England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court Centre, 1, Oxford Row, Leeds LS1 3BG Judgment handed down at: Civil Justice Centre, 1 Bridge Street West Manchester M60 9DJ
		26/10/2018

Mr Justice Kerr :

Introduction:

1. This case is about a man convicted of manslaughter (the claimant) who wants to move back to the family home where his wife and child still live, on his release from prison on licence. Members of the victim's family live quite nearby. The victim's relatives object. The National Probation Service (the NPS, represented by the defendant) has listened to both sides and set an exclusion zone that includes the claimant's family home, a decision he says is unlawful.
2. The claimant agrees that it is lawful to set an exclusion zone, provided the decision and the zone are fairly set and proportionate. He accepts also that the NPS should hear and take account of representations from the victim's family and that reducing distress to victims and their families is a legitimate consideration. The issues before the court are whether a formal assessment of the claimant's daughter's best interests should have taken place before the decision; and whether the exclusion zone is disproportionate.

Facts:

3. The claimant was born in October 1970 and is now just 48. Until he was sentenced in July 2015, he lived in Harrogate with his wife, Mrs Clare Begley. Both have children from previous relationships. In 1992, his daughter from a previous partner was born. She lives in Harrogate. His parents live in Bridlington. The victim in the manslaughter case was Mr Paul Morrison, who lived with his wife and children, also in Harrogate.
4. In or before November 2014, the claimant punched Mr Morrison who, unfortunately, then struck his head on a stone pillar. The same night, the claimant punched another man, Mr Peter Bell, a friend of Mr Morrison. Sadly, Mr Morrison died a few weeks later. The claimant was arrested in November 2014 and charged with manslaughter and assault occasioning actual bodily harm. He was bailed to live at his parents' address in Bridlington.
5. He pleaded not guilty to the manslaughter charge. He was tried at Leeds Crown Court and convicted of both offences. He was sentenced on 2 July 2015 to six years' imprisonment for manslaughter and six months consecutive for the assault occasioning actual bodily harm. He was therefore due to be released at the half way point after three years and three months, on 1 October 2018.
6. The daughter ("S") of the claimant and his wife, was born on 6 July 2015, four days after he went to prison. Mrs Begley and S continued to live in Harrogate, where their friends and other family members on both sides still live. As early as 22 July 2015, the NPS considered the question where the claimant might live when released on licence, given the presence of both his and Mr Morrison's family in Harrogate. The claimant made it clear that he wanted to return to live with his wife and child at the family home.
7. In January 2017, an NPS officer, Mr David Vongyer, visited Mrs Begley who said that she had been visiting the claimant in prison, had no concerns about him moving back to their home when released and would share a bed with him as normal.
8. On 18 January, Mr Vongyer called the children's services department of the local authority and learned that S was not known to them and that there were no known concerns about her welfare. After a check, he received a call back from children's services confirming that there were "no safeguarding concerns", that "both parents have been worked with openly" and that children's services had no present intention to take any further action.
9. From May 2017, the claimant became eligible for "resettlement overnight release" (ROR), a form of release on temporary licence (ROTL). He was permitted to spend some nights at the family home with Mrs Begley and S. In early July 2017, he was admitted to hospital in Middlesbrough for surgery. He also attended a hospital appointment there over the weekend of 30-31 July. That same weekend, friends of Mr Morrison's next of kin thought, mistakenly, they had seen the claimant at large in Harrogate.
10. The next of kin reported this concern to the NPS in early August 2017 and asked to be consulted in her capacity as a member of the victim's family, about the terms of the claimant's forthcoming release on licence. This is normal practice, in accordance with the defendant's Victim Contact Scheme. The NPS ascertained that the claimant had not been on ROTL in Harrogate that weekend. He had been in prison or at the hospital.
11. On 25 October 2017, the NPS considered the question of a possible exclusion zone for the claimant on his release. Representations from Mr Morrison's next of kin were being considered and there was a concern the claimant might be subject to reprisals. It was noted that if he went to his home address by train, he would have to pass through the centre of Harrogate and that should he encounter members of Mr Morrison's family, "great emotional harm" to them might result.
12. The NPS decided to tell the claimant that ROR at his home address could no longer take place; that it would not support release on licence to that address; and that the size of a possible exclusion zone covering the area was being considered. Mr Vongyer gave this news to the claimant during a prison visit on 8 November 2017. The claimant reacted with disappointment and mentioned possibly relocating to Knaresborough.
13. From 8 January 2018, the claimant's solicitors began corresponding with the NPS on the subject of an exclusion zone. The solicitors objected to any zone which would include the claimant's family home in Harrogate. In response to a pre-action protocol letter of 5 February 2018, Mr Mark Gibson of the NPS engaged in "the process of reviewing the exclusion zones" and explained that "this will require further communication with the victims …".
14. After conducting a "full review" and having considered representations from both sides, Mr Gibson wrote on 5 March 2018 informing the claimant's solicitors of the outcome. He rejected the victims' request for an exclusion zone comprising the whole of North Yorkshire. However, he accepted that Harrogate should be within the zone, pointing out that the deceased's partner worked there at the hospital, in an outreach capacity requiring her to travel outside the grounds, did much of her shopping in Harrogate and was in fear of seeing the claimant.
15. Mr Gibson therefore ruled out a return to the family home, which is within the town of Harrogate. He said it was his "assessment that given the location of his partner's accommodation if he were to return to live there, even with an exclusion zone from the centre of Harrogate there is a likelihood of contact with one or more of the victims".
16. Mr Gibson said he had considered the rights of the claimant's family; in particular, "the rights of his children to have as much of a normal family life as possible"; but had concluded that did not mean the claimant should have the right to live at the property. He could go there with a "set access route and set dates, times authorised by his probation officer".
17. The exclusion zone would also include Ripon, where Mr Bell lived, and Burton Leonard, where one of Mr Morrison's daughters, resident in Leeds, often stayed at the home of other members of her family. Like all licence conditions, the exclusion zone would be subject to review throughout the licence period.
18. The claimant's solicitors responded with a further lengthy pre-action protocol letter, objecting to Mr Gibson's decision. In response, Mr Gibson wrote on 3 April 2018, explaining that on release the claimant could request visits to the family home, the "length and frequency" of which would be a matter for discussion, taking account of "victim issues". The access route and any restrictions on movement would also need to be considered. The licence conditions would be reviewed every three months, or sooner if there was a relevant change of circumstances.
19. The present challenge was then brought in June 2018. Her Honour Judge Belcher granted permission on the papers in July 2018, commenting that the "proportionality challenge" was "reasonably arguable" though the court would "recognise the knowledge and skills of the decision maker in this area". She observed that although the decision would strictly be that of the prison governor on release, that decision might well merely "rubber stamp" the decision of the NPS.
20. The claimant was released on licence on 1 October 2018, a few days before the hearing of his substantive judicial review took place before me in Leeds. His licence conditions were, I was told, the same as those decided upon by Mr Gibson when he reviewed the proposed conditions and stated them in his letters sent in March and April 2018.

Law and Policy:

21. Prisoners are (normally, and in this case) released on licence half way through their sentence: Criminal Justice Act 2003 (the 2003 Act), section 244. The licence lasts for the rest of the sentence: section 249(1). Release on licence is subject to "standard conditions" and "prescribed conditions": section 250. The latter are prescribed by the Secretary of State. I need not go into the details here. The prisoner must comply with the conditions: section 252(1); and may be recalled to prison: section 254(1).
22. The current received wisdom on the setting of licence conditions is found in a document comprising instructions to providers of probation services, issued by the National Offender Management Service (NOMS) and last revised in April 2015. It is entitled Licence Conditions and Temporary Travel Abroad. The content of the document is not criticised by the claimant. It is, he accepts, "Convention compliant" if properly followed.
23. The instructions set out in the document reflect the requirement in article 8(2) of the European Convention that in setting particular conditions for prisoners released on licence, any interference with the right to respect for private and family life must be:

"… in accordance with the law and … necessary in a democratic society in the interests of national security, public safety or the economic well-being 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."

24. At paragraph 2.13, it is emphasised that bespoke licence conditions must be necessary to enable the supervising officer to manage the risks identified and that "no other less onerous condition will suffice"; and that such conditions must be proportionate, so that any restriction or loss of liberty must be:

"proportionate to the level of risk presented by the offender [and] that no other less intrusive means of addressing the risk is available or appropriate. The condition cannot go further than is necessary to manage the risk".

25. Section 11 of the Children Act 2004 (the 2004 Act) requires numerous public bodies, including a local probation board, to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children; and, in discharging that duty, they must have regard to guidance from the Secretary of State. The current guidance issued under (among other provisions) section 11(4) of the 2004 Act, is Working Together to Safeguard Children, published in July 2018.
26. That guidance document emphasises the need for early help to provide support as soon as a problem emerges; and (at paragraph 17) the need to make a referral to local authority children's social care immediately if there is a concern that a child is suffering significant harm or is likely to do so. There is much good advice on conducting assessments of a child's needs and the risks the child may face: see paragraphs 44 and following.
27. At paragraph 52, a systematic approach to enquiries using a "conceptual model" is recommended, to investigate three "domains": the child's developmental needs; the capacity of parents, carers and others to respond to those needs; and "the impact and influence of wider family and any other adults living in the household as well as community and environmental circumstances".
28. The specific context of offenders managed by a probation service is addressed in chapter 2, dealing with organisational responsibilities, at paragraphs 39-42. The focus, not surprisingly, is on the protection of children against risk from offenders who may have offended against a child and may, on release, have caring responsibilities or other contact with a child. Emphasis is given to the need to check with local authority children's services whether a child is known to them and to obtain relevant knowledge.
29. I was referred to various cases in the course of argument, dealing with the scope and effect of this body of law and policy. I will return to some of them shortly, in considering the contentions of the parties and my reasoning and conclusions.

Issues, Reasoning and Conclusions:

30. For the claimant, Mr Matthew Stanbury submitted, first, that a formal "best interests" assessment should have been carried out to establish what was in S's best interests. He argued that section 11 of the 2004 Act, supplemented by the guidance, required the NPS's duties to be "discharged by the Defendant commissioning an assessment by Children's Services".
31. Mr Stanbury argued that S's best interests were paramount and the assessment would need to include her emotional development and family relationships. The issue was not just whether a parent presents a risk to a child. It is also necessary to consider whether the absence of the parent undermines the child's welfare. He referred me to the decision of Ryder J (as he then was) in Westwater v. Secretary of State for Justice [2010] EWHC 2403 (Admin).
32. There, the issue was the lawfulness of restrictions on contact between a sex offender serving a prison sentence and his young daughter. Face to face and telephone contact had previously been permitted but was withdrawn after the claimant was transferred to another prison. The claimant was then allowed contact by correspondence only, a restriction the judge held to be unlawful because the interference with article 8 rights had been imposed without the multi-agency assessments described in the relevant guidance.
33. If such assessments are not undertaken, a decision to restrict contact (see Ryder J's judgment at [49]):

"is likely to be arbitrary and lacking in the justification necessary for the interference which, one should recollect, would be both as respects the prisoner and the child whose personal relationship and direct contact with both parents is interrupted."

34. The judge emphasised at [52] that where a social worker who makes the decision "has no apparent responsibility for the case and has not addressed the essential questions which are in play [she] provides no reliable material unless she conducts an assessment". In the case before him, no such assessment had been conducted and the "essential questions" had not been addressed at all.
35. Mr Stanbury argued that the impact of the separation between father and daughter, and the desirability of reuniting them after the claimant's release on licence, has not been assessed. He submitted that the exclusion zone severely restricts contact between S, now aged three, and the claimant. The NPS ought to have commissioned the local authority children's services department to assess the impact of the continued separation on S's welfare.
36. As in the Westwater case, Mr Stanbury says, the NPS did not obtain the information necessary to carry out the article 8 balancing exercise. The NPS failed to ask itself what impact the claimant's absence from home is having on S's welfare. How did she cope when contact was resumed in the spring of 2017 but then terminated again in the autumn of 2017?
37. Secondly, Mr Stanbury submits that the court must assess whether the decision made by the NPS properly balanced the interests of the claimant and his family against those of Mr Morrison's family. He referred again to the interest of S in having her father living with her and to that of Mrs Begley in enjoying a normal family life with her husband. He referred to the concerns that weighed in favour of an exclusion zone that included Harrogate, and therefore the claimant's family home and submitted that they did not justify the extent of the exclusion zone imposed.
38. Those concerns arose from the perceived risk of an encounter. A daughter of Mr Morrison worked for the Highways Agency and her work took her throughout North Yorkshire. His other daughter visits the family home in Burton Leonard. His son has a criminal record and has made threats against the claimant. And Mr Morrison's widow works at Harrogate Hospital (though, it turns out, not in an outreach capacity) but does much of her shopping in the town centre.
39. Mr Stanbury submitted that Mr Gibson had overstated the risk of an encounter and should have dismissed it as de minimis. At any rate, he said, it could easily be reduced to a de mimimis level by excluding the claimant from attending the hospital in Harrogate, other than by prior appointment or in a medical emergency, and by excluding him from entering Harrogate town centre. Those restrictions would meet the risk of an encounter without barring him from living at his family home.
40. In oral argument, Mr Stanbury added some further points. He pointed out that the standard of review is that alluded to by Lord Bingham in R (SB) v. Governors of Denbigh High School [2007] 1 AC 100, at paragraph 30:

"… the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 25–28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 62–67. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, para 51. As Davies observed … 'The retreat to procedure is of course a way of avoiding difficult questions'. But it is in my view clear that the court must confront these questions, however difficult. The school's action cannot properly be condemned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and properly so."

41. Furthermore, Mr Stanbury submitted that the setting of licence conditions, including an exclusion zone, is not an exercise in which the NPS can be said to possess particular expertise over and above that available to the court. The latter is as well placed as the NPS to determine the extent of the risk of a chance encounter between the claimant and a member of the victim's family. It may be otherwise where expert professional assessment is required and is carried out. But this is not such a case, he submitted.
42. After I had provided a first draft of this judgment, Mr Stanbury sought to add to his submissions on proportionality, arguing that there was missing here the necessary rational connection between the fear of an encounter entertained by the victim's relatives and the measures put in place to prevent such an encounter. If the fear of an encounter was unfounded, he said, it could not be rationally connected to the exclusion zone. Further, he submitted, the zone was not the least intrusive measure that could meet the objective of protecting the victim's relatives from an encounter.
43. Mr Cohen, for the defendant, did not accept that the court was in as good a position as the decision maker to exercise the "fine judgment" by those "experienced in such matters" required when setting licence conditions; the matter was "not for the courts". These phrases had emerged from the judgment of Moses J (as he then was) at [32]-[33] in R (Carman) v. Secretary of State for the Home Department [2004] EWHC 2400 (Admin).
44. Mr Cohen pointed out that, in R (X) v. Secretary of State for Justice [2017] EWCA Civ 155, the need to protect the court from "spurious time-consuming and expensive challenges" (per Moses J in Carman at [33]) had been said by Davis LJ at [47] to "deserve emphasis". Mr Cohen also reminded me that it was officers of the NPS and the Victim Contact Unit, not the court, who had conducted the discussions with the claimant and the next of kin to his victim. The margin of their discretion was therefore wide.
45. They, not the court and still less the claimant, were best placed to assess not just the objective risk of an encounter but the subjective fear of one that might reasonably be entertained by a member of the victim's family. The judgment of Stanley Burnton J (as he then was) in Craven v. Secretary of State for the Home Department, transcript, 5 October 2001, at [25] stands (as the claimant accepts) as authority that distress to a victim or, by extension, the family of a deceased victim, is a legitimate consideration.
46. Mr Cohen submitted that there was no obligation on the NPS to conduct, or ask local children's services to conduct, a formal assessment of the needs and welfare of S before setting the exclusion zone. Section 11 of the 2004 Act did not bear the weight the claimant sought to place upon it. The obligation it imposes is general; it does not dictate a particular method of decision making in the case of a particular child in a particular context.
47. Nor, Mr Cohen argued, does section 11 require a child's interests to be treated as paramount and of overwhelming weight in the present context, as would be the position in other contexts such as, for example, that provided for by section 1 of the Children Act 1989, where a court determines any question with respect to the upbringing of a child or the administration of a child's property, and the child's welfare is expressly stated to be paramount.
48. Here, the context was completely different. The starting point was, as recognised in R (X) v. Secretary of State for Justice, that the claimant will still, after release on licence, be serving a prison sentence. Release on licence is not an alternative to liberty but an alternative to remaining in prison (per Davis LJ at [32], adopting counsel's submission).
49. Furthermore, said Mr Cohen, the Westwater case was not in point. There, the issue was the risk that allowing contact between daughter and father might present to the daughter. Here, everyone agrees that there is no reason to perceive such a risk. That was established by the NPS's enquiries of local children's services in January 2017. The inevitable separation between father and daughter resulted from the father's prison sentence.
50. The balancing exercise, for the purpose of setting licence conditions, was undertaken on the basis that resumed family life at the Harrogate family home was weighed on the claimant's side of the balance. That included weighing the interest of S and of Mrs Begley alongside that of the claimant himself. Their interests, said Mr Cohen, were properly weighed against, on the other side of the balance, the interests, fears and concerns of Mr Morrison's family. There was no basis, said Mr Cohen, for the court to overturn the decision of the NPS as to how the balance should be struck.
51. The NPS had rejected as disproportionate the suggestion that the exclusion zone should comprise the whole of North Yorkshire. The situation was temporary; it would last only for three years and three months, from 1 October 2018 until 1 January 2022 when the claimant would finish serving his sentence of six and a half years. There was no ban on contact between the claimant and his family; it could take place outside the exclusion zone or, by special arrangement, within it.
52. I come to my reasoning and conclusions. In my judgment, the NPS was not required to ask children's services to carry out an assessment of S's interests and welfare before setting the limits of the exclusion zone. I think Mr Cohen is right to say that the child's interests are not necessarily paramount in the present context. Section 11 of the 2004 Act does not say that they are, unlike section 1 of the Children Act 1989 in a case where a family court has to determine a question with respect to a child's upbringing.
53. The NPS rightly made enquiry of local children's services to determine whether there was any reason why the claimant should not go back to live with his daughter, S. Having learned that there were no safeguarding concerns, it was proper for the NPS to proceed on the basis that the desirability of resumed family life under the same roof was a factor weighing in the claimant's favour.
54. There was no further dimension to be explored in relation to the claimant's family life and that of his wife and daughter. It might have been otherwise if, for example, Mrs Begley was having difficulty in caring for S and might become unable to do so in the family home if the claimant should not return to live there. Had that issue arisen, the NPS would have been obliged to consider it and weigh it in the balance. But no issue of that kind arose here.
55. In my judgment, the guidance to which I have referred, issued under (among other provisions) section 11 of the 2004 Act and applicable to, among other bodies, a local probation board, has little relevance to a case where the prisoner to be released on licence has a normal family life he wishes to resume and there are no special concerns to be considered in the event that he is able to do so.
56. In such a case, the prospect of resumed normal family life will nearly always be a factor in favour of the soon-to-be-released prisoner being allowed to return home. That was the position here. The NPS rightly recognised this and weighed it in the balance as a factor favouring the claimant. It was appreciated that it would be less than ideal for him to have to see his daughter away from the family home or only by special arrangement; but better than him not being able to see her at all.
57. The Westwater case was different. There, there was a perceived risk that unrestricted face to face contact between the incarcerated sex offender and his young daughter might present a risk to the latter, but that risk was not properly assessed. Here, the question of any risk was enquired into and it was found that there was none. In the X case, the perceived risk was that the prisoner, once released on licence, would radicalise his children. But the risk had, unlike in the Westwater case, been properly assessed and the balance properly struck.
58. I then come to the question of proportionality. Mr Stanbury is not correct to characterise the situation as one where S is barred from seeing her father. She was not prevented from visiting him in prison while he was accommodated there and has not, since his release on licence, been prevented from seeing him away from the family home or, by special arrangement, at the family home. I accept that this is not a convenient arrangement, but it is not a bar to contact between father and daughter.
59. I accept Mr Stanbury's submission that the correct approach in a case such as this is that stated by Lord Bingham in the Governors of Denbigh School case, at [30] which I have quoted above. The standard is an objective one and the court must decide whether it has been met. The court's role is supervisory, but the standard of review is not the same as Wednesbury standard or a heightened standard of "anxious scrutiny".
60. I wish to emphasise, however, that the review jurisdiction of the court is just that. It is not the merits based approach recommended to me by Mr Stanbury, when he suggested that the court was as well placed as the NPS to strike the balance required for the setting of licence conditions. That is contrary to the approach of Moses J in the Carman case, expressly endorsed as deserving of emphasis by Davis LJ in X, last year.
61. It is the NPS, not the court, which is entrusted with the task of setting licence conditions for released prisoners. The margin of appreciation enjoyed by the NPS is, as Mr Cohen rightly submits, considerable. The balancing exercise is undertaken with full knowledge of the evidence gathered, including any evidence of concerns of the victim's family and any distress that may be caused in the event of an encounter with the released prisoner even if, objectively, such an encounter is quite unlikely to occur.
62. I do not accept Mr Stanbury's submission to the effect that if the likelihood of an encounter is objectively unfounded, subjective fear and distress at the prospect of one is necessarily to be disregarded and that an exclusion zone aimed at alleviating fear and distress of the victim's family must then be over-intrusive and disproportionate. That submission confuses subjective distress and fear with objective risk. The exclusion zone properly addressed the low risk of a traumatic encounter coupled with a high probability of distress at the prospect of one.
63. In the present case, the officers of the NPS in the process culminating in Mr Gibson's review and the explanations he gave in correspondence, struck a fair balance between the competing interests. He did not overlook the interests of S and Mrs Begley. He gave them due weight. He was justified in finding them outweighed by the concerns of the victim's family, for the remaining three years and three months of the claimant's sentence, unless the conditions are altered on review.
64. If they are not altered, the claimant's family life will be disrupted but not unlawfully. This is another case where the hard pressed probation service has had to defend itself against a claim that, though found arguable, on closer examination has turned out to be unfounded. In practice, cases where the balance is incorrectly struck will be exceptional. The case is not exceptional. The decision challenged was lawful. The application for judicial review is dismissed.