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
		31/08/2016

HHJ McKenna:

Introduction

1. The Claimant, a determinate sentence prisoner, recalled to prison following his release on licence, seeks Judicial Review of the decision of the Parole Board of England and Wales ("The Defendant") by letter dated 11 August 2015 ("The DL") not to direct his re-release following an oral hearing convened on 25 July 2015.
2. The Claimant was sentenced on 15 June 2011 to six years and three months' imprisonment for burglary and assault occasioning actual bodily harm ("ABH"). He was initially released on licence on 25 March 2014 but recalled on 12 January 2015 following his arrest for two breaches of a non-molestation order imposed upon him in November 2014. The Claimant was convicted by his plea on both counts at Basildon Magistrates Court on 12 January 2015 and sentenced to 56 days in prison (28 days for each count).
3. Permission to seek judicial review was granted on the papers by Mr. David Elvin QC sitting as a deputy High Court Judge who, when granting permission, made the following observations:

"While the Court generally leave matters of judgement on release to the Parole Board, the claim is on balance arguable."

4. The Claimant's grounds of challenge are three-fold as follows:

i) Failure to apply a presumption in favour of release;

ii) Unfair assumptions against the Claimant made by the Defendant in the absence of a fair procedure for the determination of disputed matters or proper enquiry and investigation contrary to Common Law and / or Article 5(4) of the European Convention of Human Rights – that is to say procedural unfairness;

iii) Irrational or wrongful assessment of a high risk of serious harm to the Claimant's ex-partner rendering it necessary to detain and / or failure to have regard to material evidence and considerations.

5. In summary, the Defendant's response to these three grounds is as follows:

i) There was no necessity as a matter of law for the Defendant expressly to refer to the presumption in favour of release. Moreover, it is clear from the reasoning contained in the DL that the Defendant did in fact apply such a presumption, but having assessed the Claimant's risk, it concluded, based on all the available evidence, that that risk was "not manageable in the community" thus necessitating detention.

ii) The Defendant made no assumptions and drew no inferences concerning the veracity of the assault allegation, nor was it obliged so to do. In any event the decision was not based on the disputed allegation alone but on a number of relevant considerations.

iii) The assessment of risk was within the boundaries of rationality and took into account all relevant considerations.

Factual Background

6. The factual background is non-controversial and I adopt in very large part, and with gratitude, the Defendant's counsel's summary.
7. The Claimant, who was born on 6 November 1982, is a determinate sentence prisoner who was sentenced on 15 June 2011 to 6 years and 3 months for burglary after a guilty plea and for ABH. The burglary offence had involved the Claimant and his associates, dressed in balaclavas and hoods, attacking the owner of the property, a single female. In the Judge's judgment he stated "This Burglary began, not with a break-in, but with great planned violence towards the victim. The violence was inside her own garden, three of you subjected her to intensive violence…this was every householder's worst nightmare." The ABH offence involved the Claimant driving over a Police Officer's foot recklessly which caused an injury to the Officer's ankle.
8. At the time of the offence the Claimant had a history of offending dating back to 2004 when he was convicted of offences of possessing an offensive weapon (a knife), possessing cannabis and having no driving insurance. The Claimant was sentenced to imprisonment for possession of the knife. In 2005 the Claimant was sentenced to imprisonment for possessing ammunition. In 2006 the Claimant was convicted of threatening behaviour and in 2007 he was convicted of attempted robbery and sent to prison for 30 months. In 2008 the Claimant was convicted of possessing cocaine.
9. The Claimant was released on licence on 25 March 2014. Condition 5(i) of the licence required the Claimant to:

"be well behaved, not commit any offence and not do anything which could undermine the purposes of your supervision, which are to protect the public, prevent you from re-offending and help you re-settle successfully into the community"

10. On 11 November 2014 the Claimant telephoned his Probation Officer to explain that he would not be attending his appointment on that day because he feared he would be recalled due to an assault allegation from his ex-partner and mother of his two children. Limited information is known about the incident. The DL stated as follows:

"Few facts were available in relation to the alleged assault except that the victim had a clump of hair missing. You have two daughters one of whom was said to be present during the assault."

11. It appears that Essex Police were called but the victim did not wish to press charges. The victim did however apply for and obtain, without notice, a non-molestation order in the family court on 11 December 2014, which was served upon the Claimant on 19 December 2015, though he denied having been aware of it at that time. The order prevented the Claimant from, inter alia, "communicating with the applicant whether by letter, text, or otherwise except through solicitors".
12. According to the DL, following the allegation of assault, the Claimant's Offender Manager advised him not to have any contact with his ex-partner, the police issued a harassment warning and the Claimant was prohibited from having contact with his ex-partner for 28 days.
13. The Claimant complied with the harassment warning. However, in breach of the non-molestation order, the Claimant called and texted his ex-partner on 24 December 2014 and then phoned his ex-partner on 8 January 2015 on three occasions. The ex-partner also received calls on a withheld number and her buzzer was rung several times – although there is no evidence that this was the Claimant.
14. On 12 January 2015 the Claimant pleaded guilty and was convicted of two counts of breaching the non-molestation order at Basildon Magistrates Court. The court sentenced him to 56 days imprisonment (28 days per count). The Claimant was subsequently recalled to prison on the same day for breach of condition 5(i) of his licence, requiring no offences to be committed.
15. On 18 February 2015, a member of the Defendant directed an oral hearing and the submission of a brief addendum from the Offender Manager and a brief conduct and progress report from the Offender Supervisor.
16. Re-release was supported by the Offender Manager responsible for supervising the Claimant when he was in the community, Ms McGowan. She had been his offender manager for over three years. Neither of the other two report writers felt that they knew the Claimant well enough to be able to make a recommendation as to his suitability for re-release.
17. The Claimant completed several courses whist in custody, including victim awareness; domestic and relationship abuse; interpersonal skills; and anger management and family relationships. No course reports or certificates were included in the short dossier considered by the Defendant's panel.
18. An oral hearing via videolink before a panel member of the Defendant took place on 27 July 2015. The DL was issued on 11 August 2015.

The Decision under challenge

19. Under the heading "Introduction" the Defendant's panel referred to the test it should apply , namely "the Defendant is empowered to direct your re-release only if it is satisfied that it is no longer necessary for the protection of the public that you should continue to be confined"
20. Under the heading "Panel's Assessment of Current Risk", the following appears:

"You have been assessed of presenting a low static risk of reoffending (OGRS), a medium risk of general reoffending (OGP) and a low risk of violent reoffending (OVP). You have also been assessed as presenting a high risk of causing serious harm to a known adult, a medium risk of serious harm to children, members of the public and staff members (presumably because of your offence of assaulting a police officer by running over his foot).

In coming to its own assessment of risk the panel took account of the very serious and violent nature of the index offence of burglary that involved preplanning and targeted offending. The panel was particularly concerned about the violence that was used against the victim in order to get her to comply. Little is known by your offender Supervisor or Offender Manager about the extent of the violence and your part in it. In your evidence to the panel you minimised your responsibility for running over the police officer's foot, describing it as an accident, and that you reacted out of shock, not knowing who the person was. You have previous convictions for offences of violence, albeit that they are not for such serious offences.

The panel had concerns about the allegations of assaulting your ex-partner. Although you have not been convicted of any violence against your ex-partner, nonetheless a non-molestation order was imposed as a result of an incident which occurred in November 2014. You continue to demonstrate significant hostility towards you ex-partner, accusing her of having drugs in the house, of fabricating the complaint and that she threatened you for money. You demonstrate limited insight into the effects of your own behaviour.

You have yet to undertake any accredited thinking skills work or interventions to address your involvement in the use of violence during the index offences of burglary and ABH.

The panel considered that your risk of violence would not have included the violence you used during the burglary. As such the panel considered that your OVP underestimated your present risk of future violent offending. Taking all factors into account the panel considered that you continued to present at least a medium risk of violent reoffending with a high risk of causing serious harm to an intimate partner through domestic violence. The panel noted that your risk of serious harm to the public had been reduced to medium whilst you were on licence as a result of the period of ten months that you spent in the community without further violent offending."

21. In the section of the DL entitled "Conclusions and decision of panel," after acknowledging the arguments in favour of re-release, in particular the Claimant's good behaviour in custody, the non-threatening nature of his contact with his ex-partner, the absence of any convictions or evidence of previous domestic abuse, his compliance with the 28 day warning issued by the police and the fact he complied with his licence for approximately 10 months before he was recalled, the Defendant listed a number of concerns, summarising points made earlier in the DL, as follows:

"However the panel was concerned about the extremely serious and violent nature of the index offences of burglary and ABH which resulted in significant injury to the police officer. You appeared to have little insight into your reasons for committing the index offences, and minimised your responsibility. Your involvement in the violence used during the burglary has not been explored, and little is known about any lasting injury sustained by the victim. The victim was particularly vulnerable as she had been previously burgled on 4 occasions. The emotional and psychological harm occasioned as a result of the burglary is likely to be lasting and difficult to recover from. You have a previous offence of attempted robbery, albeit that you were convicted when you were a youth.

In addition the panel had significant concerns about your motivation and ability to comply with your licence conditions for the period remaining until your sentence expires in April 2017. Whilst your behaviour could be monitored in Approved Premises for the period whilst you remain resident, the risk management plan would be less robust once you move out. The panel found little evidence of any internal risk management strategies that would help you to avoid future violence either instrumental or expressive.

You continue to present a high risk of serious harm to your ex-partner. Whilst taking account of the time you spent in the community without violent re-offending the panel could not be as confident as your Offender Manager that your risk of serious harm to the public had reduced to a medium level. You have yet to demonstrate any significant acceptance or responsibility for your part in the index offences and circumstances surrounding your recall.

The panel concluded that your risk is not manageable in the community for the period remaining until your sentence expires and therefore did not direct your re-release".

LEGAL FRAMEWORK

22. The statutory provision governing the Defendant's role in the review of the recall of a determinate sentence prisoner is section 255C of the Criminal Justice Act 2003. That statute is silent as to the test for release to be applied by the Defendant but it is common ground that the relevant test is whether the "Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined"^[1]. There is therefore no separate test for determinate recall cases that also requires and allows for the balancing of the benefits of early release against risk and no longer can the Defendant continue to detain a determinate recall prisoner on the basis of a risk of non-violent offending.
23. The Defendant's Member Casework Assessment guidance states as follows:

"All cases are now subject to the same statutory test for release – that a prisoner no longer needs to be confined for the protection of the public – so requires the same assessment of risk."

24. The Defendant's Oral Hearings Guide (November 2014) provides guidance as to the applicable test as follows:

"2.2.1 Determinate sentence cases after recall

The Board directs the release of recalled determinate prisoners. This direction is binding on the Secretary of State and he must give effect to it.

Although LASPO is silent on the test for release of recalled determinate prisoners, the public protection test may be interpreted to apply to determinate recall cases and so the Board's position is that it is this test that panels must now apply, interpreting it as they see fit. This was accepted as correct in the JR case of King. Panels should not solely refuse to release based on a breakdown in the supervision of a licence. However, where such a breakdown means that continued detention is necessary in order to protect the public, then refusal to release is justified.

However, panels are required to reverse the test, applying a presumption in favour of release and making a positive finding of risk. The case of Sim (2003) established that this applies equally to extended sentence prisoners.

It should be noted that the exercise is a current risk assessment only. Panels are not tasked to decide whether the recall was appropriate or not, although making findings of fact about the recall incident(s) may be an integral part of the current risk assessment."

25. It's common ground that the decision making process adopted by the Defendant must be procedurally fair and that of course includes the process of the hearing itself and in this regard I was referred to the decision of the Supreme Court in Osborn v Parole Board; Booth v Parole Board; In re Riley [2014] AC 1115. Moreover where there is a disputed allegation the Defendant must consider it fairly and not simply make assumptions adverse to the prisoner see R (Benson) v Secretary of State for Justice [2007] EWHC 205 (Admin)
26. The court's approach to judicial review of the Defendant's decisions was considered by Stanley Burnton J as he then was in R. (Alvey) v Parole Board [2008] EWHC 311 (Admin) as follows:

"26. The law relating to judicial review of this kind may be shortly stated. It is not for this court to substitute its own decision, however strong its view, for that of the Parole Board. It is for the Parole Board, not for the court, to weigh the various considerations it must take into account in deciding whether or not early release is appropriate. The weight it gives to relevant considerations is a matter for the Board, as is, in particular, its assessment of risk …

27. The Panel must give reasons for its decision, but it is not required to address every matter which it considers provided it is clear that it addressed the substance of the issues required to be addressed in a particular case, and that its reasons demonstrate why early release has not been ordered, and are sufficient to demonstrate the lawfulness of the decision."

27. This statement was subsequently cited with approval in Ismailaj v Parole Board [2011] EWHC 1020 (Admin) and R. (D'Cunha) v Parole Board [2011] EWHC 128 (Admin).
28. It is common ground that the Defendant must decide for itself whether recall should be maintained.
29. In Sim, the Court of Appeal was concerned with the proper approach of the Defendant when considering the release of a recalled prisoner subject to an extended sentence at a time when the custodial period had passed. The court held that Article 5 of the European Convention on Human Rights required the Defendant to apply a presumption in favour of release, and not to impose a burden of proof on the prisoner to satisfy the Defendant that it was safe to release him. In other words, the Defendant must be positively satisfied that it is necessary for the protection of the public that the prisoner should be confined: see paragraph 51 per Keene LJ.
30. In R (Broadbent) v Parole Board [2005] EWHC 1207 (Admin) Stanley Burnton J , as he then was, said as follows:

"26. Nonetheless I am clear that the fact of a charge and a pending prosecution alone cannot without more justify a conclusion that there is a risk of reoffending. If it were, the Parole Board would be delegating to the prosecution authority the assessment of the conduct of a prisoner and the evidence or facts said to give rise to a risk of reoffending. Moreover, if the fact of a charge and a prosecution for the offence was sufficient, it is difficult to see how the Board could give to the prisoner the fair hearing to which he is entitled, as envisaged by the House of Lords in R (Smith and West) v The Parole Board [2005] UKHL 1.

27. That is not to say that the Parole Board is required in every case to consider all of the evidence on which a prosecution is based, or indeed any of it, or that it must necessarily make a finding as to whether the prisoner did or did not commit the offence charged. There will be cases where the undisputed facts are sufficient for it to conclude that there is a risk of reoffending.

28. In the present case, there were before the Board facts in addition to the charge and prosecution alone, and certain facts were undisputed: that the claimant was driving the van and that in it a large and valuable quantity of cannabis was hidden. The Parole Board is entitled to consider whether someone dealing with that quantity of drugs would entrust its custody to someone who was ignorant of its existence and who, presumably, if he discovered it, might surrender it to the police. It is also entitled to have regard to the claimant's past association with drug dealers. "

31. I have this guidance very much in mind when considering the parties' respective submissions.

THE GROUNDS

Ground 1

32. What is said on behalf of the Claimant is that there is nothing in the Defendant's reasoning in the DL that demonstrates that consideration was given to the presumption in favour of release or that the Defendant even recognised that that applied in this case. In this regard it is to be noted that the Defendant was not reminded of the presumption during the course of the oral hearing. Moreover, such a consideration cannot simply be assumed in the absence of such a reminder, particularly as in many cases before the Defendant, concerning the release of indeterminate sentence prisoners, there is no such presumption. Thus, it is argued, the failure to apply the presumption constitutes a breach of the Defendant's own duty and is a clear legal error.
33. However, to my mind, the absence of an express reference to the presumption in favour of release does not necessarily mean that the Defendant failed to have regard to it. Moreover it was submitted on the Defendant's behalf that having regard to the Defendant's status as an expert tribunal with a reservoir of expertise and knowledge, this court should be slow to conclude that the Defendant's panel were not well aware of the presumption in favour of release and had it in mind and, absent a clear positive indication that it misapplied the presumption or did not apply it at all, rather than merely did not expressly refer to it, this Court should be equally slow to assume that the Defendant has got it wrong. There is considerable force, as it seems to me, in that submission.
34. Moreover, a similar argument was made and rejected in R (Gary Coney) v Parole Board and Secretary of State for Justice [2009] EWHC 2698 (Admin), a case which, like the present, concerned a challenge to a decision of the Defendant to refuse to recommend the release of a prisoner who had been recalled as a result of breaching his licence conditions. The condition in particular prohibited the individual from contacting a particular associate without the prior approval of his supervising officer. One of the grounds of challenge was that the Defendant failed to appreciate, when considering recalled prisoners who have passed the custodial period, that there is a presumption in favour of release unless it was positively satisfied that it was necessary for the protection of the public that a prisoner be confined, as in the incident case.
35. Counsel for Mr Coney submitted that the Defendant did not in terms in its reasons use the formula set out by the Court of Appeal in Sim but Burnett J (as he then was) dismissed the argument at paragraph 28 of his judgment as follows:-

"… Miss Gallagher had a second submission on this point, namely that the parole Board did not in terms in its reasons use the formula of the Court of Appeal in Sims. The reasons concluded with the observation that 'the risks were not currently manageable in the community'. The risks referred to were the risk of harm to children and the risk of re-offending. There is no suggestion in the reasons of the Parole Board that they failed to recommend his release because he had failed to discharge any burden of proof. On the contrary, the Parole Board noted all the information before them and reached a conclusion, which although not identical in language to the formulation of the Court of Appeal in Sims, is to the same effect".

36. Whilst it is true that that was a permission hearing, albeit in the context of a rolled up hearing, and the facts were plainly different, it is significant that the Judge rejected the argument pursued before me on the basis that "there is no suggestion in the reasons of the parole board that they failed to recommend his release because he'd failed to discharge any burden of proof". It is also significant that, as in the present case, the Defendant in Coney concluded its observations by stating that the Claimant's risk was not manageable in the community, a formulation which the Judge regarded as to the same effect as the language used in Sim.
37. To my mind when the DL is considered in the round, it is plain that the Defendant reached a conclusion having considered all the available material, both favourable and adverse to the Claimant, including the dossier, the Offender Supervisor's report and the oral evidence of the Claimant's Offender Supervisor at HMP Mount and the Claimant's Offender Manager and the Claimant himself. Moreover the Claimant has not identified any words in the DL that suggest the Defendant was applying anything other than a presumption in favour of release. It follows in my judgement that ground 1 is not made out.

Ground 2

38. What is said under this ground is that had there been a proper investigation, there would have been a fair assessment as to i) whether or not there was any assault, which was disputed and ii) whether in fact, if there was an assault, this lead to an evaluation of a high risk of serious harm towards the complainant. Instead, the Defendant's panel inferred, it is said, that there was a genuine assault and then relied on that inference to inform its assessment as to risk and to permit that assessment of risk to overcome the risk management plan and to set aside the 10 months spent on licence without reoffending, relying upon the interpretation of the passages in the DL relating to the assessment of current risk to which I have already referred.
39. Moreover it was submitted that the Defendant's panel failed to have regard to the nature of a 'without notice' non-molestation order, which would have been granted without any determination of the truth or otherwise of the allegation (s). Given that the Claimant had no convictions for domestic violence and there was no evidence of police call-outs, and in the absence of any reliance on the allegation of assault, it was submitted on behalf of the Claimant that there was no material on which the Defendant could properly conclude that there was a high risk of causing serious harm to an intimate partner through domestic violence. Furthermore, even if there had been an assault, it was irrational to suggest that that led to a risk of serious harm given that there were no injuries and no serious psychological harm. There had been no general offending behaviour during the 10 month licence period and the only concern could be of domestic violence of which there was no record.
40. For my part, I do not accept the submission that the Defendant inferred that there was a genuine assault. That is to mischaracterise the Defendant's reasoning. On a fair reading of the DL, it is clear that the Defendant was careful not to make any assumptions about the truthfulness or otherwise of the allegation of assault. Thus, the DL expressly notes that it was an allegation of assault, that the Claimant denied the allegation and that there were few facts available relating to the incident. Moreover, the DL fairly made it clear that the Claimant had no previous convictions for domestic violence and that there was no evidence to suggest that the police had ever attended in respect of any previous domestic incidents between the Claimant and his ex-partner. Although the Claimant suggests that the words "although" and "nonetheless" are indicative that the Defendant proceeded upon the assumption that the allegations were true, for my part I do not read the DL in that way. The words provide no basis for the suggestion that the Defendant assumed the allegation was true. Rather, they indicate a recognition on the Defendant's part that a non-molestation order did not amount to a confirmation of the accuracy of the allegation.
41. Moreover, it is clear that the Defendant deliberately avoided making any findings concerning the truth of the allegation which was treated throughout as merely that, an allegation. This was a proper approach where the context is an assessment of risk and not a finding of guilt. Given that finding, there is no need to go on to consider the Claimant's alternative submission that even if the allegation of assault was made out, that could not give rise to a risk of serious harm.
42. In my judgment there was no obligation on the Defendant, as a matter of law, to determine the factual veracity of the allegation of assault. Indeed, in many cases as here, this would in all likelihood have been impractical. That is not to say, however, that unconfirmed allegations, although of themselves insufficient to prove a risk of reoffending, cannot be a significant consideration when assessing risk.
43. It is plain from a fair reading of the DL as a whole that the basis of the Defendant's decision on risk, rather than being an inference of guilt in respect of the allegation of assault, was grounded in a large number of elements namely, the violent and premeditated nature of the index offences of burglary and ABH; an escalation in the seriousness of the Claimant's convictions over time; his failure to attend a supervision appointment; the fact of the granting of a non-molestation order and of his pleading guilty to two offences of breaching that non-molestation order; the Claimant's ignoring of the advice of his Offender Manager to have no contact with his ex-partner (notwithstanding the acknowledgement of the explanation given by the Claimant that the contact was for the purposes of arranging payment of money for their daughter); the Claimant's mixed behaviour since returning to custody, including refusing a transfer; the offender assessment system ("OASys") assessment of the Claimant as presenting a high risk of causing serious harm to a known adult and a medium risk of serious harm to children, members of the public and staff members; his presentation at the hearing including his continued demonstration of hostility to his ex-partner, accusing her of having drugs in the house, of fabricating the complaint and threatening him for money and his "limited insights into the effects of his own behaviour"; and a lack of any accredited thinking skills, work or intervention to address his involvement in the use of violence during the index offences of burglary and ABH and the fact that the low risk of violent reoffending assessed by the OASys violence predictor ("OVP") didn't take into account the violence used in the burglary and therefore underestimated that risk.
44. Taking all those factors into account the Defendant determined that the Claimant continued to present at least a medium risk of violent reoffending with a high risk of causing serious harm to an intimate partner through domestic violence. In evaluating the effectiveness of plans to manage risk the Defendant concluded in the DL as follows:-

"The panel also had significant concerns about (the Claimant) motivation and ability to comply with your licence conditions, particularly if they interfere with your ability to see your daughter. Your behaviour in committing further offences on licence suggest that you may comply superficially with supervision but continue to behave in maladaptive ways to achieve your own objectives".

45. To my mind, this second ground of challenge is also based on a mischaracterisation of the DL and it too fails.
46. For the sake of completeness, I should add that counsel for the Claimant has emphasised that the Defendant has an important and necessary duty to consider the decision on recall, and that the final paragraph of the guidance cited above at paragraph 24 must be read subject to the judgment in R (Calder) v SSJ [2015] EWCA Civ 1050 at [44]. Thus it was argued the panel by analogy ought to properly evaluate the circumstances of disputed events or allegations for itself. It is plain on a fair reading of the DL that the Defendant did consider the circumstances leading to recall which was plainly based on the two admitted breaches of the non-molestation order resulting in breaches of the licence conditions. In those circumstances, to my mind, the Defendant has discharged its duty in that regard.

Ground 3

47. I can deal with this ground shortly since this ground is linked to the second ground in that it relates to the assessment of risk of serious harm and where it is said that it was irrational for the Defendant, on the basis of the evidence before it, to conclude that the Claimant posed a high risk of serious harm to his ex-partner since there was no evidence that enabled the Defendant properly so to conclude. It was also suggested that the assessment of suitability for release ought to have been based on risk management immediately following release and not on what might happen further down the line.
48. The first point to make about this ground is that, being a rationality challenge, the Claimant faces a high hurdle given the expert nature of the Defendant tribunal and essentially for the reasons set out in respect of ground 2 the Claimant gets nowhere near reaching the requisite threshold. The decision on assessment of risk was based on a significant number of elements which taken together plainly constituted a rational decision.
49. So far as the alternative submission is concerned, this ignores the Defendant's significant concern about the Claimant's motivation and ability to comply with his licence conditions. That concern is not limited to residence outside of Approved Premises and to my mind therefore there is nothing in that alternative submission either.
50. Again for the sake of completeness, I should deal with the Claimant's alternative submission put forward for the first time in his skeleton argument that the test to be met in respect of this rationality challenge is in fact lower than Wednesbury unreasonableness. Rather it is a question as to whether the conclusion is seen to be wrong on the evidence with the court conducting a sufficiently rigorous assessment of its own to ascertain the correct conclusion on the basis of that evidence. This submission is based on dicta in recent decisions of the Supreme Court and in particular R (Yousef) v Secretary of State for Foreign and Commonwealth Affairs [2016] 2 WLR 509 and in particular in extracts from the judgment of Lord Carnwath JSC at paragraphs 55 and following:

"55 In R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] 3 WLR 1665 (decided since the hearing in this appeal) this court had occasion to consider arguments, in the light of Kennedy and Pham , that this court should authorise a general move from the traditional judicial review tests to one of proportionality. Lord Neuberger of Abbotsbury PSC (with the agreement of Lord Hughes JSC) thought that the implications could be wide ranging and "profound in constitutional terms", and for that reason would require consideration by an enlarged court. There was no dissent from that view in the other judgments. This is a subject which continues to attract intense academic debate: see, for example, the illuminating collection of essays in The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (eds) Wilberg and Elliott, 2015. It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions. Such a review might aim for rather more structured guidance for the lower courts than such imprecise concepts as "anxious scrutiny" and "sliding scales".

56 Even in advance of such a comprehensive review of the tests to be applied to administrative decisions generally, there is a measure of support for the use of proportionality as a test in relation to interference with "fundamental" rights: Keyu , paras 280–282, per Lord Kerr of Tonaghmore JSC, para 304, per Baroness Hale of Richmond DPSC. Lord Kerr referred to the judgment of Lord Reed JSC in Pham (paras 113, 118–119) where he found support in the authorities for the proposition that:

"…where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality." (Para 119.)

See also my own judgment in the same case (para 60), and those of Lord Mance JSC (paras 95–98) and Lord Sumption JSC (paras 105–109), discussing the merits of a more flexible approach in judging executive interference with important individual rights, in that case the right to British citizenship.

57 On the other hand, in many cases, perhaps most, application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review. This is particularly true of cases involving issues of national security. In Bank Mellat v HM Treasury (No 2) [2014] AC 700 (which concerned another security council regime, relating to nuclear weapons), there was not only majority and minority agreement as to the steps involved in an assessment of "proportionality" (demanded in that case by the relevant statute), but also, within that context, general recognition that on issues of national security a large margin of judgment was accorded to the Executive: paras 20–21 per Lord Sumption JSC, para 98 per Lord Reed JSC. The difference turned on contrasting views as to the allegedly discriminatory nature of the restrictions in that case. Similar considerations apply in the present case.

58 Mr Otty asks us to go further and to hold that the Divisional Court should have conducted a full "merits review" of the Secretary of State's decision. He finds support in the judgments of the Court of Appeal in Ahmed in which such a submission appeared to find favour with Sir Anthony Clarke MR and Wilson LJ [2010] 2 AC 534, 578, 587. I agree with the Court of Appeal (para 38) that those observations were made in the context of an Order made under a domestic statute, and were overtaken by the decision of this court that the Order was ultra vires. In my view, they can have no application in the present context, which concerns the Secretary of State's functions as a member of a UN committee. Even accepting that his decision is judicially reviewable, it is to the member states, as members of the committee, that the Security Council has entrusted the task of determining whether the criteria for listing are fulfilled. It would be quite inconsistent with that regime for a national court to substitute its own assessment of those matters."

51. The difficulty for the Claimant with this submission as it seems to me is that the Supreme Court itself has yet to undertake the necessary comprehensive review of the approach to challenging decisions engaging fundamental rights and to my mind, in advance of such a review, it would be premature for this court to proceed down that particular path.

Conclusion

52. It follows in my judgment that this claim for judicial review should fail.
53. I trust that the parties will be able to agree the terms of an order which reflects the substance of this judgment. Assuming that the parties do agree such an order then there will be no necessity for them to attend when this judgment is formally handed down.
54. Finally I would like to take this opportunity to express my thanks to both counsel for their very helpful submissions both in writing and orally.

Note 1   R (King) v Parole Board [2016] 1WLR 1947, CA    [Back]