R (on the application of Hassan Tabbakh) v The Staffordshire and West Midlands Probation Trust Secretary of State for Justice The London Probation Trust (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 09 August 2013 |
| Neutral Citation | [2013] EWHC 2492 (Admin) |
| Docket Number | Case No: CO/8641/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 August 2013 |
and
[2013] EWHC 2492 (Admin)
Mr Justice Cranston
Case No: CO/8641/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC and Ruth Brander (instructed by Birnberg Peirce) for the Claimant
Conrad Rumney (instructed by Staffordshire and West Midlands Probation Trust) for the First Defendant
James Strachan QC (instructed by Treasury Solicitors) for the Second Defendant
Hearing dates: 11 and 19 July 2013
Approved Judgment
Introduction
This claim concerns a challenge to the process by which additional licence conditions were attached to the claimant's licence on his release from prison. He is serving the non-custodial part of a seven year sentence imposed for an offence of preparing a terrorist act. He was released automatically on licence on 23 June 2011, having served half his sentence. The claimant contends that he had no meaningful opportunity to participate in the process when his licence conditions were determined and that this constitutes a breach of the procedural guarantees under Article 8 of the European Convention on Human Rights (the "ECHR" or "the Convention"). The claim was presented as a test case.
The additional licence conditions imposed on the claimant's licence were formally imposed by the Secretary of State for Justice ("the Secretary of State"), the second defendant, upon the recommendation of the Staffordshire and West Midlands Probation Trust ("the Probation Trust), the first defendant. In accordance with standard practice, the claimant's offender manager while he was in prison proposed the conditions and provided these to the Governor of the prison as the representative of the Secretary of State. In deciding on conditions the Governor is guided by the Probation Trust, since it is responsible for undertaking the risk assessment which informs the licence conditions. The Governor does not normally add licence conditions beyond those requested by the Probation Trust or change the wording other than to ensure that the standardised wording from the prison and probation instructions is followed. If the Governor or other prison staff have information related to risk or specific concerns regarding the offender's release into the community, this will be shared with the offender manager prior to the initial drafting of the conditions. Given his offending and the risks he posed, the claimant was one of the relatively small number subject to the Multi-Agency Public Protection Arrangements ("MAPPA"). His licence conditions were discussed at MAPPA meetings.
This judicial review has been transformed since it was originally lodged in September 2011. As well as the procedure by which the licence conditions came to be imposed, which was Ground 4 of the claim, the claim as lodged challenged the licence conditions themselves. In particular, the claimant was objecting to conditions of residence in a probation hostel in Birmingham; electronic tagging; and reporting at 11am and 3pm every day, in addition to a curfew from 7pm to 7am. It was the claimant's case that these conditions prevented him from accessing his preferred treatment for his post traumatic stress disorder, which was available in London but not in Birmingham. In addition, the claimant perceived his electronic tagging device to be monitoring his conversations, telephone calls and contacts. In the intervening period these conditions have either been removed or varied: the electronic tag was removed on 9 February 2012, and since 29 October 2012 the claimant has been able to travel to London to receive treatment from his preferred therapist. In light of these developments, the claimant no longer pursues his challenge to the original conditions. However, the claimant maintains his procedural challenge, Ground 4, by reference to Article 8 of the Convention. He has abandoned a similar claim under Article 6 of the Convention in the light of R (on the application of King) v Secretary of State for Justice [2012] EWCA Civ 376; [2012] 1 WLR 3602.
Background
The claimant came to this country from Syria. He displayed symptoms of post traumatic stress disorder resulting from reported persecution and torture there. In 2008 he was convicted in the Crown Court at Birmingham of preparing a terrorist act contrary to section 5(1) of the Terrorism Act 2006. Three plastic bottles containing explosive materials were found at his flat along with handwritten notes in Arabic containing instructions for their use as improvised explosive devices. Translated lines in the Arabic notes with the bottles included statements such as "I pray that Allah would keep you safe and grant you success in your work for the sake of Allah". When he was arrested he had recorded speeches of persons such as Osama Bin Laden. His defence at trial was that he had been preparing a firework. The jury clearly rejected that. As it turned out the standard of the chemicals which the claimant had obtained was not sufficient to make an improvised explosive device but was capable of making an incendiary device. In sentencing him the judge said that "the fault was in the quality of the materials and not the concept".
In prison the claimant was allocated an offender manager, Stephen Carmen, who is with the Probation Trust. (Mr Carmen was transformed into his probation supervisor after his release from prison). In mid October 2010 Mr Carmen completed an OASys risk assessment explaining that the claimant refused to address his offending behaviour and would not accept responsibility for it. He posed a high risk in the community and the risk was likely to be greatest if he were released without stringent supervision. The risk remained the same that it was at the point he was arrested. If he could not get his own way, or if he felt staff treated him inappropriately, he threatened self harm or suicide. He was not prepared to take medication for his psychiatric condition. He had a history of poor behaviour. The claimant was given a copy of this OASys assessment.
Soon after the OASys assessment the claimant was referred to a Multi-Agency Public Protection Arrangements ("MAPPA") meeting for management at level 3, which is the highest level of risk management. That was the first of sixteen meetings of the MAPPA panel held in Birmingham in October 2010 — May 2011 to discuss the claimant. MAPPA is explained further below but at this point it should be noted that the claimant's offender manager, Mr Carmen, attended the meetings. There are executive summaries of those meetings. These show, first, that the claimant and his offending were considered. It was reported to the meeting that the claimant denied any terrorist activity. A diagnosis of emotionally unstable disorder was canvassed. At one point it was thought that the claimant would be deported, subject to his immigration appeal.
Secondly, the MAPPA summaries show that there was discussion in the meetings in advance of his release on 23 June 2011 of the licence conditions which would apply to him. The claimant had expressed his wish to reside in London to be near a particular therapist at the Helen Bamber Foundation ("the Foundation"). That was reported at the MAPPA panel, which inquired whether the Foundation could supply him with accommodation. The Foundation failed to provide timely information and so inquiries were made about the availability of a specialist therapy service in the West Midlands. The panel noted that the claimant was continuing to self harm but that it was superficial and had decreased as his release date approached.
It is evident from the executive summary that the claimant knew about the MAPPA process and made representations accordingly.
"It was evident that the prison staff had made [the claimant] aware of the fact he was discussed at MAPPA panel and [he] had asked staff about the MAPPA process. [The claimant] relayed to the panel in February [2011] that he wanted the panel to be aware he can become agitated. It was reported and noted that [he] was paranoid about being released to an Approved Premises as he thinks he will be killed by the Government. [He] is upset he is assessed as a risk to the community."
It was confirmed to the May 2011 panel meeting that the claimant was aware of the MAPPA discussions about the release plans being made for him. At that meeting the impracticability of release to London was discussed in the light of the failure of the Foundation to provide information. Licence conditions for the claimant on his release were canvassed and agreed. In particular the panel considered that the licence conditions it agreed were necessary and proportionate to the level of risk of serious harm which the claimant posed. A smaller professional meeting of the panel was held in June when licence conditions were discussed again. That meeting noted that the claimant had been advised of the licence conditions and that a chaperone had been appointed for him on his release. In the latter part of May the UK Border Agency said that it would not attempt to deport the claimant.
The visiting psychiatrist at HMP Woodhill, where the claimant was detained, Dr Jonathan Shapero, attended three of these MAPPA meetings. At the meeting on 23 May 2011 Dr Shapero said that the claimant would struggle with life in a hostel. Dr Shapero says that he also informed that meeting that if the claimant were...
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