Carman, R (on the application of) v Secretary of State for the Home Department

In this application, brought with leave of a single judge, a convicted prisoner, released on licence, challenges the terms of his licence. He contends that they are irrational and infringe his rights enshrined in Article 8 of the Convention.

Mr Carman was a doctor of medicine working as a general practitioner in Western Super Mare, specialising in gynaecological and family planning.

In September 2001 a patient alleged that he had indecently assaulted her during an internal examination. When this complaint was investigated by the police further complaints were made. Those complaints related to indecent assaults over a 20 year period during medical examinations of the alleged victims.

On 25th September 2003, at Bristol Crown Court, the applicant, Mr Carman, was convicted of nine counts of indecent assault and sentenced to 12 months in prison.

On 27th January 2004, the Court of Appeal Criminal Division heard an appeal against his convictions and an Attorney General's reference on the grounds that the sentence was too lenient.

Six of the nine counts of indecent assault were quashed because of a misdirection by the trial judge. The Court of Appeal made the point that the dismissal of six convictions was not to be understood as a reflection on the evidence of the other complainants (see paragraph 5 of the fourth witness statement of the probation officer Jane Aitchison).

The Court of Appeal upheld three of the convictions relating to indecent assaults consisting of rubbing patients during internal examination in the clitoral area in 1983, 1996 and 2001. It increased the sentence to one of 18 months in total.

Most of Mr Carman's sentence was served in an open prison. Assessment of Mr Carman and monitoring took place, as would be expected, by prison staff and internal probation officers throughout the time he was in open prison.

Discussions took place as to the conditions to be imposed on release on licence in April to May 2004. It was intimated that the claimant would initially be required to stay at Brigstocke Road Probation Hostel in the St Paul's area of Bristol. There he could be assessed in respect of whether he was a risk to the public.

The claimant and his legal representatives protested. They said the area was insalubrious, that as a sex offender he would be vulnerable. This, it was said, was of particular importance because he had suffered, in 2002, a serious injury to his right arm and any further injury might give rise to the need for amputation.

By the end of May 2004 solicitors on behalf of the claimant threatened judicial review proceedings should he be compelled to go to that hostel in Brigstocke Road. The final decision would be taken by the prison service.

On 10th June 2004 the claimant was transferred to a closed prison at HMP Usk. This was because he had made threats to a female probation officer and behaved inappropriately to staff at Leyhill. It was unusual that a prisoner should be transferred from an open to a closed prison so shortly before release on licence (see the statement of Shirley James probation officer at HMP Usk).

The claimant was released on 18th June.

Section 33 of the Criminal Justice Act 1991 provides:

Section 37 of the Criminal Justice Act 1991 provides:

Section 69 of the Criminal Justice and Court Services Act 2000 provides:

The licence conditions included a requirement at (ii):

It must be stressed at this stage that the purpose of the licence conditions is not to punish but, on the contrary, to protect the public in general or specific individuals from potential risks of harm based on risk assessment undertaken by the probation service (see paragraph 2 of the statement of Felicity Hawksley head of the Approved Premises Team in the Public Protection Courts Unit of the National Probation Directorate).

Without notice an application was made to a judge who gave interim relief that the claimant need not reside at Brigstocke and in circumstances which to me are unclear, gave permission to move for judicial review notwithstanding that no acknowledgment of service had been filed and thus the defendant had no opportunity whatever to resist the application.

The application itself should have made it clear that permission was not sought until the acknowledgment of service had been filed or the time for filing had expired.

It should, if it was so thought wise, have sought abridgment of time for the acknowledgment of service and permission thereafter.

On 18th June, the day after, the application returned before another judge who, after representations from the defendant, did vary the completely open-ended licence condition, made by the first judge, to permit the claimant to live at an address in Bristol with a friend and his family. I shall call that friend "R" since I make an order that no reporting is to be made which should identify R's child of 16.

The claimant has been at that address ever since. The licence was amended on 18th June in accordance with the judge's order so as to require the claimant to live at the different address in Bristol.

The challenge that the terms of the licence requiring this claimant to reside at a hostel in Brigstocke Road is irrational, is founded in part on the proposition that notwithstanding that this claimant is a convicted prisoner on licence, he is still entitled to protection of his rights enshrined in article 8.

Accordingly it is contended that any restriction on his right must be necessary and proportionate.

This decision is derived from a judgment of Stanley Burton J in Craven (R on the application of) v The Secretary of State for the Home Department and The Parole Board [2001] EWHC Admin 850.

This case concerned a life prisoner who challenged the exclusion zone imposed on him, which he said prevented him seeing his family.

Stanley Burton J accepted that such a prisoner had rights under article 8 but concluded that his exclusion was necessary and proportionate, in particular having regard to the rights of victims exemplified by section 69 of the 2000 Act.

The case is of limited assistance in the instant case. It should be stressed that the claimant does not and could not contend that it is unlawful to keep him away from his home area in Western Super Mare for a period for assessment on release.

His submission is more limited; namely that he should not reside at a hostel where he is required to report every two hours, at least, on his initial entry into the hostel. Thus his challenge is only based on Article 8 to the extent that it is more difficult for him to see his family whilst he is made to live in the hostel and has to report every two hours.

His case is that he should be allowed to live elsewhere in Bristol with a respectable family. I shall return in more detail to his complaint and justification for them, but I should say at the outset that the decision of Stanley Burton J is no warrant whatever for challenges in this court to the imposition or content of conditions attached to a licence on release.

The probation service work hard enough as it is in seeking to protect the public while in the front line of an effective and humane criminal justice system designed to reduce the risk of re-offending.

They deserve the protection of this court from spurious time-consuming and expensive challenges. The courts should be astute to prevent such challenges at the permission stage. The licence conditions and assessment of risks to the public, on which they are based, are matters of fine judgment for those in the prison and the probation service experienced in such matters not for the courts. The courts must be steadfastly astute not to interfere save in the most exceptional case.

I note with some dismay that there is already one other case based on the principles expressed by Stanley Burton J in Craven.

The primary challenge when this case was launched and was before the two judges to whom I have referred, was based on risk of injury to the claimant.

It is said that he was exposed to risk of harm and medical evidence, in support, was provided. But this challenge has fallen away.

It is apparent from Jane Atchison, the probation officer's first statement, that no other hostel would be suitable for a sex offender in the area (see paragraph 3 of her first statement). She says:

One of them is too close to Western Super Mare. The other three are in Bristol but only Brigstocke Road is suitable for sex offenders.

The other one in Bridgewater is due to receive, apparently, several violent and dangerous offenders.

Thus if it is appropriate that the claimant should be required to reside in a hostel at all, it is plain that the prison service and the probation service are entitled to require him to reside at Brigstocke Road.

The area has been described by the claimant's solicitor as insalubrious, but there is no evidence whatever that the claimant is more at risk there than anywhere else.

It is alleged that, in concluding that he should stay away for a time during the course of his licence from Western Super Mare, the probation officer failed to consult victims as required by section 69 of the 2000 Act.

It now emerges from the third and fourth statements of Jane Atchison that the Victim Liaison Unit is charged with contacting victims.

It did attempt to do so and one expressed a view exhibiting reluctance that the claimant should return to the place where he lived in the past. That, of course, is inevitable once the licence expired but it is a factor and a legitimate factor in the decision that he should initially be in a hostel in Bristol. Again that challenge has fallen away.

When the claimant is first admitted to the hostel it will be a requirement that every two hours between 9 am and 9 pm he should be required to sign in at the hostel.

In a letter dated 26th May 2004 Jane Atchison said:

In a witness statement the solicitor on behalf of the claimant reported a conversation with the governor of HMP Usk in which the governor expressed doubts as to the propriety of that requirement.

Unfortunately the governor has not been able to respond to the evidence of that conversation, but it does not seem to me to matter. It now appears that such a requirement is standard on initial admission (see paragraph 19 of J Atchison's fourth statement).

The probation service was perfectly entitled to impose such a condition, once it is accepted that it is appropriate for the claimant to reside at the hostel.

It must be recalled that the purpose of such a condition is assessment and monitoring initial restrictions are wholly understandable until the process of assessment has been abandoned. It cannot be considered irrational.

Thus far the challenges are not only unarguable but should never have even been advanced. They betray a misunderstanding of the function of this court in the context of the work of the prison and probation service.

They have the responsibility for managing risk inherent in the release of prisoners on licence and the assessment and monitoring of that risk. The courts and others are simply not qualified to do so. They should accordingly exhibit considerable reluctance when asked to interfere.

At the heart of these proceedings lies a challenge to the decision that the claimant should live at any hostel.

Once it is accepted that the prison and probation service were entitled to impose that requirement, the rest of the challenges are as nothing. The attendant restrictions follow since the only available and appropriate hostel was that in Brigstocke Road.

I turn then to this fundamental challenge. The decision that the claimant should reside at Brigstocke Road was based on an assessment of the claimant's risk of re-offending. This was assessed as medium/high (see paragraph 4 of Jane Atchison's second statement).

On the basis of that risk Felicity Hawksley, head of the Approved Premises Team, endorsed that decision, such endorsement being echoed by David Middleton of the National Probation Directorate, Head of Sex Offenders Strategy and Programmes in the same unit as Felicity Hawksley.

It is plain that if the medium risk assessment is unarguably appropriate, it follows that the requirement to stay under the hostel cannot be impugned.

At the very least the decision requiring him to stay at the hostel was one which the service as entitled to reach. But the essential challenge is that the assessment, that the claimant was of medium to high risk, was irrational.

When this was first argued two weeks ago before me the challenge, advanced on behalf of the claimant, focused on the reasons given in her second statement by the probation officer Jane Atchison.

She had said:

She continued in the same paragraph saying:

There the challenge rested on the use of words, for example, "groomed" and "intent on abusing women" and, so it was contended, appeared to be based on a belief that he was guilty of a number of offences greater than those for which he was convicted.

During the course of the initial hearing, when the time came for him to respond, Mr Kovats, on behalf of the Secretary of State for The Home Department, with customary frankness, referred to a document headed "Offender Assessment System, OASys Two" which seemed at first blush to suggest that it was compiled at a time before the Court of Appeal Criminal Division had quashed six out of the nine offences.

It says in terms: "this is an open document enter only information that can be shared with the offender". But the document had not been produced nor, so far as I can see, even asked for earlier.

I allowed an adjournment. This led to a further challenge based upon that document and further evidence.

In amended grounds, for which I gave leave, the challenge attacked again the two hour requirement but more importantly focused on the risk assessment.

It contended that the risk had been assessed by reference to convictions which were quashed on appeal. It further attacked discrete assessments within the document.

Part of the allegations in the amended grounds relate, as I have said, to discrete assessments which are described as irrational. In particular those assessments include, at paragraph 7, under lifestyle and associates, a maximum score of two in relation to manipulative predatory lifestyle and recklessness and risk taking.

The document also refers to a high score in relation to risk as a result of his thinking and behaviour, awareness of consequences and understanding of other people's views, for example.

It further scored highly in relation to his attitude which is described as being very discriminatory to women.

In the summary the weighted score in relation to risks stemming from lifestyle and associates, is raised from four to ten. The likelihood of serious harm to the public is assessed as high and to known adults as medium.

It was argued that, bearing in mind that following the Court of Appeal's decision there are only three convictions, those assessments are irrational.

Moreover, it was argued, it is of paramount importance to recognise that this claimant has now ceased to be a doctor, so he is deprived of an opportunity of indecently assaulting patients; accordingly the assessment is irrational.

It is, I should emphasise, true that the claimant has now ceased to be a doctor since he was struck off, I think, in July 2004.

It must be stressed that Jane Atchison, the probation officer, is an expert in assessing risks posed to the public by sex offenders. She specialises in this area (see paragraph 4 of her fourth statement).

Secondly, she is required to assess risk. Risk is, as Lord Diplock in a different context remarked, a noumenon, an object of intellectual intuition and not a material object which can be observed.

It is, in a legal context, a concept which can only be assessed by value judgment. Jane Atchison has the expertise with which the court cannot interfere unless, in the process of reaching the conclusion of her value judgment, she has erred in law.

The discrete challenges are accordingly without any foundation. They cannot be and are not challenged on the basis of any countervailing expertise. Had those challenges stood alone I would have regarded them as unarguable and would not have given leave for them to be challenged by way of judicial review. It is to be hoped that such challenges of discrete assessments or scores will not be repeated in future cases.

Jane Atchison's assessment was based in part on the fact that, since the claimant was in denial, he was an unknown quantity, one of the very reasons why further assessment during residence at a hostel is necessary (see paragraph 14 of her fourth statement and paragraph 5 of her second statement).

As to the fact that he has ceased to be a doctor, in her fourth statement, Jane Atchison says:

These were views Jane Atchison was perfectly entitled to reach. I reject the complaints as to the discrete items within the Offender Assessment System document.

There is, however, one matter which causes me concern. It is the allegation that in reaching that all important assessment, that the claimant is medium to high risk, the probation officer failed to have regard to the fact that he stands convicted of only three offences.

It is argued that it is clear from the offender assessment document that that assessment is based on convictions and suspicions of far more offences than three.

I have already referred to the probation officer's second statement, where she referred to him being a man intent on abuse and committing offences even after complaints had been made.

The latter was in fact true, as it now turns out, but, it is said, the probation officer exaggerated his criminal behaviour in the belief that he was guilty of more offences.

In paragraph 2, under the heading "Analysis of Offences" the description states:

At 2.4 the document does, it is true, refer only to the details of three victims. At 3.6 of the document there is a reference to all the other claimant's victims in respect of which he received lesser sentences.

At paragraph R.6.1, well into the document, the allegations in relation to current behaviour and most recent behaviour indicative of risk of serious harm repeat the passage to which I have already referred.

The assessment document is dated 19th May 2004, some considerable time after the Court of Appeal decision in January.

In her fourth statement, made after the first hearing before me, dated 27th July, Jane Atchison denies that the assessment of medium to high risk was based on anything other than the three victims. She says, at paragraph 14:

It should be noted that she speaks of only amending the first sheets, although, as I have said, the R.6.1, most recent current behaviour, repeats the allegations relating to a number of women.

I am prepared to accept that the probation officer believes that her assessment should stand despite the acquittals, even though she accepts she has in the past mistakenly referred to the convictions that were dismissed as being dismissed on a technicality.

Her assessment of risk, as she points out, is not merely her own but that of others. There have been conferences by the Mappa 2 local inter-agency risk management, meetings attended by both probation office services and the police services on 17th February, 18th May and 15th June (see paragraph 12 of Jane Atchison's fourth statement and references to those meetings by Shirley James, the probation officer employed at HMP Usk and James Hough of the Early Release and Recall Section). All of those people support the assessment.

But the assessment system, the OASys document, must have been of significance to all of those considering the case. It must have been the foundation for their judgments.

In my judgment that document is flawed. Read as a whole it does, as it seems to me, overlook the fact that this claimant is not guilty as a result of the Court of Appeal Criminal Division ruling save in respect of three victims. True it is that the document refers to only three but the whole tenor of the document seems to me to proceed on the basis that there were far more victims.

I am very far from saying that such written assessments may not, in appropriate cases, take into account circumstances such as those obtained from intelligence which relate to the question of risk other than convictions, but where such a written assessment is imbued with an aura of guilt for far more offences than is the case, it casts a real doubt on the basis of the judgment of risk.

In my view this document is flawed because it does, read as a whole, proceed on the basis of significantly more than three offences of indecent assault.

The evidence that the judgment of risk was made only on the basis of three offences is the product of post-challenge justification. While in the circumstances of the challenge the probation officer and others were entitled to rely on that post-challenge evidence, faced with the significant document, namely the assessment document, that evidence has all the problems associated with post-decision justification.

In those circumstances I cannot attach weight to the belief, genuinely held as I accept, that the assessment of risk was not influenced by the tenor of the written assessment.

I must also bear in mind, but only as a limited factor, that that assessment is an open document which the claimant himself is entitled to see and has now seen. It is bound to undermine the necessary confidence between a convicted prisoner on licence and the probation service if the service's assessment appears to him to be based on a wrong and unfair view of the underlying pattern of offending.

In my judgment the written assessment is, for those reasons, flawed to the extent that it vitiates the assessment that the claimant is of medium to high risk. It was that risk which has led to the licence conditions which are impugned.

In the light of that important error, the condition of residence as it now is at Brigstocke Road cannot stand and is quashed. Accordingly it will be necessary for the risk to be re-assessed in the light of the three convictions and the up to date circumstances of the claimant. I stress that that re-assessment must take place as soon as possible.

I also stress that I am very far from saying that a risk assessment of medium to high is incorrect or cannot be justified. I am, in consequence, very far from saying that a requirement to reside in the hostel at Brigstocke Road is not fully justified. I must emphasise the limitation on my ruling.

All I have decided is that the issue of risk, which is the source of the licence condition, must be re-assessed. It may well lead to the re-imposition of the licence condition so that these proceedings will have achieved no more than a delay until such time as the claimant can live elsewhere without risk to the public.

Although I have allowed this application on a limited ground, there is one further challenge with which I should deal. It is alleged that the probation officer's assessment of the claimant has been influenced by a personal attitude of hostility in Jane Atchison. That, it is said, is demonstrated not only by the language she has used in describing his offending, such as "intent on abuse", but also by the history after the order of Gibbs J who renewed the order.

The presence at the claimant's friend's house of the friend's 16 year old daughter led to the probation officer reporting the situation in a letter to social services, dated 6th July 2004.

The claimant's friend, R, is a highly respected and respectable member of the community. He was happy to have the claimant live with him. The decision was made with full agreement of his wife and daughter. I well understand his feelings of outrage at the report to social services. The matter could have been dealt greater tact.

It is no reflection on him. In fact, the probation service was merely seeking to protect itself should anything go wrong. That too was an understandable reaction.

I do not think that that demonstrates any personal hostility such as to undermine the relationship of the licensee and the probation officer.

She must have been sorely pressed. She was faced with sophisticated correspondence from a skilled partner in a much respected firm of solicitors. Those solicitors were only performing their duty faced with what they believed, incorrectly as I have found, to be the intransigence of the probation officer.

But in their desire to perform their duty, as they did, they wrote letters as they became increasingly frustrated, which appeared to disclose a wholly inappropriate de haut en bas (lofty) attitude of their client, a cavilling and captious approach to the probation officer's judgment.

Such an apparent approach, whether in reality actually the approach of the claimant, was wrong in a man convicted of serious offences, who should be seeking the guidance and help of the probation service for the greater protection of the public.

Faced with that apparent attitude, it was not surprising that the probation officer's response may have seemed defensive and lacking in objectivity.

I do not in any way blame Jane Atchison. It appears that she was, at that time, unprotected by legal advice or guidance. She responded personally without such assistance. I do not believe that it is right to conclude that Jane Atchison is other than appropriately objective in her task, in her approach to the task of supervising this claimant.

At paragraph 3 of her fourth statement she points out that she did not have the luxury of lengthy consideration or drafting but had merely consulted the Treasury Solicitor on the telephone.

At paragraph 4 she points out that she specialises in the area of sexual offenders. Her job involves assessing offenders but does not involve judgments on individual offenders or their crimes.

She says and I fully accept:

I believe she will continue to be so in any further handling of this case in which she may be involved. Insofar as the challenge to her attitude forms the basis of any distinct challenge, I reject it.

My conclusion is that the requirement of residence must be quashed. It was based on an incorrect written assessment, but I do believe it is necessary to recognise the vital work performed by those hard working and hard pressed probation officers, such as Jane Atchison, who carry out the difficult and important work of protecting the public from the impact of re-offending.

It is no exaggeration to describe that service as the key to a successful and fair criminal justice system. I reiterate my hope that challenges to licence conditions should be unusual. In future no one can seek permission in such a case, on a without notice application, without referring to this case. That might inhibit the unfortunate grant of permission before the Home Department has had an opportunity to respond, still less the grant of any interim relief before it has had a full opportunity to answer the challenges.

Challenges such as this, save in the most rare and exceptional case, which I believe this application to be, can only in their waste of time and resources impede the important work of the probation service.

MS LEFEVRE: My Lord, I seek on order that the respondent pay the applicant's costs of --

MR JUSTICE MOSES: First of all, you are seeking what by way of relief? It is difficult for you because you were not here.

Nobody who was here on behalf of the claimant is able to be here, but I think the relief -- what do you say Mr Kovats -- ought to be the quashing of (vii) of the licence conditions?

MR KOVATS: My Lord, yes.

MR JUSTICE MOSES: Then, hopefully, within a week or so consideration can be further given.

MR KOVATS: I thought it was not necessary for your Lordship to order a further assessment to be undertaken, it will be done in any event.

MR JUSTICE MOSES: It is bound to happen. Shall I make an order that that condition is quashed?

MR KOVATS: Yes.

MR JUSTICE MOSES: I will quash (vii) of the licence conditions in the original licence conditions, which of course is the hostel. That means that he will go on living at the current address until the assessment takes place.

Now you were going to make another application.

MS LEFEVRE: My Lord, yes. I seek an order that the respondent pay the applicant's costs for and ancillary to these proceedings. Those costs to be subject of a detailed assessment.

MR JUSTICE MOSES: At the moment I am only minded to give you half the costs; an awful lot of the challenge lost. It is very difficult. I think what I ought to do -- could you do any better than that?

MR KOVATS: My Lord, I will try.

MR JUSTICE MOSES: What I am proposing to do is to hear Mr Kovats but I think it is very unfair on you to have to argue even though you have won.

What I will do is make the order but then your people can have until the end of the third week of September, because I am here for a slot in September, but just for a week, to come back -- no, what I will say is until the end of September to come back to me in writing and say whether they think they can do any better than the order I finally make.

So I will make an order but then your people can then argue in writing before me as to whether it ought to be less or more.

What is your submission Mr Kovats?

MR KOVATS: My Lord, the challenge as originally formulated would have failed completely.

MR JUSTICE MOSES: The problem was the full picture -- it was all really on health grounds, was it not, at first? Which I would never have given leave on. Still that is no criticism of the judges involved.

MR KOVATS: The one point on which it has succeeded arose out of a disclosure that effectively was made to the defendant during the proceedings. Because certainly --

MR JUSTICE MOSES: They had been fishing around the point earlier. It had been there. The mistake they made was just not asking for the assessment once they had started sniffing around the point.

MR KOVATS: Yes. My Lord, I did not see it until the morning of the hearing. If I had seen it earlier, I would have (inaudible) disclosed it earlier. Even after it had been disclosed they did not drop all their bad points, they persisted in them.

MR JUSTICE MOSES: Well-ish.

MR KOVATS: Ish, subject your Lordship giving a firm steer.

My Lord, in my submission, 50 per cent would be more than generous to the claimant and in fact, given that they have failed in the vast majority of their claim and particularly their aggressive attacks on Miss Atchison, in our submission, a proper cost order should be no order for costs.

MR JUSTICE MOSES: Thank you very much.

I am not going to call on you. What I am going to say is what I propose is that you should have one third of your costs.

I think the most expeditious and cheapest way of doing it is I will receive written argument, so what your people can do is put in a written document, it can only be short, but I will not be considering it, as I say, until the third week in September, so there is no hurry. Let us say before the end of September, but they must let the Treasury Solicitor have a copy of it and then if they want to respond or stand by what Mr Kovats has already said, they can do so.

If they do not respond I will take it that they disagree, as it were, because Mr Kovats has already made his submission and then I will give a ruling in writing; just a short paragraph.

Thank you both very much.