The Queen (on the application of Hassan Tabbakh) (Claimant/Appellant) v The Staffordshire and West Midlands Probation Trust and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Aikens,Lord Justice Patten |
| Judgment Date | 19 June 2014 |
| Neutral Citation | [2014] EWCA Civ 827 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/2906 |
| Date | 19 June 2014 |
Lord Justice Richards
Lord Justice Aikens
Lord Justice Patten
Case No: C1/2013/2906
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Cranston
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC and Ruth Brander (instructed by Birnberg Peirce) for the Appellant
James Strachan QC (instructed by The Treasury Solicitor) for the Second Respondent
Hearing date: 2 April 2014
The appellant is a determinate sentence prisoner who is currently serving the non-custodial part of a seven year sentence imposed for an offence of preparing a terrorist act, contrary to section 5(1) of the Terrorism Act 2006. He was released on licence on 23 June 2011 after serving half his sentence. His licence included, in addition to the standard conditions, certain conditions relating to residence, reporting, curfew and electronic tagging. His judicial review challenge to the additional conditions fell away when the conditions in question were subsequently varied or removed, but he maintained a challenge under article 8 ECHR to the procedure by which they had been imposed, contending that he had not been afforded a proper opportunity to have his views taken into account at the material stage of the process. At a late stage in the court below he added to the procedural claim a contention that the policy governing the way in which additional licence conditions are decided on creates an unacceptable risk of illegality and is therefore unlawful. Both aspects of the procedural claim were dismissed by Cranston J. Permission to appeal was granted by Lewison LJ only in relation to the policy issue.
To a large extent the present appeal is academic. A challenge to the lawfulness of the policy will be of no direct assistance to the appellant, who does not complain about his remaining licence conditions and whose specific challenge under article 8 has failed, though he retains a weak personal interest in the outcome of the case in that he remains at risk of return to prison and of re-release subject to further conditions. Owing to the wider importance of the issue, however, and the fact that the case had come this far, we decided with a degree of reluctance to hear the appeal.
Ms Philippa Kaufmann QC, for the appellant, submits that there are three critical questions on the appeal: (1) what is the proper approach for determining whether a policy is unlawful by reason of the risk arising, in its application to individual cases, of unlawful decisions being taken? (2) did the judge apply the wrong test? and (3) whichever test applies, did the judge come to the wrong conclusion that the relevant policies were lawful, given the risk of unfairness arising from their application, i.e. that cases will be determined without a fair opportunity for informed representations?
Before considering those questions, it is necessary to set out the factual, policy and legal context within which they arise. One of the points that this will bring out is that we are not concerned in this case with a single "policy" but with a number of related policy documents giving guidance to the various agencies involved in the process of deciding on the conditions to be included in an offender's licence on release from prison. References to a "policy" must be treated here as a loose but convenient shorthand.
The factual history
Cranston J gives a detailed account of the factual background at paragraphs 4–24 of his judgment, from which I take the following.
The appellant came to this country from Syria. He displayed symptoms of post-traumatic stress disorder resulting from reported persecution and torture there. His conviction in 2008 of an offence contrary to section 5(1) of the Terrorism Act 2006 followed the discovery at his flat of three plastic bottles containing explosive materials, along with handwritten notes in Arabic containing instructions for their use as improvised explosive devices. The quality of the chemicals was not in fact sufficient to make an improvised explosive device but the sentencing judge said that "the fault was in the quality of the materials and not the concept".
In prison the appellant was allocated an offender manager, Mr Stephen Carmen, who worked for the Staffordshire and West Midlands Probation Trust ("the Probation Trust"). In mid-October 2010 Mr Carmen completed an OASys risk assessment. It explained that the appellant 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 as 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 appellant was given a copy of that OASys assessment at the time, as was required.
Soon after the OASys assessment the appellant's case was referred to a Multi-Agency Public Protection Arrangements ("MAPPA") meeting for management at level 3, the highest level of risk management. There were sixteen meetings of the relevant MAPPA panel between October 2010 and May 2011 at which his case was considered. His offender manager, Mr Carmen, attended the meetings.
In advance of the appellant's release on 23 June 2011 there was discussion at the MAPPA meetings of the licence conditions which would apply to him: pursuant to section 250 of the Criminal Justice Act 2003 and articles 2 and 3 of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005, a licence had to include standard conditions but could also include certain additional categories of condition. The appellant had expressed a wish to reside in London to be near a particular therapist at the Helen Bamber Foundation ("the Foundation"). That was reported to the panel, which inquired whether the Foundation could supply him with accommodation. The Foundation failed to supply timely information and so inquiries were made about the availability of a specialist therapy service in the West Midlands. The panel noted that he was continuing to self-harm but that it was superficial and had decreased as his release date approached.
The judge found, on the basis of the executive summaries of the MAPPA meetings, that the appellant knew about the MAPPA process and made representations accordingly. It was confirmed to the May 2011 meeting that he 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 were canvassed and agreed: in particular the panel considered that the conditions it agreed were necessary and proportionate to the level of risk of serious harm which he posed. A smaller professional meeting of the panel was held in June when licence conditions were discussed again. That meeting noted that he had been advised of the licence conditions and that a chaperone had been appointed for him on his release.
Dr Jonathan Shapero, the visiting psychiatrist at HMP Woodhill where the appellant was detained, attended three of the MAPPA meetings. At the May 2011 meeting he said that the appellant would struggle with life in a hostel. Dr Shapero's evidence was that he also informed the meeting that if the appellant were required to wear an electronic tag it would probably be detrimental to his health. The chair of the meeting recalled that Dr Shapero did raise the issue of the electronic tag but only to comment that the appellant would not like having to wear it. The hostel where the appellant was to live was not fully secure, which was an important reason for the electronic tag.
On 6 June 2011 Mr Carmen saw the appellant at HMP Woodhill and discussed his release plans. There was a factual dispute between Mr Carmen and the appellant, which the judge considered to be of no relevance, as to whether Mr Carmen also explained that the appellant would be required to wear an electronic tag.
On 7 June 2011 Dr JP Kenney-Herbert, a consultant forensic psychiatrist, visited the appellant at the request of the Probation Trust to assess his potential mental health needs upon release. He reported his findings on 20 June, noting that the appellant was likely to feel isolated in a hostel which would increase the risk of self-harm.
On 14 June 2011 the Secretary of State received confirmation that the Governor of HMP Woodhill had agreed the licence conditions which the Probation Trust had recommended. These included conditions as to residence at a hostel, reporting, curfew and electronic tagging. The licence provided on its face for the possibility of variation or cancellation of the relevant conditions.
On 22 June 2011 the appellant's solicitor wrote to request that the licence conditions be reconsidered, asserting that they would increase the risk of self-harm and would violate his rights under article 8 ECHR, and in particular that the condition requiring an electronic tag was not necessary or proportionate to the appellant's risk (he could be monitored by staff at the hostel) and would cause his mental health...
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