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
		29 January 2014

Mr Justice Collins :

1. The claimant was sentenced to 20 years imprisonment on 27 February 2002 following his conviction for doing an act with intent to cause explosions likely to endanger life. In August 2012 he was released on licence following a decision of the Parole Board on 17 July 2012 that, subject to a number of conditions, his risk to the public was reduced so that it could be managed in the community. The Board did not but had intended to impose a condition that he should not own or use a computer without prior permission from his supervising officer. On 6 February 2013 he was recalled to prison for an alleged breach of that condition. On 22 February 2013 his request to rescind the recall was refused. He challenges the lawfulness of both the decision to recall and the refusal to rescind that decision.
2. In 1996 the claimant had spent time in a training camp on the Pakistan Afghanistan border where he had inter alia learnt about explosives and the use of them and firearms. Drawings made when he was at camp were an important part of the prosecution evidence against him. There was found in the premises a lap top which contained numerous documents relating to Middle Eastern and Islamic terrorist groups and instructions on how to make improvised explosive devices (IEDs). There was also a large quantity of documentation which included notes on how vehicles could be disabled. Furthermore, quantities of explosive material were discovered. The claimant's defence was that he was not involved in any form of terrorist activity but the documents and the material were all concerned with making fireworks. His co-defendant did not support that defence and, by casting all responsibility for the incriminating material on the claimant, managed to secure his acquittal. The defence put by the claimant was rejected. However, he has not accepted his guilt and has continued to maintain that all he was interested in was the making of fireworks.
3. When sentencing him, the trial judge observed:-

"This was a serious plot. It was your plan to cause explosions on a scale which was likely to put lives in danger … You had an enormous quantity of both primary and secondary explosive, which was quite clearly enough for a number of large bombs … You had advanced as far as collecting the raw materials and making working detonators … The handwritten documents which you eventually admitted writing suggest strongly that you had been contemplating terrorist activity for some years, though not, of course, necessarily continuously. If your enterprise had not been nipped in the bud you had the potential to kill or to maim perhaps quite large numbers of people and at the very least you would have caused enormous risk to people's lives, together with panic, fear and public anxiety which was likely to be widespread well beyond whatever area you chose to place your eventual targets in."

Thus those responsible for supervising him were aware that they were dealing with someone who posed a very high risk to the public if he continued to hold the views which had led to his offending.

4. The Parole Board was persuaded that the claimant had not been radicalised so that he did not maintain (if he ever had) any religiously intolerant views. It was impressed not only with the claimant's behaviour in custody in that he had willingly engaged in all courses considered necessary but also with reports from the Imam and Professor Silke, an internationally recognised leading expert on terrorism and terrorist psychology. His view, formed following tests in 2009 and in 2012, was that the claimant posed a low risk of future involvement in terrorism related activity. One of the courses the claimant had undertaken was known as the Al Furqan programme. This was aimed at religious awareness and focussed specifically on the issues of Jihad and Qital (fighting). Other terrorist prisoners put some pressure on the claimant not to undertake that course. The report on his response to the course was that he showed remorse and deeply regretted his previous behaviour. This may be regarded as somewhat inconsistent with his maintenance of his innocence of the offence, but no doubt his engagement with the course was favourable to him.
5. The panel was particularly impressed by the evidence of the Imam who had persuaded the claimant to undertake the Al Furqan programme. The claimant had never given the Imam cause to have concerns about any holding or support of extremist views or use of violence. He believed the claimant when he said he was not going to return to prison if released and that the claimant would find it very difficult to face him if he breached his licence so that he was recalled.
6. The Probation officer who had worked with the claimant since 2011 opposed his release until he had completed a further course, namely Healthy Identity Programme (HIP), upon which he had embarked. The overseer of that course had been impressed with the claimant in that he had matured and the pressures which were on him at the time of his offending was no longer relevant. He had admitted that while at the training camp attempts had been made to recruit him but he said he had resisted those attempts. Nevertheless, Ms O'Shea, the probation officer and the claimant's offender supervisor, recognised that he had behaved in an exemplary fashion while in prison. The panel commented that Ms O'Shea was "unable to identify the indicators which would enable you to demonstrate this or explain how it would be possible to make the assessment." The 'this' referred to in this citation is the need to demonstrate that completion of the programmes including HIP had had an effect on him.
7. Following the decision of the Parole Board, it was asked by the manager of the second defendant's Homeless Offender Resettlement Unit to add some further conditions before he was released. Those included the computer condition, but the Board, as it later said, overlooked it and so it was not included. There followed, after the claimant's release, a further hearing in which that condition was considered. The claimant through his solicitors objected to it on the basis that, when he was permitted to return to live at home with his wife and children, the only computer belonged to her and it was said that it would be a breach of their ECHR Article 8 rights if that was liable to be removed to be examined. He produced a statement in which he explained that it would create intolerable pressures on him since his children would be unable to understand why they could not assist him in seeking information by use of the computer on everyday matters.
8. The condition sought and added to the licence following a hearing on 14 September 2012 was as follows:-

"To own or use (directly or indirectly) a computer, data storage device or other electronic device (including an internet-enabled messaging telephone) for internet access, instant messaging or other computer and online usage, only as allowed by your supervising officer. You must not delete the usage history of any such device that you have used, and you must allow your supervising officer and/or the police to have access to them, which may include removing them in order to conduct technical checks to establish usage."

9. A statement from the claimant's solicitor who represented him at the hearing on 14 September 2012 which considered the computer condition has been submitted. It has not been disputed. She argued that the Board's findings showed there was no real risk that he would access the internet for any forbidden purpose. The first defendant's representative argued that the condition was needed to manage the claimant's risk. He was not precluded from owning or using a computer, but he must accept that any computer he used would be monitored. He went on to say that 'ownership' would be construed in a narrow and not a legal sense and if he did not use the family's computer it would not be monitored. In its decision upholding the inclusion of the condition, the panel stated:-

"It had originally been the panel's intention to impose such a condition and unfortunately between drafts of the original decision it was omitted. The panel notes the concerns expressed through your counsel in respect of the examination of a computer that you may have access to through a member of your family. The panel trusts that as the supervision relationship with your OM develop that your concerns in this regard will be assuaged and that in any event there is an overriding principle that the condition should be implemented in a reasonable and proportionate manner."

10. The claimant was not cleared to live with his wife and children on his release. He was, however, allowed to spend up to 2 days and nights from time to time until the second defendant considered that he should be permitted a more permanent move home. In November 2012 his wife had to go to hospital for an operation. I was told she had had a miscarriage. Not surprisingly, this put considerable pressure on the claimant and he failed to inform the hospital that he would not be at home when she was discharged from hospital, Ms O'Shea having decided that he could not spend further time at home. This led to a warning letter, but it went no further and it is and was accepted that it could not properly have been regarded as creating a risk of danger to the public.
11. He had been granted weekend leave at home over 18 and 19 January 2013. It was decided that he should be permitted 3 nights at home at the end of January. But he was told that that would only be permitted if he allowed the police to collect the family laptop. It would be kept for about a week. This demand was made on 25 January. On 28 January the claimant was asked whether he had been able to discuss the demand with his family. He said they refused to surrender it because they did not see why their privacy should be invaded. He was told that there was a legal right to request it since anything within the family home constituted indirect ownership. Refusal to hand it over suggested he had something to hide. He said it was not his to deal with and he would discuss the issue with his wife and his solicitor. On 29 January he said he thought that it would be easier to give the laptop up and cancel the internet connection. It was collected on 30 January.
12. When it was examined by the police expert, it was discovered that the hard drive had been wiped, that is to say all data had been removed from it. A wide range of software programmes had been installed in the evening of 26 January 2013. It was unnecessary to have wiped the hard drive before installing the new programme. It was also assessed that the hard drive was likely to have been more than 3 years old. Further, albeit there is no evidence that the claimant was in any way involved, there is a strong suggestion that the laptop was stolen and it has been retained by the police.
13. The receipt of this information led Ms O'Shea to request that the claimant be recalled to prison. Such a request is to be made by means of what is called an Annex E report. Guidance has been issued on completion of such a report. Recalls are to be regarded as standard, in which case 24 hours is given for consideration, or emergency, in which case they must be dealt with within 2 hours. In the case of offenders who are serving determinate sentences, emergency recall will be for those who are assessed as high risk of serious harm. Since the claimant had been convicted of a very serious terrorist related offence, the belief which Ms O'Shea had when told that the hard drive had been wiped was that it had been done to conceal the existence of terrorist related material and so the claimant had reverted to his behaviour which had led to his conviction. Thus there was a very high risk of harm and so her request was for an emergency recall.
14. Mr Bunting submits that the request for recall was not fair and balanced as it should have been. This led to a decision to recall which was irrational in that it failed to have regard to material considerations which showed that the concerns that the claimant had been responsible for the wiping of the hard drive were unfounded. He further submits that the decisions of the Parole Board should have been annexed (particularly that dealing with the computer condition) to show the view formed of the claimant and the concerns raised about the impact on his family of the computer condition. It was suggested that his wife should have been asked about it so that she could give any relevant information.
15. Mr Bunting complains that the Annex E request was hostile to the claimant in a way which was unjustified. It was said that the claimant was 'seeking to obstruct the checking process' and there was 'an emerging pattern of behaviour whereby [he] is failing to fully cooperate with his licence conditions'. While he had attended all appointments and complied with the rules of the approved premises at which he was required to live, he had 'regularly challenged the decision we have taken and instructed his solicitor to intervene'. It was said that he 'frequently seeks the opinions of a range of professionals and plays one officer off against another in an attempt to get what he wants'. Complaint is made that there is no evidence to support those comments. It is the claimant's case that he only questioned decisions when there was good cause, as there was in relation to the computer having regard to what he understood from the September hearing that his family's rights would be respected.
16. While a request must be fair, it is reasonable for the supervising officer to form a view which may be adverse to a particular offender provided that that view is genuine and formed on reasonable grounds. Inevitably, the view formed will drive a request in a case such as this where a suspected terrorist is the subject. While the request does not specifically refer to the concerns raised about the effect on his family in relation to the computer, it is not in my view so unbalanced as to put a false case before the first defendant. This decision will be determined by consideration whether there was evidence upon which he could reasonably conclude that there had been a breach: see R (Gulliver) v Parole Board [2007] EWCA Civ 1386 Paragraph 6.
17. This was properly regarded as a case where an emergency recall was needed. There is no obligation to seek any further explanations from an offender or other person in such a case or, indeed, normally in any recall. The fact that release on licence had been decided by the Parole Board in a terrorist case would inevitably have made the first defendant appreciate that there must have been very positive evidence which led the Parole Board to believe that the offender no longer had the same feeling that led to his offending. Thus there was no need to annex the decision of July 2012. There is, perhaps, greater weight to be given to the submission that the concerns raised in relation to the computer condition were more relevant. But I do not regard the failure to do so as vitiating the request.
18. The reality was that there was no immediate agreement to hand over the computer. No doubt the grounds for the refusal were on their face plausible inasmuch as the claimant may have been led to believe that there would be no monitoring of his family computer. But that belief could be used against him in that it could have led him to believe that he could use it without the danger of it being examined. His wife has since made a statement on 14 February 2013. The computer developed a fault which led her to give it to a friend whose husband had a computer shop and should be able to cure the fault. She handed it over on 23 January. When she heard of the request by Ms O'Shea for the computer on 25 January, she was very upset because of the intrusion into her and her children's privacy. On it was personal data and photographs of her unveiled, she being a strict Muslim who observed the face veil and was not permitted to expose her face to a male other then her husband. So she instructed her friend's husband to "format", i.e. to wipe the hard drive.
19. It may be considered somewhat surprising that the claimant did not inform Ms O'Shea on 25 January that the laptop was not in his or his wife's possession but had developed a fault which was being attended to so that he could not in any event hand it over. His wife's concerns could equally have been mentioned and an undertaking requested that only a female would examine it and no use would be made of the personal data. But no mention was made of the wiping of the hard drive nor was any explanation for it given at the time.
20. It is further submitted that there was no power to require that the laptop be surrendered for examination. The requirement was said to be based on indirect ownership of belongings in the family home. I have grave doubts that that can be regarded as correct. However, the condition not to use the computer could only be monitored if the computer could be examined and it was therefore, whatever may have been said before the Board, implicit if the condition was to have any effect that it had to be monitored. The requirement was made so that what is called a mirror image could be obtained of what was on the computer. This could assist in seeing whether any subsequent use could be attributed to the claimant. But, as Mr Bunting recognised, whether or not the requirement was lawful, the laptop was handed over and the first defendant was entitled to act on what was discovered.
21. On 28 January the claimant's solicitors had written to Ms O'Shea asserting that she had no right to demand that he hand over the computer and that the claimant had never used it. Nothing was said in the letter about the fault or the wiping of the hard drive.
22. In the circumstances, I am satisfied that the recall was not unlawful but was justified by the unexplained wiping of the hard drive. The claimant had been at home over a number of days, the latest being 18/19 January. He had thus had access to the computer.
23. On 14 February 2013 the claimant's solicitors wrote a letter to the National Offender Management Service (NOMS) threatening judicial review and raising the matters which were relied on in this claim. The claimant's wife's statement of 14 February was annexed. The letter stated that the first defendant must quash the recall because it was unlawful. Section 254 of the Criminal Justice Act 2003 as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides as follows, so far as material:-

"s.254(2) A person recalled to prison under subsection (1) –

(a) may make representations in writing in respect to his recall …

(2A) The Secretary of State , after considering any representations under subsection (2)(a) or any other matters, may cancel a revocation under this section.

(2B) The Secretary of State may cancel a revocation under subsection (2A) only if satisfied that the person recalled has complied with all the conditions specified in the licence.

(2C) Where the revocation of as person's licence is cancelled under subsection (2A), the person is to be treated as if the recall under subsection (1) had not happened."

24. The solicitors' letter did not in terms ask for a revocation under s.254. On 22 February 2013 the first defendant replied through a Ms Razvi rejecting the assertion that the recall was unlawful, but stating that the claimant's case would be referred to the Parole Board who would consider whether he should be released. Mr Bunting submits that there is nothing in the refusal letter which suggests that there was consideration given to s.254. Ms Razvi has made a statement in which she states that she was of course aware of s.254 as amended and took it into account in her decision. Since there is a limitation in s.254(2B) requiring that there must be satisfaction that all licence conditions were complied with it is not surprising that the request for the recall to be quashed was refused. It is not for the first defendant to enter into a hearing if there are issues to be raised as to compliance with conditions. That can be dealt with by the Parole Board which has decided that an oral hearing will take place.
25. Mr Bunting is concerned that the Parole Board will not consider the lawfulness of the recall. Having regard to the date of the claimant's condition, a lawful recall will mean that he will remain subject to licence on release until the end of his sentence whereas if his recall were rescinded under s.254 or were quashed as unlawful, his licence would only extend to when he had served three quarters of his sentence. This makes a 5 year difference.
26. The Parole Board will obviously have to consider whether the claimant did in fact breach the computer condition. Thus it will have to decide whether the explanation now given by him and his wife is true. There is no statement from the friend's husband. I was told by Mr Bunting that he was reluctant to be involved in a case involving allegations of terrorist related activities. If the claimant's case is accepted, it will tend to confirm that, as the Board concluded in July 2012, any risk from him is not such as cannot be dealt with in the community. The sooner that a hearing takes place the better.
27. I recognise that if the Board concludes that there was no breach so that the recall was in fact not justified the adverse effect of a lawful recall on the claimant's licence requirements would be unfair. S.254(2A) lays down no time limit and, in referring to 'any other matters' gives a wide discretion. If the Board finds in favour of the claimant he should make an application under s.254(2A) which, subject to any exceptional matters which it is difficult if not impossible to envisage, should be accepted. Thus the revocation of his licence should be cancelled so that the unfair adverse effect of a lawful recall can be avoided.
28. For the reasons I have given, this claim must be rejected.