided by the Children's Services Department within three weeks. Then the authorised Senior Manager makes the decision, taking into account, amongst other factors, "the prisoner's risk to the public" and the OASys, Offender Assessment System, (Probation) assessment.

13. Once a prisoner is the subject of SCM's the Senior Manager decides which of four levels of restriction should be applied to the contact with a child of the prisoner or any named child. No contact is permitted with any other unnamed child.

14. Chapter 2 Section 4 PPM, Persons Posing a Risk to Children, provides further guidance, in paragraph 1.2, the purpose and principles are laid out. It recognises the potential limitations on identification of risk based solely on conviction. A list of relevant offences is provided at Annex A.

"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.

1.3 Practitioners are advised to use the new list of offences as a "trigger" 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 on the correct group of prisoners and not include those who have been included solely because a child was harmed during the offence…………..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."

Paragraph 2.7 sets out a Management Process Chart, this is a flow chart designed to assist those responsible to make the right decision. It has as its 1^st Stage "Trigger", the means by which a prisoner can be identified as posing a risk to children. If there is no "trigger" the process stops there. Stage 2 requires an "Initial Decsion", "is there a potential or continuing risk to children taking into account any previous decisions or events?" Again, if the answer is in the negative then a record should be placed on the file of that fact and the process stops there. If the answer at stage 2 is positive then a series of actions should follow; Children's Services should be notified and consulted, along with the Offender Manager, and consideration should be given to whether immediate restrictions are required. Safeguarding Children procedures should be implemented and consideration should also be given to whether immediate monitoring is required. There will then, at stage 3, be a referral to the Interdepartmental Risk Management Team, (IRMT), for a final decision. If the decision is that there is no continuing risk, then again the fact is recorded and the process stops. It should only be if the IRMT decides there is a continuing risk to children that Safeguarding Children procedures are implemented and other relevant agencies are notified of the decision.

The Decision

15. After his return to HMP Whitemoor on 22 August 2012 the Claimant was informed that the IRMT had decided that he posed a risk to children whilst in custody and at an Interdepartmental Public Protection Panel (IPPP) the decision was taken to make him subject to SCM's. The basis for that decision was set out in a letter and expressed as follows,

"Due to the circumstance of the offences that Mr Hart has been convicted of where children were present in the property, he has been assessed as a medium risk of harm to children in the community in his OASys………..Due to the nature of his index offences has been convicted of murder with the presence of children in the vicinity of the crimes. They will undoubtedly have been traumatised from their experience and therefore Mr Hart does present a risk to children." (Emphasis added.)

No further reasoning was given and the issue of the risk that the Claimant posed to children, whilst in custody, was not addressed further.

16. The OASys report is the Probation Service assessment of the risk an offender poses both in custody and on release. In the report the Claimant was identified as being "a high risk" to the public and known adults and "a medium risk" to children if he was released into the community at the date of assessment. He was assessed as being "a low risk" to children whilst he remained in custody.

17. On 12 March 2014 the most recent review was carried out. The same level of risk to children whilst in custody was determined as low but the reasoning of the prison was expressed in its decision of 20 March 2014, as follows,

"Mr Hart has been assessed as a medium risk of serious harm to children. The risk is identified as physical and emotional harm directly caused by Mr Hart in relation to his history of violent offending-namely Robbery, Murder and Attempted Murder.

During one of Mr Hart's index offences 2 children were present at the time of their parents murder and attempted murder. This offence would have caused serious emotional harm for which recovery can be reasonably assumed to be difficult or impossible to recover from.

It is deemed that Mr Hart and his Co-d's behaviour also placed the children at risk of physical harm as they had been forced under the bed after which shots were fired at the bed-with potential to hit the children either through the bed or should they have attempted to escape out of the room.

Mr Hart also has a murder conviction where a young child was present with the mother at the time of the shooting. Whilst this in itself may not constitute a direct risk to children it does confirm that Mr Hart is fully prepared to cause direct emotional harm to a child and place them at direct risk of physical herm in carrying out his planned violent offences.

The risk of serious harm is directly linked to Mr Hart's overall high risk of serious harm to the public, therefore, until Mr Hart has reduced his overall risk of violence he will remain a risk to children.

Therefore it is the panel's decision that Mr Hart is appropriately placed on Safeguarding Children measures and presents an ongoing risk to children." (sic)

The Argument

18. The Claimant relies on three fundamental submissions,

a. That the imposition of SCM's has a significant impact on the rights of any prison inmate,

b. That although such a course is undoubtedly necessary in certain cases, the denial of right must be a proportionate to the risk of harm it is intended to prevent and

c. That the risk must exist in reality. In this case the Claimant submits that whatever risk he might be deemed to pose to children, if at liberty, he presents no appreciable risk whilst incarcerated.

He further submits that the Defendant's process was flawed in material respects in that,

a. The offences for which he is serving are not a proper trigger for the process of considering the imposition of SCM's,

b. Even if that proposition is wrong and they did trigger the process there is no continuing risk so long as the Claimant is in custody and

c. He seeks support for the above from the fact that a number of other prisons, even when they carried out the assessment exercise, did not find that the Claimant presented such a risk.

19. The Defendant contends that,

a. It is not a necessary requirement that the index offences should have been committed against children and the fact that these offences were committed in the presence of children is capable of being enough of a trigger,

b. That the fact that the other prisons were in error in not reaching the same conclusion as the defendant does not render its decision unlawful and

c. That the Claimant's interpretation of the PPM is too narrow and restrictive and if applied universally would cause the Prison Service to fail in its objective to satisfy the over-riding objective of protecting children.

Conclusion

20. Each claim of this kind must turn on its own particular facts. It is obvious that the denial of a right to have contact with a child that is a family member is a serious step and one that can only be justified if the denial is proportionate to the risk of harm to be avoided or curtailed. It is further obvious that the denial of such a right can also be the denial of a child's right to family contact.

a. An offence which does not appear on Annex A may still be capable of being a trigger to the imposition of SCM's depending on all the circumstances, including physical proximity,

b. In cases where the crimes were not committed against or in relation to children there is no general rule to be gleaned simply from the seriousness of the offences,

c. That these offences, having been committed in the presence of children, could be triggering offences and the decision that they were cannot be said to be so arguably wrong or irrational as to be unlawful,

d. That if, the Defendant's decision was lawful it could not, on the facts of this case, be rendered unlawful by the failure of other institutions to follow the same line of reasoning,

e. The purpose of the rules is to ensure that the prison authorities take all necessary steps to avoid the risk of harm to children from inmates whilst in the custody of the prison,

f. That for the foreseeable future this Claimant presents a high risk of serious harm to the public on his release into the public, although that release cannot be considered before 2027 on his current tariff and

g. That, whilst in custody, he is, as the OASYs assessment makes clears, a low risk to children.

21. Accordingly it was not a proper decision on the facts of this case to find that the level of risk that the Claimant presents to children is such that it was appropriate or necessary to impose SCM's. This claim succeeds and the decision must be quashed.

CO/9823/13

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

BETWEEN:

HYRONE HART

Claimant

and
THE GOVERNOR OF HMP WHITEMOOR

Defendant

and THE SECRETARY OF STATE FOR JUSTICE

Interested Party

_______________________________ ORDER _______________________________

UPON HEARING COUNSEL FOR THE CLAIMANT AND COUNSEL FOR THE DEFENDANT

IT IS ORDERED THAT:

1. The Claimant's judicial review is allowed.
2. The Defendant's decision to impose Safeguarding Children Measures on the Claimant is quashed.
3. The Defendant to pay the Claimant's reasonable costs to be assessed if not agreed.
4. There shall be a detailed assessment of the Claimant's costs for public funding purposes.
5. The Defendant to make submissions in writing on permission to appeal, if so advised, by 4pm on 27 November 2014.
6. The Claimant to make any submissions in response on permission to appeal by 4pm on 2 December 2014.
7. If the matter cannot be agreed, the parties to make submissions on the payment of costs on account pursuant to CPR 44.2(8) by 4pm on 2 December 2014.