Walker v Secretary of State for Justice

David Walker is a prisoner serving an imprisonment for public protection sentence (an “IPP” sentence). The tariff that was imposed of 18 months expired in 2007. His next parole hearing is fixed for February 2010 and currently he is assessed as a Category C prisoner. Sadly his father, who lives alone in the Broomhill area of Sheffield, is terminally ill and not expected to survive much longer, indeed probably only a matter of days.

Mr Walker was informed through the Prison Service of his father’s illness and indeed of the fact that he was expected to die imminently. Understandably, of course, Mr Walker wants to visit his father, and to that end it appears that an informal approach was made within the Prison Service for him to have leave, essentially on these compassionate grounds, and therefore of course, and if possible, for that to be before his father died so that he could see him. The practical result of that is that there weren’t the usual channels of an official request for temporary leave, whether it be release on temporary licence (“ROTL”) or escorted leave.

The governor of HMP Whatton considered Mr Walker’s request and made a decision, which was first of all not to permit him ROTL, and, second, not to permit him to have an escorted visit to his father at his father’s home. However, it was made clear that if his father were to be moved to a hospital or hospice even temporarily, an escorted visit would be allowed. That, very properly, has been taken as in effect the imposition of a condition or conditions that an escorted visit could only take place if it were at a hospital or at a hospice. Mr Walker seeks to challenge that decision by way of judicial review, claiming, in essence, a breach of his Article 8 rights in respect of maintaining contact with his parent in the circumstances of his imminent death.

In terms of the legal framework, plainly Rule 9 of the Prison Rules gives the Prison Service power to release a prisoner on any conditions. It is clear that the decision to release on conditions in this case was, as I have made clear, not by way of release on temporary licence (that is common ground), but rather it is a release on a condition that there would be an escort. It is also clear from Rule 9(4) of the Prison Rules that, where temporary release is to be considered:

“A prisoner shall not be released under this rule unless the Secretary of State is satisfied that there would not be an unacceptable risk of his committing offences whilst released or otherwise failing to comply with any condition upon which he is released.”

That is, essentially, the unacceptable risk test and that is of course confined in those terms to a risk of offending or otherwise failing to comply with any condition, the most obvious of which is of course that he should not escape. That might arise, of course, if for any reason the escort was permitted to release him from handcuffs for a short period of time. Those are the kind of risks that would be considered.

The rationale behind the decision has since been made clear in a letter from the Treasury Solicitor in response to the pre-action protocol letter that was written by the claimant’s solicitors, in which it was said:

“We are instructed [by the Secretary of State for Justice] that HMP Whatton is prepared to agree to an escorted visit for your client to visit his father provided his father is in a hospital or hospice. Our client’s view is that there are security concerns about an escorted visit taking place at your client’s father’s address at Bromwell Estate. [that is a mistake for Broomhall Estate] and that there is an unacceptable level of risk in permitting a visit at this address. These concerns are:

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Attention has recently been drawn to the estate following a drive by shooting in broad daylight, which resulted in a fatality as well as injuries to others;

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Mr Walker is a former resident of the estate and if recognised there may be risk to both Mr Walker as a convicted sex offender and the staff if an escorted visit were to take place; and

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Mr Walker’s father lives on his own and it is now common practice for visitors to let themselves into the flat via a security key lock system as he is bed bound.”

Arrangements to move the claimant’s father have plainly and very properly been considered in some depth. Understandably his father had indicated a very clear wish not to go to a hospital. Therefore that has been ruled out as impracticable. Unfortunately it has also proved to be impracticable to admit him to a hospice at short notice for a number of reasons. I do not need to go into those reasons because those reasons have been explained to me and are perfectly proper reasons, which in any event are not the subject of my scrutiny today.

The claimant’s father’s general practitioner has been involved in the consideration of these arrangements and indeed, when I rose to consider this judgment, there was still the possibility that a solution could be found, as I understand it, and very generously, at the general practitioner’s surgery in a consulting room, but that would be dependent on appropriate transport for father. On returning into court it appears that that possibility had become rather more of a practical possibility, in that it had been discovered that in the meantime there was a suitable private ambulance service that could transport the father. So it appears at this late stage that for the first time there may be a real possibility that the governor’s concerns can be addressed by a practical solution. Indeed I very much hope that that can be achieved.

However, that does not relieve me of the duty of resolving the issues that have been raised in this case by way of public law considerations, as to whether or not the decision-making process was in accordance with public law principles. The facts have to a certain extent been addressed by a witness statement from Mr Dickinson, the claimant’s solicitor, and I accept Mr Murray’s correct warning to approach that evidence again from a public law viewpoint, in that it is not the function of this court to assess the risks that were perceived by the governor afresh in any sense. I do not do so. Nevertheless it is of importance that I should consider those facts that are set out in Mr Dickinson’s statements and I do.

Amongst those facts are that he has personal information as to the Broomhall area of Sheffield being a native of Sheffield himself and gives a very general impression of the area as perhaps not being of the kind of area that in some cities achieves certain notoriety. In terms of the drive-by shooting, he had done some further research into the reports of that matter, and Mr Southey, the claimant’s counsel, has sought to analyse that by showing that, when those reports are read, it would appear that none of the people involved in that very serious incident actually came from the Broomhall area. It was by chance that the victim and his friends were visiting someone in that area. It is not for me to decide whether that makes the information of a drive-by shooting less important, but it is relevant only in this sense: going back to the decision-maker as to how much importance he should or should have attached to the information that was given.

It was made clear by Mr Southey at the outset that, by the very nature of these proceedings and the urgency with which they have been brought on, the underlying evidence behind the risk assessment, if indeed it can amount to that, has not been supplied; indeed is probably not even available. In terms of the perceived risk of Mr Walker’s being recognised, simply the matter is put in this way: that his offences themselves, whilst serious of course and serious enough to justify an indefinite sentence, taking into account the risk to the public, were nonetheless not at the higher end of the sexual offences spectrum. That is simply meant to highlight that, in terms of risk, they may not represent the kind of sexual offence which tends to generate the revenge type attacks that are sadly often attached to offences against children. Nevertheless, as I say, these were serious offences and they were sexual offences on two young women, but the importance of these, it seems to me, is that the perceived risk in respect of recognition is not a specific risk but a generic risk.

There is a further consideration that was mentioned in the Treasury Solicitor’s letter, which is the fact that people can let themselves into the father’s house, but it appears only if they have the security key to do so. Beyond the fact that people can let themselves in, the risk is not enlarged any further. There are further facts, though, which I am invited to consider, that is to say information that undoubtedly would have been available to the governor, and that is that risk assessments have been prepared by the Probation Service in connection with his possible release and indeed in connection with his forthcoming hearing before the Parole Board at the beginning of next year. I have read those assessments. In summary, they indicate that any risk of the claimant’s offending (assessed as medium) or any risk to him can be managed by his going to a hostel first and thereafter returning to his home. It was noted that no specific condition precluding contact with the victim was necessary in the view of the writer. In those circumstances, the writer felt able to recommend release on licence.

The point of those particular assessments are simply this, that if taken into account they indicate a relatively low level of risk, then the question is whether the governor really overstated the risks of the visit taking place at the claimant’s father’s own home. The claimant’s case is just that the risks in relation to an escorted visit are indeed or have indeed been overstated and, further, not balanced properly with the claimant’s Article 8 rights, which Mr Southey puts as a positive duty, citing in particular the decision of the European Court of Human Rights in Ploski v Poland [2003] I PLR 120 as support for his proposition, if that is not in fact derived from Article 8 itself, that there is a positive duty, which is translated into this situation, to ensure that prisoners maintain contact with their family, and that extends to maintaining, as it were, live contact or face-to-face contact particularly where a parent is dying.

Ploski ,is cited as an example of a proper approach to this kind of situation, although I take Mr Murray’s point that an analysis of the case of Ploski reveals a very different and very inflexible situation on the part of the Polish prison authorities. The Polish prison authorities in that instance, where the prisoner had been guilty of two offences of ‘larceny’, took the view that he was simply a convicted thief and therefore would not be allowed to attend the funeral of his mother. Without considering the possibility of an escorted visit or whatever or escorted release, the European Court held that there was a positive duty to balance the risks and to consider the possibility of an escorted release. It was said at paragraph 37 that the court was aware of the problems of a financial and logistical nature caused by escorted leave. However, taking into account the seriousness of what is at stake, namely refusing an individual the right to attend the funerals of his parent, the court was of the view that the respondent state could have refused attendance only if there had been compelling reasons and if no alternative solution, like escorted leave could have been found.

The compelling reasons of course derive from Article 8 itself, and those compelling reasons are plainly set out as being a risk which involves public safety or resource implications, that being the way in which economic wellbeing has been interpreted. In this case it does appear that financial considerations or resource considerations simply have not come into the matter. Rather, therefore, the claimant’s case is that there has not been a proper balancing of the risks in respect of public safety. Public safety of course extends not only to the claimant himself but also to the escorts who have to escort him and it seems to me, having heard the argument, that it is the risk to the escorts that has been considered perhaps the greater of the concerns, not to minimise of course the risk to the prisoner himself.

It is plain, and I do not think this is in dispute at all, that contact between father and son at this critical time in the family life plainly exists. It is all the more important where the parent is actually dying or, in the instance of a funeral, where that parent has actually died. There is perhaps little in terms of the kind of consideration I have to give to this case between the two situations. If I were to choose between the two I would certainly say that it would be important if at all possible for a son to see his father before he died rather than attend his funeral after he had died. That perhaps is self-evident and, may I say, was plainly in the mind of the decision-maker when he made his decision. Otherwise he would not have made the decision that there could be any kind of release had he not thought that it was important for the claimant to see his father before he died.

The defendant’s case, far from being an illogical decision, that the escorted visit must be to a hospice or hospital is nevertheless based on risk that is borne out of known facts. Therefore in public law terms, submits Mr Murray, it could not be said that the reasoning was illogical, in other words that the decision was an unreasonable decision. It is the defendant’s case in simple terms that the risk to the claimant and his escort was unacceptable. That is exactly what was said in the Treasury Solicitor’s letter. Therefore, as such it justified a decision that an escorted visit to his father’s home was not to be permitted.

It was urged by Mr Murray that under Chapter 4 of PSO 6300, there is, for example, a presumption against granting release on temporary leave to Category C prisoners unless there are exceptional circumstances. Indeed there were no exceptional circumstances here, but there again the decision ultimately is not challenged on the grounds that there was a decision not to allow release or temporary release.

I have already referred to the unacceptable risk test under Rule 9(4) for temporary licence. I am conscious that I must not be over-analytical of the decision that was made in this case and the factors that led to it. It seems to me that there has to be some analysis of those factors to judge whether the necessary balancing exercise was carried out. For example, there does not seem to have been consideration of the details of managing the escort, so as, for example, to minimise the possibility of recognition; timing of visit; lack of uniform; type of vehicle and the like. In terms of the approach as a matter of law, it seems to me that the right approach is essentially to consider whether Article 8 is engaged. In my judgment, Mr Southey’s submission that Article 8 creates a positive duty is correct and is rightly qualified as not being in any sense an absolute duty. Article 8 makes it clear, in the way in which it is framed, that there is in effect a positive duty on the decision maker to conduct a balancing exercise as between the clear right to maintain a family life – in this instance a specific area of family life, to ensure the visit of a son to a dying father – as against the risks generically referred to as public safety which properly analysed, take into account the kind of factors that were involved in this instance. I do not think that Mr Southey criticises for one moment the need to balance the importance of a son seeing his dying father with any risks that actually exist in terms of safety both to the claimant and to in particular to his escorting officers. The question, however, arises as to whether, nevertheless, the risks have in any sense been overstated.

Looking at that positive duty, how does that work in practice in this instance? Clearly the governor was correct, first of all, to decide in principle that it would be right to permit the claimant to visit with his father. By that, it seems to me, he implicitly took into account or applied the unacceptable risk test in Rule 9(4), in other words (probably coupled with the probation officer’s assessment or certainly consistent with it) that for this temporary release, as it would be, there would not be perceived a risk of actually offending.

Then, in principle was it right to attach conditions to escorted leave? The answer to that plainly must be “yes”, the most obvious condition being that the prisoner should not endeavour to escape. Then, in terms of the precise conditions, it is plain that the decision-maker had to balance the risks in terms of public safety, safety of the claimant and safety of the escort. I take it to be a correct statement of the law that there must be compelling reasons for effectively refusing an Article 8 right for a son to see his dying father. The balancing exercise in this case, as I understand it to be, has essentially been derived from a perception rather than a real assessment of risk as against consideration of whether there is a compelling reason why the claimant should not have an escorted visit to his father’s home.

It seems to me, from the argument that I have heard today, that there is some difficulty in the guidance given to governors. Where there is a determinate sentence, PSO 6300 is clear. The test is there given as to where a family member is terminally ill. Logically it would seem, however, that similar considerations would go into the balance for determining the same considerations in respect of a prisoner serving an indeterminate sentence, subject only to the unacceptable risk test. That unacceptable risk test is not the kind of unacceptable risk that is identified by the Secretary of State in the Treasury Solicitor’s letter, which was a risk which encompassed a risk not only of offending but also of possible safety implications, and therefore it is necessary to consider the decision itself.

It actually says in terms that release, as I have indicated, was acceptable in principle and therefore, as I have indicated, there was no unacceptable risk under Rule 9(4). But then the balancing exercise was necessary between what I have found to be the positive duty to comply with Article 8, and the initial approach of the governor was it seems to me to do just that. First of all, through his, the governor’s, staff the claimant was informed of the position of his father’s imminent death. Secondly, it is clear that the governor decided in principle, as I have indicated, to release the claimant, not a release on temporary licence but a release to visit his father escorted.

Then came consideration of the conditions. Some degree of analysis is important at this stage. The perception of risk was essentially based on two matters. I accept Mr Southey’s submission that the third factor, the ability of anybody to come into the house, was itself a freestanding factor and clearly not one which would logically tip any scale However, analysis of the two other factors are, first of all, that there had been a shooting incident in the area. That was a perfectly proper piece of information to consider and indeed the decision maker was bound to consider it once it came to his notice, as it did. The second factor was, as I have indicated, in my judgment, no more than a generic risk, which would be present in respect of any sex offender returning to his home and the generic risk of possibly being recognised.

It seems to me that this is where I can ask the question, were those compelling reasons on which to impose conditions that the visit should only take place if it were in a hospital or hospice? Because of the informal way in which this decision came to be, it actually became clear that in effect those conditions became a refusal and it became a refusal if neither option was in the event open. To my mind, that was always something which was bound to be revisited as necessary in the circumstances in which this decision came to be made, and there was, in my judgment, an obligation to revisit the perception of risk to balance it, and continue to balance it, in terms of the need already recognised by the decision-maker for the son to see his dying father. It seems to me there was an obligation to see if there was any way of managing a visit to the father’s home that sufficiently balanced the perceived risks that arose from the superficial information in respect of the shooting incident – because it was no more than that – and a generic risk that I have already identified. It seems clear (and I do not wish to sound over-critical) that no consideration was given to addressing the possibility of recognition by ensuring what I am told is the usual procedure for the escort to be in plain clothes, as would be the prisoner, was followed, nor was consideration given for the right kind of vehicle to minimise the perceived risks.

I am confident that, had those conditions either been considered at the outset in the context of contingencies if neither hospital nor hospice were practical or if it had been revisited when it certainly became clear that each condition proved to be stumbling blocks, I am confident that the governor would and indeed ought to have given further serious consideration to a visit taking place at the father’s home.

It still, even now, has to be a balancing exercise, but I am not satisfied that a sufficient balancing exercise has taken place in what has been an evolving decision in respect of managing the principle of allowing this claimant to visit his father. If I am to give any guidance at all at this stage and if it is necessary still to allay proper concerns, then it seems to me that the solution that appears to be alive at present of a room at the general practitioner’s surgery, together with an ambulance transport, would be ultimately a solution which would address all the concerns which have been considered but, as I have said, not necessarily and properly balanced as of yet.

For all these reasons, first of all I grant permission and, secondly, I am prepared to grant judicial review of the decision-making process, which unfortunately has had to take place on a very informal basis and which possibly has suffered from that informality in the need for a proper balancing exercise in the making of the decision. For those reasons I would quash the decision as it exists at present and give the relief sought for the matter to be reconsidered, I hope with the guidance that I have given in the judgment I have just delivered. If I may say this, it seems to me that ultimately a solution that is acceptable, as it were, to both sides, is likely to be achieved.