X, R (on the application of) v Secretary of State for the Home Department & Ors

MR JUSTICE BEAN: The claimant is a prisoner serving a sentence of imprisonment of ten years imposed for cocaine importation offences on 25 May 2001. Since the case involves not only her but her young children, I make, for the avoidance of doubt, a direction under section 39 of the Children and Young Persons Act 1933 that in any report of this case she should be referred to by letter only, and that nothing shall be published which identifies or tends to identify the children.

On 2 November 2001 the claimant was allocated to HMP East Sutton Park Prison under open conditions. She remained there without incident until October 2004. Her two children are now aged eight and six and a half. Until she was sent to custody, she had been the primary carer for those children since their birth. At first she was visited by them in prison, but visits ceased when she believed that her children were old enough to read prison signs and realise that it was a prison. She did not want her children to know that she was detained in prison. She told them that she was in hospital.

During her time at East Sutton Park Prison she was able to maintain regular face to face contact with her children, even after the visits to prison ceased, as she was regularly granted release on temporary licence (ROTL). This enabled her to stay with the children overnight.

In October 2004, she was alleged to have been involved in incidents of assault and intimidation in prison. As a consequence, she was re-categorised as suitable for closed conditions on 13 October 2004, and transferred to semi-open conditions at HMP Drake Hall on 7 December 2004. She remains at Drake Hall to this day. She was allowed home leave at Christmas 2004, but for reasons which will appear later, not otherwise. She has spoken regularly with her children by telephone.

She was found guilty of the allegations of assault on 26 October 2004, but the findings of guilt were subsequently quashed. As a consequence of their quashing, her solicitors sought her return to open conditions. In a letter of 3 February of this year the deputy governor at East Sutton Park wrote:

On 26 January 2005 an application for ROTL was considered by the relevant Board. The Board recommended refusal and the governor endorsed the recommendation. In a letter of 8 February the claimant's solicitors were informed that she would be granted no further releases on temporary licence as a consequence of security intelligence. It was said in a letter of the same date from the head of operations that the claimant had been risk assessed.

Further correspondence resulted in a letter of 3 March from the deputy governor, stating that it was alleged that the claimant had remained in contact with her former partner, described in the letter as her boyfriend, for two years; that he was one of a gang charged with attempted murder; and that the claimant had been in contact with him by telephone from prison on the day before the alleged attempted murder. The letter recorded that the authorities had reservations regarding the claimant's suitability for transfer to open conditions or ROTL as a consequence.

Although initially not a great deal of explanation was given for the claimant's unfavourable risk assessment, further material was produced in response to correspondence, and more still following the grant of permission in this matter. The police take the view that the telephone conversation between the claimant and her former partner may be relevant to the police investigation and the prosecution's case against the defendants charged with attempted murder. The defendants in the criminal case are said to have been involved in violent offending, including the indiscriminate use of firearms, and are said to be extremely dangerous individuals who might seek to harm those who could give evidence against them.

The claimant, in her evidence in response, has said that she has been questioned by the police regarding the telephone conversation, but she was and is unwilling to assist. She says she cannot remember whether she had a telephone conversation on the day in question. She does not accept that there is a risk to her. She says that none of her contacts in the community have been threatened by the accused or on their behalf. She says that any risk to her could be addressed by enabling ROTL to take place to the home of her mother, who lives elsewhere than the community in which the accused persons are said to operate.

The evidence of the governor of Drake Hall indicates that the claimant did not apply formally to be re-classified as suitable for open conditions, but that if she had, the governor would have refused the application. The issue of re-classification and the move from one prison to another do not, as such, raise an Article 8 issue on the facts of this case since Mr Hugh Southey, for the claimant, accepts that prisoners at Drake Hall can be, and regularly are, granted ROTL. The real issue is the lawfulness of the denial (since the claimant's move, save at Christmas) of ROTL itself.

I turn to the Prison Rules and Service Orders. Rule 4.2 of the Prison Rules 1999 provides that:

Rule 9 provides that:

There is an Instruction to Governors (IG 36/1995) dealing with ROTL. The relevant paragraphs are as follows:

The release of the claimant to spend time at home with her children at a time when the end of her sentence was a long way off could only fall under the heading "compassionate licence". That is dealt with in part 3 of the Instruction, in particular in paragraph 3.9, headed "Primary carers":

The claimant in this case submits that rule 4.2 of the Prison Rules requires account to be taken of the need to maintain her family ties when the discretion contained in rule 9(3)(a) or (h) is exercised to refuse her release on temporary licence. In my judgment, however, rule 4.2 does not help the claimant. It requires prisoners to be encouraged and assisted to maintain such relations "with persons and agencies outside the prison" as may best promote the interests of the prisoner's family and the prisoner's own social rehabilitation. If this is meant to say that the maintenance of ties with a prisoner's family is to be encouraged, it seems a very roundabout way of saying it. In any event, the usual way of maintaining family ties is by facilitating visits to the prison by the family, which the claimant has so far been unwilling to have for some years.

Rule 9(3), however, plainly is relevant. But Miss Nicola Greaney, for the Secretary of State and the other defendants, takes issue with the concept of a "discretion to refuse" ROTL. She submits that there is a discretion to permit ROTL in the circumstances set out in rule 9(3) and the Instruction to Governors.

The first substantial question for me to determine is whether the refusal of ROTL constitutes an interference with the claimant's right to respect for her family life under Article 8 of the European Convention on Human Rights. It is not in dispute that Article 8 is engaged on the facts of the present case, but Miss Greaney argues that there is no interference.

In R(P and Q) v the Home Secretary [2001] 1 WLR 2002 the Court of Appeal reviewed the Strasbourg jurisprudence on prisoners' rights under the Convention, in particular Article 8. In the judgment of the court delivered by Lord Phillips of Worth Matravers MR, at paragraph 78, the court said:

The court went on to say at paragraphs 82 and 83:

The claimant argues that the effect of the defendant's decision to refuse her ROTL is to separate her entirely from her children. The defendants do not agree; and nor do I. It only has that effect insofar as she chooses to make it so by refusing to have visits from the children.

Mr Southey argued that it is generally for parents to decide how to exercise parental authority over their children (see Nielson v Denmark [1989] 11 EHRR 175, a case about a mother placing her child in a psychiatric hospital), and that it is for the mother to decide what is in the children's best interests in the present case.

I am not prepared to accept as conclusive in this case the claimant's view of what is in the children's best interests in regard to being told the truth about where their mother is. There is no independent evidence on this topic before me, but I should have thought that it is at least a tenable point of view that one day the children will find out that they have been deceived, and that that discovery will have a traumatic effect on them. I do not think it is for me to come to a conclusion either way.

So it does not seem to me that it can properly be said that the effect of the defendant's decision is a complete separation of mother from children, even the a sense of coming face to face in visits in the usual way. In accordance with the P and Q decision, I do accept Mr Southey's submission that keeping the claimant in custody without allowing her ROTL is an interference with her Article 8 rights and those of her children. But it is a far less serious interference than the decision in P and Q to remove the toddlers from their mothers and place them in foster care. It follows that, although it must be justified by the defendants under Article 8(2), it is more readily justified: see paragraph 78 of the P and Q judgment.

That brings me to the second and central topic: was the interference with the claimant's and her children's Article 8 rights proportionate and necessary? Mr Southey's first submission under this heading is that the defendants failed to consider the question of Article 8 rights, so it must follow that they cannot have established the defence of proportionality. Mr Southey relied on the case of R(CD and AD) v the Home Secretary [2003] 1 FLR 979 (a decision of Maurice Kay J, as he then was). The claimant, a 19 year-old woman prisoner with a five-month old baby, was excluded from the mother and baby unit at the prison for misbehaviour of various kinds, including racism. The baby was placed with a friend of the mother outside prison. Two jointly instructed experts both reported that it was in the best interests of the baby to be reunited with the mother as soon as possible. It was agreed by both parties before the court that the Secretary of State was obliged to have regard to the best interests of the child, and the judge found as a fact that the decision-maker had not had regard to the best interests of the child in making the decision. It was accordingly quashed.

In the present case, Mr Huntingdon, the governor of Drake Hall, says in his witness statement that he took full account in reaching his decision of the claimant's right to respect for her family life. This is not simply an assertion or rationalisation after proceedings were launched. He points out that the claimant first arrived at Drake Hall shortly before Christmas 2004, and he and his staff worked hard to facilitate Christmas leave for the claimant with her children at short notice. It is in any case, I should have thought, self-evident that children generally benefit from having their mother at home. I have no reason to think that Governor Huntingdon was unaware of that, and it does not seem to me that the threshold point under this heading has real substance.

The central issue is whether the decision to refuse ROTL other than over Christmas was substantively disproportionate. No issue now arises about the temporary consequences of the assault charge which are, in my view, rightly accepted to be water under the bridge. Mr Southey's complaint is that, even when the findings of guilt in that regard were quashed, the restriction was maintained on other grounds, namely those following from the claimant's contact with her ex-partner the day before the offence which he allegedly committed. There is also an allegation, though it is not in the forefront of the defendant's case, that the claimant made unauthorised use of a mobile phone in prison to call her former partner.

In the light of the plain words of Article 8, Mr Southey submits, and I accept, that it is for the defendants to advance sufficient justification for the decision under challenge to show that the restriction is in accordance with the law and is necessary in a democratic society in the interests of public safety for the prevention of crime and the protection of the rights and freedoms of others. But Miss Greaney submits, and I also accept, that in an Article 8(2) case, the decision-maker is entitled to a discretionary area of judgment: see per Dyson LJ in R(Samaroo) v the Home Secretary [2001] EWCA Civ 1139.

Part of the justification put forward in this case is the potential physical threat to the claimant outside prison from the gang. While this may be a real threat on the facts, it is not to my mind a convincing argument justifying interference with Article 8 rights. If the claimant wishes to risk her own safety, she is, in my view, free to do so. But the risk to others, whether to her children or members of the public, from a possible gang attack on her cannot be ruled out. Moreover, there is an obvious and different risk, namely that the claimant out of prison may be intimidated or pressurised into refusing to testify about the telephone conversation or, if she does testify, into tailoring her evidence. In those circumstances it is rational and necessary, at least for the time being, to restrict the claimant's release on temporary licence. The defendants are entitled to conclude that there is no less restrictive means of interference with the claimant's and her children's Article 8 rights which will achieve the same result.

I do bear in mind that the claimant had previously for three years been allowed release on temporary licence without incident: so the decision under challenge was a departure from the status quo. If it had not been, and we were looking at an initial decision to refuse release on temporary licence on first admission to custody, the claimant's case might have been weaker for other reasons. But that does not arise here. The arrest and charging of the claimant's former partner on very serious charges, and her telephone contact with him on the day before the alleged offence, create a rational basis for a change from that status quo, and the defendants' decision falls within the discretionary area of judgment identified by Dyson LJ in Samaroo.

The final head of complaint is Mr Southey's argument that the decision about ROTL was procedurally unfair. This falls under two sub-headings. Firstly, the children were not represented during the decision-making process. It is true that they were not, but nothing in the domestic or Strasbourg case law has been put before me to demonstrate that they should have been. In any event, whatever the position might be in a more typical case about primary carers visiting children old enough to understand what is going on and where the children know the truth, any representative of the children in the present case would have been unable to ascertain their wishes without betraying the fact that the claimant was misleading them. Accordingly, it does not seem to me that any representative of the children could have put forward any representations beyond the obvious one that children would be better off in the company of their mother at home and would prefer to have their mother at home.

Secondly, it is argued that the claimant was not told the allegations against her and given a chance to respond before ROTL was first refused. But, as Mr Southey rightly submitted, the standards of procedural fairness depend on the context of the decision: see, for example, Doody [1994] 1 AC 531 at 560. The procedure on an application for ROTL is that, when the application is received, a risk assessment is made. The Board receives the risk assessment and makes a recommendation to the governor. The governor then makes a decision. If the decision is to refuse, reasons are given to the prisoner. The prisoner can then re-apply immediately, indicating why she is dissatisfied with the reasons. This is not a type of case where the claimant only has, say, one chance a year to make the application and must in all fairness be given the reasons why there might be a refusal before the decision to refuse is. Although, as I have said, the claimant was initially told little about the reasons for refusal, there was within quite a short time sufficient information forthcoming for her to be able to make the appropriate representations.

Accordingly, I reject the grounds of challenge to the decision in all respects and dismiss the application. I should, however, say that the defendants must, as I am sure they will, keep the situation under careful review. There may, for example, be changes in the criminal case which justify a change in approach to the claimant's request for ROTL. If the criminal case comes to trial, or pleas of guilty were to be entered, that certainly would warrant reconsideration of the present position on ROTL. Other considerations will also arise as the claimant's probable release date draws near, and the question of re-settlement leave may arise. But, on the situation as it stands today, for the reasons I have given, I must dismiss the application. I do so while expressing my gratitude to counsel for their persuasive and helpful submissions.

MS WESTON: My Lord, I am here on behalf of Mr Southey. Two things: first of all, subject to whatever my learned friend has to say, we ask for a detailed assessment of the claimant's costs; and secondly, I am instructed to make an application to your Lordship for permission to appeal. Clearly, the extent of my experience of the case is limited. However, in terms of your Lordship's judgment, it may be that the Court of Appeal might take a different view as to the significance to be attached to the mother's right to make a determination about what is in the best interests of her child in the light of Article 8 and the authorities relied on by Mr Southey. On that basis, I make the application.

MR JUSTICE BEAN: I think it must be for the Court of Appeal to say whether they wish to hear the case. The decision is partly fact-specific, although it does raise issues of law. So I will leave it to them.

MS WESTON: I am grateful.

MISS GREANEY: My Lord, I do not make any application for costs.

MR JUSTICE BEAN: Thank you very much.