Blackett, R (on the application of) v HMP Risley & Ors

MR JUSTICE UNDERHILL: This is an application for judicial review of a decision of the Parole Board, communicated by letter dated 22 August 2007, imposing a condition of residence at approved premises as a condition of the claimant's release on licence. The governor of the prison at which the claimant was previously held and the Probation Service are also defendants. The approved premises which are the subject of the condition are a bail hostel. The decision to impose that condition was made contrary to the claimant's position, supported by a report from the Home Parole Officer on an earlier occasion that it was sufficient that he should be subject to a condition of residence with an aunt of his living in Salford.

It is now conceded that the decision of the Board to impose the condition in question was reached without notice to the claimant of the proposed conditions or, more particularly, of the reasons why it was being sought as set out in the supporting dossier; and that the question will therefore have to be reconsidered after those materials have been made available to him. It is common ground that that consideration can take place within a comparatively short time -- in the order of three weeks. The only issue for me this morning is what order I should make pending such reconsideration.

I have been addressed by Mr Durance for the claimant and Mr Thomann for the governor of the prison and for the Probation Service, both of whom have put their submissions persuasively and moderately. Mr Sachdeva for the Board is neutral on this issue.

Mr Durance submits that I should make an immediate order quashing the determination of the Board insofar as it imposes the condition in question. I should say, for the record, that he does not oppose the imposition of two other conditions which appear in the letter. He has also made it clear that he would consent to an order in whatever terms were necessary to ensure that the claimant was required to reside with his aunt in accordance with his own previously proposed licence conditions. He submits that unless I proceed in that way I would simply be endorsing and perpetuating the Board's unlawful decision.

Mr Thomann, by contrast, submits that I should make no immediate order. Whilst he accepts that the decision of the Board will in due course have to be quashed, at least in the relevant respect, he submits that it should remain in place until the pending reconsideration has taken place. He points to various indications in the papers before the court that some of those with the responsibility for assessing the risk of re-offending which the claimant poses, and in particular the Multi-Agency Public Protection Panel ("MAPPPA") which met on 26 July 2007, appear to have taken the view that there was a high risk of the claimant re-offending when released which required to be met by strict licence conditions, including a condition of the kind in fact imposed. He says that the public interest in ensuring that maximum protection is in place during the short period before the matter can be properly reconsidered by the appropriate body, namely the Board, justifies my taking the course which he proposes.

Mr Durance accepts that it would be open to me, in the exercise of my discretion under CPR Part 54, to make an order of the kind proposed by Mr Thomann, but he says that it would be wrong for me to do so. The starting point is that an unlawful order has been made. It was for the defendants to put forward clear and persuasive evidence of a real risk to the community such as to justify the exceptional course of my leaving in place, albeit for a temporary period, a decision which has been conceded to have been reached unlawfully. He points out that the defendants have not put in any evidence in support of their application and have been constrained to support it by reference to scraps of evidence and information appearing from the papers.

I have concluded that I should accept Mr Thomann's submissions. I accept that the evidential position is not entirely satisfactory. I agree with Mr Durance that it would have been better if the court had been given a witness statement setting out clearly the matters relied on in support of the application for what is in effect a stay. There are nevertheless strong indications in the papers that there is indeed, and has been adjudged by responsible persons to be, a serious risk requiring to be met by conditions of the kind contained in the order; and I believe that I ought to take those into account. Mr Durance has referred me to other indications in the papers that the risk posed by the claimant can be judged to be low, but I am not satisfied that that is really the position. I must also note that Mr Durance himself is not in a position to put before me any evidence directed specifically to the particular issue which I have to address. In particular, he has not advanced any particular prejudice suffered by the claimant as a result of being subjected to the condition which he challenges over the three or more weeks during which it has been in place. No doubt it is a more restrictive condition than that for which he contends, but apart from that, no particular difficulty has been drawn to my attention. (I should mention in that connection that I am told that the Probation Service has sought to impose particular conditions on the claimant's movements during the periods since his release, one of which may have the effect of making it difficult for him to take up an offer of employment with his uncle. I am not clear to what extent this matter is formally before me, but Mr Thomann has made clear that those conditions are not now insisted on, and insofar as they have been creating any difficulty for the claimant, that should not now continue.)

Balancing therefore the prejudice to the claimant of being subjected to a formally unlawful decision for a comparatively short period before that decision can be reconsidered in the round -- it has to be accepted that it may well be reimposed -- against the risk to the public if the condition is now quashed, I find that the balance comes down in favour of my maintaining the decision in place until reconsideration can occur.

The precise form of order remains for discussion. I have been handed by Mr Thomann a draft order. My present view, subject to any submissions, is that the structure of that order is satisfactory. The effect of it is that the decision of 22 August, insofar as it imposes the challenged condition, will be quashed as from the date of the fresh decision. That is the effect of order 4 of Mr Thomann's draft. The other aspects of the draft essentially consist of a timetable for reaching that position. I have been told in submissions that the formal paperwork can be submitted by the Probation Service within four working days. On that basis, the date which appears under order 2 of Mr Thomann's draft should be 28 September. There will have to be an order for the claimant's representatives to make representations within seven days, so that needs to go in. Then, as to the Parole Board, I think what I am inclined to say is simply an order that they should consider -- whatever the correct form of words is -- forthwith on receipt of the claimant's representations. Everyone in court, I am sure, knows what forthwith means, but it effectively means as soon as reasonably possible. In practice, it has been explained that it will be considered on the same day if there is a member of the Panel available; if there is not, then we are only looking at an extra day or two. If we proceed down that line, I am not sure that item 1 in Mr Thomann's order is necessary, that is to say it does not make any sense if the proceedings are to be stayed. The key thing is that the order which he has at item 4 will be made, but only on the date in question.

The most important thing is that the word "licence" is misspelt.

MR THOMANN: I do apologise.

MR JUSTICE UNDERHILL: It is a noun not a verb. As I say, subject to submissions, I hope I have said enough for an appropriate order to be drafted giving effect to what I propose.

MR SACHDEVA: My Lord, we do not propose to pay anyone's costs, for obvious reasons.

MR JUSTICE UNDERHILL: No, and I do not think it has been suggested you should. I suppose there is room for argument that someone from the Parole Board should have noticed, but nobody is suggesting that.

MR SACHDEVA: I do not think anyone is seriously pursuing us. We have been fairly neutral throughout.

MR JUSTICE UNDERHILL: You need not argue further about it. Mr Thomann in his draft says that he is going to pay. I see it is "the defendants". I must say that I assumed that meant the defendants for whom you acted, Mr Thomann.

MR THOMANN: I do not see how I can resist that.

MR JUSTICE UNDERHILL: I think that will be the first and second defendants. As between themselves, they can no doubt sort it out as they have instructed the same counsel. That is the way I am thinking. I will hear submissions if necessary.

MR DURANCE: My Lord, there are three issues. Firstly, insofar as what is now paragraph 1, if the Probation Service forward any request on all parties, I would certainly be happier. There is a risk that it is simply going to be forwarded again to the Probation Service.

MR JUSTICE UNDERHILL: Yes, I was not meaning to bless the precise wording. I am not sufficiently familiar with the formalities. The wording "to forward any request" does not sound quite right, but certainly the thinking, which I am sure you can draft appropriately, is that the Parole Board and you will, on the same occasion, get what the Probation Service is asking for and its reasons and its dossier.

MR DURANCE: My Lord, yes. Insofar as costs, I would also ask for a detailed assessment of the claimant's publicly funded costs.

MR JUSTICE UNDERHILL: Yes, you can have that.

MR DURANCE: And finally, I am of the view that, given the difficulties which have arisen subsequent to release, and the conditions which have been imposed by the probation officer(s) on the claimant, there should be a paragraph within the order -- I have discussed it with my learned friend and he does not oppose this -- indicating that the only licence conditions pending the conclusion of the stay are those set out in correspondence.

MR JUSTICE UNDERHILL: If he does not oppose that, I certainly would not have any difficulties about it, although I would be inclined to think it should not be an order, it should be one of the undertakings.

MR DURANCE: Yes, I am grateful and I have nothing further.

MR JUSTICE UNDERHILL: Could I ask you -- I suspect you can sort it out between yourselves, but I suspect it will be Mr Thomann since it is on his system -- to provide a draft as soon as possible. If you get it to me by lunchtime I will certainly be able to initial it over lunch. For various reasons I may not be here all afternoon, so if you do not get it in quickly, you may have to wait until tomorrow.