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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Cranston
 EWHC 2492 (Admin)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||19th June 2014
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE AIKENS
LORD JUSTICE PATTEN
|| The Queen (on the application of Hassan Tabbakh)
||- and -
(1) The Staffordshire and West Midlands Probation Trust
(2) The Secretary of State for Justice
(Transcript of the Handed Down Judgment of
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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
The First Respondent did not appear on the appeal
HTML VERSION OF JUDGMENT
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Lord Justice Richards :
- 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 to deteriorate and would increase the risk of self-harm. The letter was accompanied by a letter from Dr Michael Korzinski of the Foundation, who said that the electronic tag would seriously affect the therapeutic process since the appellant would see it as a device to persecute him and listen to his conversations. The Probation Trust replied on 8 July 2011 to the solicitor's letter, stating that the licence conditions had been regularly reviewed by MAPPA and were considered to be proportionate for the early stages of the appellant's release; the conditions would be reviewed at regular intervals, taking into account the risk that the appellant presented and also his health. The letter acknowledged the concerns raised about his mental state and the impact the electronic tag would have on it. It said that a transfer to London was possible but reports from Dr Korzinski were still awaited. The appellant had been seen by local mental health services.
- Meanwhile, on 23 June 2011, the appellant was released from prison. At the time of his release he signed a form confirming that the licence conditions had been provided to him and the requirements explained.
- I can deal more briefly with events following release. There was a continuing process of update and review. In mid-August 2011 the Secretary of State was sent a letter before claim together with a copy of a report dated 10 August 2011 by Dr Shapero stating that the appellant suffered from post-traumatic stress disorder and that the only therapist he trusted was Dr Korzinski; the appellant was severely troubled by the electronic tag, which he believed monitored not only his position but also his conversations, and as a result he was in a state of constant anxiety which increased the likelihood of self-harm. Dr Shapero said that if matters remained unchanged he would have concerns that the risk of serious self-harm or a suicidal attempt might rapidly escalate. On 22 August 2011 Mr Carmen (whose role following the appellant's release had become that of his probation supervisor) met the appellant at the hostel, in particular to discuss Dr Shapero's report. The appellant explained that his self-harm was superficial and that this mood was variable but he was not feeling suicidal. At its September 2011 meeting the MAPPA panel reviewed the licence conditions. The panel could not see any reduction in risk, noting that the appellant was still not engaging with local mental health services. It considered that the electronic tag was still required, given the high level of risk of further serious harm, but agreed to the removal of one of the daily curfews in order to test the appellant's compliance and responsibility for his own actions. Further MAPPA meetings in 2011 led to the same decision with regard to the electronic tag. There was a further assessment by Dr Kenney-Herbert. Dr Korzinski also detailed his views about the appellant's condition and treatment needs, recommending weekly sessions of therapy with him.
- Eventually, in February 2012, the MAPPA panel agreed to the gradual amendment of the curfew and to the removal of the electronic tag. It considered that there had been no decrease in risk but these steps were to acknowledge that the appellant had complied with his licence conditions and were designed to test and monitor his risk. The claimant began visiting Dr Korzinski in London. From January 2013 the curfew condition was removed altogether, save for a minimal night-time curfew.
The policy framework
- The procedure described above took place within the framework of various policy documents giving guidance respectively to the Probation Service, the Prison Service and the agencies involved in MAPPA. The policy documents in force at the time when the appellant's licence conditions were decided are summarised at paragraphs 29-41 of Cranston J's judgment. Because this case has become a challenge to the lawfulness of the existing "policy", the primary focus needs now to be on the current policy documents; but subject to one area of dispute considered below, the differences do not appear to be material.
- The current Probation Service guidance in respect of licence conditions is contained in Instruction PI 20/2012 issued by the National Offender Management Service on 6 December 2012. Paragraph 1.5 states that the Instruction has been issued to ensure that sufficient advice has been given to enable staff accurately to assess whether licence conditions are necessary and proportionate on a case by case basis and that the appropriate staff are aware of, inter alia, standard licence conditions, the menu of additional licence conditions available to facilitate effective risk management, the menu of bespoke licence conditions available, if necessary, in respect of extremist offenders, and the process for approving additional and bespoke licence conditions.
- Paragraph 1.8 lists a number of mandatory requirements, including the following. Offender managers must ensure that any additional condition for determinate sentence prisoners is necessary and proportionate in order to manage and/or reduce the risk of further offending of any nature. Six months prior to release (in MAPPA cases) offender managers must contact the local police and the relevant victim unit and take into account MAPPA meetings to establish if there is a case for additional licence conditions, though the final responsibility for recommending licence conditions rests with the probation provider. Offender managers must explain each condition of the licence and consequences of breach on the first occasion the offender reports after release from custody.
- Section 2 of the Instruction includes more specific guidance in relation to additional licence conditions. It makes clear at paragraph 2.9 that it is for the offender manager to make requests for additional conditions as part of the risk management plan and that the only conditions that may be approved are those necessary and proportionate to the management of the offender's risk in the community. Paragraph 2.17 spells out that MAPPA meetings do not have the authority to set licence conditions and that any requests for conditions that arise during the course of a MAPPA meeting should be treated as suggestions for consideration. If the offender manager accepts the inclusion of the proposed condition it should be included in the proposed licence. A procedure is set out for cases where the offender manager does not agree with the MAPPA-proposed condition. Paragraph 2.50 states that when explaining licence conditions to offenders, staff must ensure that the offender understands any such conditions, and that this is particularly important with additional and bespoke conditions as they may contain complex or detailed requirements.
- The current Prison Service guidance in respect of licence conditions is contained in Instruction PSI 40/2012 issued by the National Offender Management Service on 6 December 2012. In broad terms it gives guidance to prison based staff corresponding, so far as material, to that given to Probation Service staff by Instruction PI 20/2012. Paragraph 2.8 states that offender managers must complete the specified form when requesting licence conditions and must provide a full explanation as to why additional conditions are deemed necessary and appropriate. Wherever possible this must be completed by no later than 28 days before the offender's release. Paragraph 2.10 states that prison governors must only approve requests for licence conditions and must not insert conditions that have not been submitted to them. Paragraphs 2.35 and 2.36 require prison staff to ensure that one copy of the licence is given to the prisoner on discharge and to ensure, when explaining licence conditions to offenders prior to release, that the offender understands any such conditions.
- The current MAPPA guidance document is MAPPA Guidance 2012, Version 4. Of particular relevance is section 12, headed "Risk Management Plan". Paragraph 12.1 states that effective risk management is a core function of MAPPA and that achieving it requires all agencies to share relevant information. Paragraph 12.2 explains that risk management is the construction and implementation of a plan which addresses the identified risk factors. Paragraphs 12.16-12.18 are preceded by the words "Standard: It is important to recognise the critical contribution that offenders make to change their behaviour". They read:
"12.16 Offenders and their carers or partners should not become distracted from the process of assessing and managing the risks they present. It is good practice for offenders to know that they are being managed through MAPPA, what MAPPA is, and what this means for them. The MAPPA leaflet Information for Offenders should be used for this purpose. This responsibility should be discharged by the Offender Manager or Case Manager primarily involved with the offender.
12.17 It may be helpful to invite the offender to write down, or pass on, information for discussion at a level 2 or level 3 meeting, if he or she is aware of being managed at that level.
12.18 There are some cases where information about MAPPA should be withheld from the offender on the ground that it may increase his or her risk …."
- Paragraph 12.19 states that as a general principle the human rights of offenders should not take priority over public protection and that in particular it is considered that the presence of an offender at a MAPPA meeting could significantly hinder the core business of sharing and analysing information objectively and making decisions accordingly. Paragraphs 13.12-13.13 provide, however, that Probation Trusts should attend all level 2 and level 3 meetings and that where the Probation Trust manages the case the offender manager responsible for the case must attend or, if not available, must agree with his or her line manager who can attend instead. Paragraphs 13.37-13.49 relate to the possibility of requests under the Data Protection Act 1998 by an offender or others for copies of the minutes of MAPPA meetings.
- The MAPPA Guidance 2009, which was in force at the time when the appellant's original licence conditions were imposed, was worded differently in some respects. The materiality of one difference is the subject of dispute. It concerns paragraph 4.8 of the 2009 guidance, headed "The Offender's Role". The paragraph contained points similar to, but somewhat fuller than, those referred to above. After stating that offenders should be excluded from MAPPA meetings, it continued:
"The offender should, however, be allowed the opportunity to present written information to the MAPP meeting through their offender/case manager or for this person to provide information on their behalf."
It then stated that it was good practice for offenders to know that they are being managed through MAPPA, what MAPPA is and what this means for them, and who should discharge this responsibility. It continued:
"Engaging the offender in the reality of risk management can be very productive, although it will not be appropriate for every offender. Offenders should not only be seen as part of the problem as they can be a very important part of the solution in protecting the public. The RA [responsible authority] should ensure that there is a clearly stated mechanism for informing offenders, both before and after MAPP meetings, and that the information shared is fully recorded in minutes and case records."
- In addition to those guidance documents, we were referred to the May 2006 version of The National Offender Management Service's "Offender Management Model". Whilst that document highlights the role of the offender manager in working with the offender and others, notably in sentence planning, it deals with matters at a relatively high level of generality and I do not think it necessary to refer to any particular passages in it.
The appellant's complaint
- The essential complaint made by Ms Kaufmann is that the policy documents described above contain no provision for an offender to be informed in advance of proposed additional licence conditions and of the basis on which their inclusion is proposed, and to be given an opportunity to make informed representations about them before any decision is reached; nor do the documents contain anything to alert probation officers or others involved in MAPPA that fairness may require such steps to be taken. The guidance only imposes a duty to inform the offender of the licence conditions after the event.
- That complaint is advanced against the background of Cranston J's findings, at paragraphs 53-69 of his judgment, as to the procedural requirements of article 8 ECHR. For the reasons set out in those paragraphs the judge found the position in principle to be as follows:
"64. As a matter of principle it seems to me that the procedural rights contained in Article 8 can be engaged in fixing an offender's licence conditions. What is required is an assessment of their nature and practical effect in each case. The requisite procedural rights are the very basic the law requires so that the offender is able to make meaningful representations. As Ms Kaufmann QC for the claimant conceded there is no need for the claimant's presence or for oral representations, and there is no requirement for licence conditions to be fixed by an independent body such as the Parole Board. As well, in accordance with principle, the offender's procedural rights must give way in certain circumstances such as urgency. Moreover, the impact which representations can be expected to have will be limited in an area such as this where the assessment of risks is … quintessentially one of judgment. Where offenders are considered to pose a significant risk of serious harm to the public, those convicted of terrorist offences being a paradigm case, the restrictions liable to be imposed on them on licence will likely be very severe indeed, including most if not all the available conditions, and applied very strictly.
65. … In my view with standard conditions the assessment of necessity and proportionality has been struck by Parliament for all relevant offenders. By contrast additional conditions require an individualised exercise of judgment, where issues of procedural fairness arise. … [A submission on behalf of the Secretary of State that the MAPPA panel is not the decision maker, to which article 8 procedural requirements apply] in my view overlooks the reality of the system, that recommendations originate from MAPPA meetings, with the offender manager as a participant, the offender manager then making recommendations to the prison governor, who is unlikely to go behind the assessment of the MAPPA panel.
66. So Article 8 conferred on this claimant the basic procedural right to make meaningful representations about the additional conditions in his licence …."
- The judge went on to hold that the relevant procedural requirements were satisfactorily met in the circumstances of the appellant's case. His reasons were these:
"66. … Here the claimant's concerns were on the table at the MAPPA meetings. The offender manager, with overall responsibility for overseeing the claimant's sentence, attended these meetings and fed in the claimant's perspective. The claimant's self harming and his threats of suicide were well known during his time in prison and a feature of discussions at the MAPPA meetings. It was also known that his self harming was superficial and that it and the suicide threats could be used if the offender did not get his own way.
67. The MAPPA panel knew well in advance of the claimant's release of his desire to be treated by Dr Korzinski at the Foundation and the implications for that of his living in London. The Foundation had no accommodation and there was considerable delay in its replies to questions raised by the authorities …. Dr Shapero, who attended three panel meetings, had made clear to the MAPPA meeting a month before the claimant's release that the claimant would be unhappy with the electronic tag. At the latest the claimant himself knew of the electronic tag a week before the release (on the Secretary of State's case, almost three weeks before his release). Admittedly [his solicitor's] letter was written a day before his release, and therefore after the prison governor had approved the additional conditions. She said that the electronic tag would affect the claimant's mental health, albeit quoting Dr Korzinski's more general point that the electronic tag would interfere with the therapeutic process.
68. It is not in the least surprising that in the preparation for his release, whatever objections the claimant raised relevant to the additional conditions they would be substantially discounted. The reality was that this claimant had committed terrorist offences. He refused to engage in rehabilitative work in prison. Nor would he accept responsibility for his offending. His OASys assessments, which had been given to him, were that he posed a high risk of harm in the community. Obviously he would be subject to the most stringent additional conditions in his licence. With this as background, and the security problems in the hostel where he would live, the electronic tag was in my view an obviously proportionate response.
68. The imposition of conditions was not set in stone. The MAPPA process was a continuing process, beginning well before his release and involving some sixteen meetings over a twenty-one month period …."
- Ms Kaufmann submits that it was a matter of luck that a sufficient opportunity to make informed representations was given in this case. She points to evidence before the court in relation to other cases (detailed on an anonymous basis) where there is said to have been a lack of opportunity for effective representations to be made pre-release in relation to the imposition of additional licence conditions. She submits that in the absence of specific guidance in the policy documents, there is an extremely high risk that cases will arise where such an opportunity is denied, in breach of the requirements of fairness, and that this risk is sufficient to render the policy unlawful.
- With that lengthy introduction I can turn to the first of the questions set out at paragraph 3 above.
The test for determining whether the risk of an unlawful outcome renders a policy unlawful
- Ms Kaufmann submits that the correct test for determining the legality of a policy is one that requires the court to assess, across the full range of cases liable to be subject to the policy, whether the policy creates an unacceptable risk that the individual to whom it applies will be subject to unlawful decision-making. In deciding whether the risk is unacceptable, the court must ask whether the risk inheres in the policy itself, as opposed to the ever-present risk of aberrant decisions. Unacceptability depends on the degree of risk, the consequences if the risk materialises, the extent of anything that minimises the risk and the cost of minimising the risk.
- In my judgment, the question to be asked in the present context is a more straightforward one, namely whether the system established by the guidance in the policy documentation is inherently unfair by reason of a failure to provide the offender with a fair opportunity to make meaningful representations about proposed licence conditions. If it is, then the guidance itself may be found to be unlawful; but if it is not, the correct target of challenge is not the guidance but any individual decisions alleged to have been made in breach of the requirements of procedural fairness.
- The key authority is the decision of the Court of Appeal in R (Refugee Legal Centre) v Secretary of State for the Home Department  EWCA Civ 1481,  1 WLR 2219. That case concerned a challenge to the decision to establish a fast track pilot scheme for the adjudication of asylum applications at Harmondsworth Removal Centre, on the ground that it was inherently unfair and unlawful because it compressed the decision-making process into three days. The Home Office filed evidence that claims which turned out to be particularly complex were removed from the scheme and that caseworkers were encouraged to adopt as flexible an approach as possible without compromising the integrity of the process. Giving the judgment of the court, Sedley LJ rejected a submission by Mr Fordham, for the claimant, that the question was "whether the system was capable of operating fairly", pointing out that in a straightforward case the system was perfectly capable of operating fairly. He continued:
"6. … A more appropriate question, in our view, is the one posed by Mr Robin Tam for the Home Office: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham's alternative approach of seeking to construct a 'typical' case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry … at unacceptable risk of being processed unfairly. This, therefore, is the question we propose to address.
7. We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects. That is why the intrinsic fairness of the fast track system at Oakington was dealt with by this court as discrete issue in R (L) v Secretary of State for the Home Department …."
- At paragraph 14 Sedley LJ stated that "our task is, so far as we are able, to make an objective appraisal of the fairness of the Harmondsworth system". He expressed concern about the lack of a clearly stated procedure (or policy) which recognised that it would be unfair not to enlarge the standing timetable in a variety of instances. The conclusion, however, was that the challenge to the lawfulness of the system failed. At paragraph 20 Sedley LJ returned to the initial question, which he expressed in this way: "does the present system at Harmondsworth, considered in the round and at the point of entry, carry an unacceptable risk of unfairness to asylum seekers?" He said that the judge at first instance had been right to conclude that it did not: "provided that [the system] is operated in a way that recognises the variety of circumstances in which fairness will require an enlargement of the standard timetable – that is to say lawfully operated – the Harmondsworth system itself is not inherently unfair". He acknowledged that there was a gateway risk of injustice, in the nature of things not case-specific but caused by potential rigidity in a system which required genuine flexibility in its timetable. As to that, however, he said:
"25. We have recognised this risk and indicated what in our view needs to be done to obviate it. But, like Collins J, we do not consider that the system itself is inherently unfair and therefore unlawful. On the contrary, so long as it operates flexibly – as the Home Office accepts it should – the system can operate without an unacceptable risk of unfairness …." (original emphasis).
- Whilst that judgment uses various phrases picked up by Ms Kaufmann in her formulation of the test for determining the legality of a policy, it seems to me from the passage at paragraphs 6-7 of the judgment, read together with the court's subsequent reasoning, that the essential question the court was asking itself was whether the system established by the policy under challenge was inherently unfair. An "unacceptable risk of being processed unfairly" was a risk of unfairness inherent in the system itself rather than one arising in the ordinary course of individual decision-making. The conclusion reached was that provided the system was operated with appropriate flexibility it was not inherently unfair; it could operate without an unacceptable risk of unfairness.
- In R (Medical Justice) v Secretary of State for the Home Department  EWHC 1925 (Admin), Silber J had to consider a challenge to the lawfulness of a policy whereby individuals who fell within certain specified categories and had made unsuccessful claims to enter or remain in the United Kingdom were given little or no notice of their removal directions, thus limiting or removing the opportunity for them to apply for judicial review of the removal directions. Observing that the challenge was to the policy itself, Silber J quoted paragraphs 6-7 of the judgment of Sedley LJ in the Refugee Legal Centre case and said that he would apply that approach, which was not disputed by either party.
- He followed this by an observation, at paragraph 34 of his judgment, that "the unacceptable minimum risk of unfairness referred to in that case does not mean that a policy would only be unlawful if it would necessarily give rise to interference [with] the right of access to justice or that it would be impossible to operate such policy with causing such interference. The 'proven risk of injustice' must depend on the consequences ….". At paragraph 36 he said that the provisions of the policy should be declared unlawful "if there is an unacceptable risk or a 'serious possibility' that the right of access to justice of those subject to them will be or is curtailed". He concluded at paragraphs 172-173 that there was "a very high risk if not an inevitability" that the right of access to justice was being and would be infringed and that the policy document was unlawful.
- On an appeal by the Secretary of State to the Court of Appeal, one of the grounds of appeal was that the judge should have applied the approach in the Refugee Legal Centre case and asked himself the question whether there was in the policy "a proven risk of injustice which goes beyond aberrant … decisions and inheres in the decision itself" (see paragraph 8 of the judgment of Sullivan LJ, with whom the other members of the court agreed, at  EWCA Civ 1710). Sullivan LJ was satisfied that there was no substance in that ground:
"25. The judge set out the relevant passages from the Refugee Legal Centre case in paragraph 33 of his judgment. Having done so, the judge said at the end of that paragraph:
'I will apply that approach, which is not disputed by either party.'
26. Having said that he was going to apply that approach, it would be surprising if he had failed to do so. In my judgment he did not fail to do so. I have referred to the judge's conclusion in paragraph 172 of the judgment that:
'There is a very high risk if not an inevitability that the right to access to justice is being and will be infringed.'
27. The judge examined the evidence in great detail and it is significant that there is no challenge to his factual conclusions as to why a period of less than 72 hours was inadequate. Given those factual conclusions, it is perhaps unsurprising that the judge also concluded that there was a very high risk of injustice which was inherent in the system of removing certain classes of persons on less than 72 hours' notice.
28. Having identified the risk, for the reasons set out earlier in the judgment, the judge considered whether the Section 3 policy contained 'clear safeguards' which obviated 'any substantial risk [or] a real possibility of interference with the right of access to justice of those who receive abridged notice under the 210 exceptions' …."
- It seems to me that Sullivan LJ was doing no more than rejecting the submission that Silber J had failed to apply the approach he had set out in the passage quoted from the Refugee Legal Centre case. Silber J's conclusion that there was "a very high risk if not an inevitability" of infringement of the right to access to justice was consistent with the application of that approach but was not intended to be a formulation of the legal test. I do not read either his judgment or its endorsement by the Court of Appeal as altering the approach laid down in the Refugee Legal Centre case.
- Another authority that needs to be considered is the decision of the House of Lords in R (Munjaz) v Mersey Care NHS Trust  UKHL 58,  2 AC 148. That case concerned a challenge to a hospital's policy in respect of the seclusion of psychiatric patients. One of the issues was whether the hospital had subjected patients to treatment prohibited by article 3 ECHR. Lord Bingham of Cornhill said at paragraph 29 that "The trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3". Lord Hope of Craighead said at paragraph 80 that he would approach the issue "by asking myself whether Ashworth's policy gives rise to a significant risk of ill-treatment of the kind that falls within the scope of the article". The conclusion reached in each case was that there was no breach of article 3. Ms Kaufmann submitted that the test of "significant risk" in Munjaz was an articulation of the same principle as in the Refugee Legal Centre case. I disagree. The observations in Munjaz were concerned specifically with the risk of article 3 ill-treatment and in my view were not intended to be an expression of any wider principle. The Refugee Legal Centre case was not referred to and had not been cited in argument. Munjaz does not assist in the present context.
- We were also referred to the first instance decisions in R (Suppiah) v Secretary of State for the Home Department  EWHC 2 (Admin) and R (MK and AH) v Secretary of State for the Home Department  EWHC 1896 (Admin). In my view they add nothing material.
- In conclusion on this issue, I take the view that the other authorities to which our attention has been drawn contain nothing to alter the approach laid down in the Refugee Legal Centre case, which concentrates on asking whether the system established by the policy is inherently unfair. In my judgment that is the approach that should be applied in the present case.
The test applied by the judge
- The relevant law was considered by the judge at paragraphs 42-52 of his judgment. He said that the authorities recognise three bases on which a court can conclude that a government policy is unlawful. First, it is well established that a policy which, if followed, would lead to unlawful acts or decisions, or which permits or encourages such acts, will itself be unlawful: Gillick v West Norfolk and Wisbech Area Health Authority  AC 112. Secondly, it was established in Munjaz that the test in article 3 cases is whether a policy exposes a person to a significant risk of the treatment prohibited by the article. The third basis is that laid down in the Refugee Legal Centre case. The judge said that Sullivan LJ in the Medical Justice case "held that despite Silber J referring to a wider test, he had in fact applied the Refugee Legal Centre test" and that Sullivan LJ "did not support the wider test which Silber J advanced in the course of his judgment" (paragraph 48). The judge then considered the two further first instance cases to which I have referred.
- He then set out his conclusion as to the appropriate test, and his reasons for it, as follows:
"51. My conclusion is that what I have termed the wider test – a policy giving rise to an unacceptable risk of unlawful decision-making – should be avoided. It did not have the support of the Court of Appeal in Medical Justice. Wyn Williams J's decision in Suppiah was overtaken by the Court of Appeal decision in that case. Foskett J's decision in MK is firmly based on Munjaz. What the authorities demand is that the policy must lead to unlawful action, or that there be a very high risk or an inevitability of that occurring (Gillick; the Court of Appeal in Medical Justice). To put it another way there must be a proven risk of unlawfulness, going beyond the aberrant and inhering in the system itself (Refugee Law Centre). In Article 3 cases there need only be a significant risk of unlawfulness flowing from the policy (Munjaz). The lower threshold where a policy raises Article 3 issues is justified because of the unqualified nature of the right that article 3 confers.
52. In my view these high thresholds are justified, first, for evidential reasons. Policies can have disparate impacts in practice and the overall impact will be difficult to gauge. These evidential difficulties may be more acute where challenges are brought to policies by NGOs and particular claimants are not involved. It is likely that Sedley LJ had evidential problems in mind when he referred in Refugee Law Centre to a proven risk of unfairness, which went beyond the aberrant but was inherent in the system. A risk inherent in the system will be more obvious than an unacceptable risk, or even a serious possibility of unlawfulness. Secondly, there are institutional and constitutional limits to what the courts should determine. The executive is in daily touch with areas of administration; the courts will not have the same expertise to calculate how policies play out in practice and what their overall likely impact is. But the courts should adopt a high threshold for a more fundamental reason. Policy making and implementation is an imperfect business. Sometimes there will be a strong imperative to adopt a particular approach. Governments will not consciously adopt a policy they know leads to unlawfulness. For a court to strike down a policy because the risk of unlawfulness is 'unacceptable' risks, in my view, going over the line. Especially with social and economic policies it has long been recognised that government is entitled to a wide margin of appreciation. The high thresholds I have identified in the case law recognise this."
- That is a thoughtful and challenging analysis. It will be apparent from what I have said above, however, that I do not subscribe to the entirety of the judge's conclusion. In so far as he puts Munjaz to one side, I agree with him. Where I disagree with him is in the use he makes of the other authorities. First, I would also put Gillick to one side. It was concerned with the reviewability of guidance on the ground that it was erroneous in law and would therefore lead to unlawful decisions. That is a materially different issue from the issue of procedural unfairness that arises here, in relation to which the decision in the Refugee Legal Centre case is directly in point. I have explained how I read the decision in that case. It concentrates on whether the system established by the relevant policy is inherently unfair. It does not reject the test of "unacceptable risk" of unfairness but effectively equates an unacceptable risk of unfairness with a risk of unfairness inherent in the system itself. The material part of the decision of the Court of Appeal in the Medical Justice case goes no further than to hold that the first instance judge in that case applied the approach in the Refugee Legal Centre case that he said he would apply. The reference by the first instance judge to "a very high risk if not an inevitability" of infringement was not a formulation of the legal test and was not endorsed as such by the Court of Appeal.
- In summary, I take issue with the detail of Cranston J's analysis and think that he expressed the test erroneously when he said that "[w]hat the authorities demand is that the policy must lead to unlawful action, or that there be a very high risk or an inevitability of that occurring". Nevertheless, it seems to me that he was correct to view the relevant threshold as a high one. That the court will be slow to find that a system is inherently unfair and therefore unlawful is illustrated by the Refugee Legal Centre case itself, where the court had evident concerns about potential rigidity in the system but concluded that so long as it was operated flexibly it could operate without an unacceptable risk of unfairness.
The lawfulness of the policies in this case
- Although I have taken issue with the judge's conclusion as to the relevant test, the reasons why he found the policy in this case not to be unlawful remain relevant on what I consider to be the correct approach. The judge said this:
"73. As I read the policy it is premised on the offender manager being the conduit for the offender's concerns to MAPPA meetings. The discussions in MAPPA begin, under the policy, at least six months prior to release with offenders like the claimant. Section 4.8 of the MAPPA 2009 Guidance provided expressly for an offender to present information to MAPPA meetings through their offender manager and that it was good practice that offenders knew of MAPPA and were engaged with the process. Paragraph 12.16 of the current MAPPA guidance is along the same lines. As well the current 'offender manager model' requires the active collaboration of offenders in planning for their sentence. There is no policy of refusing to disclose MAPPA minutes; under chapter 13 of the current MAPPA Guidance an offender can request disclosure. An offender is aware of the key factors bearing on risk since he is aware of his offending, of his engagement with rehabilitative programmes in prison and of his OASys assessments. Many offenders will retain contact with the solicitors who represented them in the criminal proceedings. As in the claimant's case, they will be able to make relevant representations. Paragraph 2.40 of PI 07/2011 made clear that before release the offender was to have the additional conditions explained. In my view all of this is miles away from the high threshold explained earlier in the judgment which would render the policy on additional licence conditions unlawful because of the risk of breach of Article 8 procedural rights."
- Ms Kaufmann takes issue with that conclusion and makes various criticisms of the judge's reasoning. In her submission a system which expressly excludes the offender from the MAPPA meetings at which the material decision-making takes place has inherent within it a very high risk, if not an inevitability, that the offender's procedural rights will be breached unless it contains sufficient safeguards to ensure that the offender is otherwise adequately involved, yet the process by which additional licence conditions are determined has no such safeguards. The guidance contains no requirement that the offender be informed of the matters to be considered by MAPPA or of any means by which he or she might convey his or her views to MAPPA for consideration. It does not draw attention to the fact that the offender has a right to participate in the process to the degree necessary to safeguard his or her interests under article 8. The judge was wrong to say that paragraph 12.16 of the MAPPA Guidance 2012 is "along the same lines" as paragraph 4.8 of the MAPPA Guidance 2009: as shown by the passages quoted above, the 2012 guidance does not include the statement that the offender "should be allowed the opportunity to present written information to the MAPP meeting" but merely provides that "it may be helpful" to invite the offender to write down, or pass on, information for discussion at a level 2 or level 3 meeting "if he or she is aware" of being managed at that level; and the 2012 guidance makes no provision for the offender to be informed before and after MAPPA meetings. The right to put in an information request under the Data Protection Act 1998 for MAPPA minutes does not help. Nor do the general statements in the Offender Management Model plug the protection gap. The offender's knowledge of the contents of the OASys assessment is not sufficient: it would not, for example, assist in relation to the specific issue that arose in the present case concerning the appellant's objection to electronic tagging. With the cut-backs in legal aid, solicitors can no longer be relied on as a safeguard, if ever they could be. The appellant's own case had the feature of heavy involvement of his solicitor and of a psychiatrist but that was unusual.
- Despite the skill with which she advanced her argument, Ms Kaufmann has not persuaded me that there is any material error in the judge's reasoning or conclusion; and I am satisfied that the same conclusion applies on what I consider to be the correct approach towards determining the lawfulness of the policy. The most important point as I see it is the role of the offender manager. The offender manager works with the offender in relation to sentence planning, produces an OASys risk assessment after discussion with the offender, shares that assessment with the offender and is in a position to put forward the offender's concerns when discussing licence conditions at MAPPA meetings and to raise with the offender any issues arising out of those meetings; and it is the offender manager who has responsibility for recommending to the prison governor the conditions to be included in the licence. These various aspects of the role of the offender manager fit comfortably within the system established by the guidance.
- The judge's finding that a sufficient opportunity to make informed representations about the additional licence conditions was provided in relation to this appellant is itself highly significant. That a sufficient opportunity was given cannot in my view be attributed to luck or to unusual features. It is an illustration of the system operating fairly, and there is no reason to believe that the system is not capable of operating fairly in the generality of cases.
- A similar complaint of procedural unfairness to that in the present case was dismissed on its facts by the Divisional Court in R (Gul) v Secretary of State for Justice  EWHC 373 (Admin). In that case the court referred to the fact that the claimant had been subject to an OASys assessment and had been visited in prison three times by probation officers, including his offender manager, before his release. The evidence was that the offender manager had first met him for a MAPPA planning meeting at which the generality of licence conditions, including the standard conditions and those tailored to the claimant's offences, were discussed. The court held that at the meetings with probation officers the claimant had had the requisite opportunity to be heard and opportunity to participate in the procedure by which the decision was made. He took the opportunity in relation to the conditions that were of concern to him, and his representations had some, albeit a very limited effect. Thus, the claimant had not only indirect input of the sort referred to by Cranston J in the present case, but direct input at the meetings with probation officers, against the background of an assessed high risk of causing serious harm. The court was emphatic in its finding that there had been no procedural unfairness.
- When considered in the light of the general features of the system and the specific findings in the present case and in Gul's case, I am satisfied that the anonymised cases relied on by the appellant are of insufficient weight to justify a finding that the system is inherently unfair. I accept that it might be helpful for the guidance to include more specific provision as to the requirements of procedural fairness in relation to the imposition of additional licence conditions but I do not accept that the omission of such provision gives rise to inherent unfairness so as to render the policy unlawful. Allegations of procedural unfairness need to be pursued on a case by case basis.
- For the reasons given I would dismiss the appeal.
Lord Justice Aikens :
- I agree.
Lord Justice Patten :
- I also agree.
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