Ahmad v London Borough of Brent & Ors

There are various applications before the court. Each of the Defendants applies that the Claimant’s claim be struck out pursuant to CPR 3.4 or, in the alternative, that summary judgment be entered in their favour pursuant to CPR 24.2. The Claimant applies to re-amend his Claim Form and, so far as is necessary, for an extension of time under s.7 of the Human Rights Act 1998 (“HRA”) in respect of Article 8 claims against the First and Third Defendants. During the course of the hearing Mr Bowen QC, for the Claimant, applied to amend the Particulars of Claim.

The Claimant murdered his eldest daughter, Farah, on 22 June 1991. She was 19 years old. On 10 April 1992 he was sentenced to life imprisonment, with a tariff of ten years. He was released on licence on 15 October 2001. He has a younger daughter, Alia. She was then 13 years old. Condition 7 of the licence provided that the Claimant “should have no direct contact except by telephone with his daughter (Alia) without prior written authority from Social Services”. On 4 September 2006 he was recalled to prison for an alleged breach of that licence. Following a decision of the Parole Board dated 22 August 2007 he was released back into the community on 31 August 2007.

The Claimant seeks damages against all four Defendants under the common law and the HRA on the basis that the recall was wrongful and unlawful, his subsequent detention for 50 weeks was similarly flawed, and related matters.

On 26 April 2006 Ms Joseph, the Claimant’s probation officer, wrote to the First Defendant asking it to assess the risks posed by the Claimant to Alia in the light of her age. On 11 August 2006 Ms Newcombe, a senior practitioner with the First Defendant, contacted Ms Joseph and stated she would assess the Claimant. Ms Newcombe visited Alia and her mother at their home on 24 August 2006. In a report dated 1 September 2006 she concluded that:

“The overall risk to Alia is high and immediate action needs to be taken to safeguard her future safety and welfare.”

The Report noted, inter alia, that:

•

“Mr Ahmad’s life licence strictly says that [there] is to be no unsupervised direct contact, without written authority of SSD.

•

In the Parole Board’s report, the risk was felt to be reduced as long as Mr Ahmad did not have direct contact with his daughter in the family home. This forms part of the decision for early release.

•

Mr Ahmad has been visiting the family home since 2004 and is currently staying there three times per week or more. Mrs Ahmad has admitted that she knows this is (sic) direct contravention to his life licence terms.

•

Mr Ahmad has not been covert about his visits and has informed his Probation Officer. However, Probation SvCS have not alerted SSD.

•

The current PO, Tess Joseph, made a referral to this Dept on account of Mr Ahmad’s increasing attitude and lack of remorse. Comments were being made such as ‘My daughter betrayed me’. ‘The Judge didn’t want to give me a life sentence’.

•

Mrs Ahmad is colluding with her husband in his visits and cannot protect her daughter.

•

Alia has stated that she does not feel threatened or intimidated by her father and that she was happy at home, however, Farah said the very same two weeks before she was murdered. This raises concerns.

•

A forced marriage risk assessment has been undertaken in which the risk indicators are high.”

Ms Newcombe sent her report to Ms Joseph who on the same day, 1 September 2006, wrote a Progress Report to the Lifer Review and Recall Section (“LRRS”) of the National Offender Management Service (“NOMS”). Ms Newcombe said she delayed completion of this report “until Brent Social Services had visited Allaya Ahmed to take account of emerging and changing risks to Allaya Ahmed as she reaches her maturity”. The Progress Report states, inter alia, as follows:

“1.

... Reviewing previous case files in close detail that pre-date my supervision of Mr Ahmed it is clear that ongoing contact in person with his wife and daughter were established post child protection deregistration in June 2003, despite licence conditions that state he should have ‘no direct contact except by telephone with his daughter Allaya, without prior written authority from Social Services’. On 29/08/2006 it emerged that no such written authority has ever been granted despite his increasing level of integration and presence in the family home.

2.

… Though Mr Ahmed has reported regularly as instructed and has expressed pride at his compliance both in prison and on his return to the community it is now clear that he has been flouting a significant condition of his licence… from as early as 10/09/2003 when he was supervised by his previous supervising Probation Officer, Jacqueline Muge. He is reported as visiting his wife and daughter between 1-3 times a week and has been reported as going on unsupervised outings with his daughter. …

6.

… Mr Ahmed would appear to present a significantly higher risk of harm to his surviving daughter that (sic) would have appeared to be the case a few months ago; risk is heightened given that his wife has no recorded ability to protect her children. I would assess the risk of harm that he poses as being high. I am also concerned that if his daughter acts in ways that he does not like he may re-offend in a similar fashion to the index offence.”

Ms Joseph recommended that “given the long term flouting of the condition of the licence not to have direct contact with his surviving daughter … a decision is taken at a senior level as to whether it is legally possible to process recall with immediate effect”.

On the same day, Mr Bland, Ms Joseph’s line manager, recommended “an emergency recall”. On the page in the Progress Report to LRRS under the heading “Endorsement and Comments of ACO (or equivalent)” he wrote:

“I have discussed this report fully with the SPO covering the case and a PO who attended today a further strategy meeting with Social Services. Further information and assessment in respect of current risk has been obtained. The immediate strategy meeting with Social Services has identified that there exists a current level of high risk towards Allaya as outlined in the report above. … It is now clear that Mr Ahmed has breached his licence condition 7 given the degree of contact that he has been having [with] Allaya without any specific written authorisation from Social Services. There is now information that indicates that not only has Mr Ahmed been visiting Allaya’s home on a regular basis during the week, but also that he has been staying there for up to three nights a week. This had never been agreed with Social Services. Mr Ahmed had not been given written authority to have contact with Allaya in her home. This constitutes a breach of licence condition 7. Furthermore Mr Ahmed has not been given permission by his supervising officer to reside in Allaya’s home.

Given these breaches of his licence and the currently assessed level of high risk I am recommending a protective recall to prison. Following recall there will be a further in depth and multi-disciplinary risk assessment undertaken with an agreed plan of further risk management action.

There are concerns in respect of imminence of the risk. It is not possible to wholly predict how Mr Ahmed may react to the realisation that he is now considered to be in breach of his licence. Furthermore it is understood that an arranged marriage for Allaya may be being organised. There are concerns that there exists a possibility that Mr Ahmed may seek to abscond with his daughter given the combination of these factors, and particularly in view of the fact that he has been currently instructed to refrain from contact with his daughter.”

On Monday 4 September 2006 the Secretary of State revoked the Claimant’s licence and recalled him to prison. The Secretary of State’s reasons for emergency recall stated:

“The Secretary of State considered that it was necessary to take this action because of information received from the London Probation Service that you were considered to have breached condition 7 of your licence pertaining to appropriate behaviour on life licence. On 1 September 2006 the Probation Service reported to the Secretary of State that you have been visiting your wife and 16 year old daughter, from between once to three times a week without the permission of either the Probation Service or from Social Services. The Secretary of State was further informed that it had been reported that you had also been going out on unsupervised outings with your daughter.

These developments indicate to the Secretary of State that your performance on life licence gives substantial cause for concern. Having regard to all the circumstances, particularly the offence for which you were sentenced to life imprisonment, the Secretary of State cannot be satisfied that your continued presence in the community constitutes an acceptable risk.”

Mr Watson, who at the material time was Team Manager of the Post-Release Team within LRRS, says in his witness statement, that he took the decision to make an emergency recall on behalf of the head of LRRS, which is a power delegated from the Secretary of State. He said:

“33.

… The index offence, the Claimant’s attitude and his relationship with his daughter were the important factors for me and the fact that there appeared to be great concern about the daughter. The key factor for me was the risk reflected in the Probation Service Report and the alleged breach of licence condition 7 was not decisive in and of itself. Even without it, I thought there was sufficient concern to effect an emergency recall.

34.

… I was responsible for this decision which I took on the above basis. Jeff D’Cruz then signed the revocation order and took the steps needed to implement the recall to custody. I summarised my overall assessment on the CER/PBRR as follows: ‘There are clearly concerns regarding Mr Ahmed’s contact with his daughter, particularly as Probation were unaware of the visits. It is also clear that both S/S and the Probation Services consider that Mr Ahmed’s daughter is vulnerable. I am not prepared to allow Mr Ahmed the opportunity of accessing his daughter without a full risk assessment being undertaken. This must be done in custody to protect Mr Ahmed’s daughter. Immediate recall.’ ”

I allow the Particulars of Claim to be amended in the terms set out in the Amended Particulars of Claim (“AP of C”) in relation to all four Defendants save for the addition of the new cause of action in negligence which has been pleaded against the Third Defendant. Having heard the response of Mr Sanders, for the Third Defendant, to his application to add a claim in negligence, Mr Bowen requested, and Mr Sanders agreed, that that part of the application be adjourned until after judgment has been given on the other applications and then he be given time to consider whether to pursue his application to add a claim in negligence against the Third Defendant as presently drafted or in an amended form.

The claim against the First and Second Defendants

The pleaded case against the First and Second Defendants is detailed in the same terms in the AP of C at paras 107 and first numbered 111 (negligence); second numbered 111-115 (misfeasance); and 123-124 (Article 8 ECHR).

Negligence

The principal allegation against the First and Second Defendants is set out in the first numbered para 111. It is that they:

“Failed to appreciate that the Claimant was not in breach of condition 7 of his life licence because the supervised and unsupervised contact had been specifically agreed by both Defendants and was authorised in writing.”

Further it is said that they failed to take reasonable care to ensure that statements they made to the other Defendants about whether or not there was breach of Condition 7 were accurate, to check their files to seek what contact between the Claimant and Alia had been authorised and to disclose relevant material to the Fourth Defendant.

In my judgment the First Defendant was under no duty of care to the Claimant in any of the terms pleaded. The First Defendant was, as the Claimant notes at para 3 of the AP of C, the social services authority with responsibility for child protection in the Claimant’s and Alia’s area. It was the lead agency with a duty under both private and public law to decide whether it was in Alia’s best interests to have contact with the Claimant following his release from prison in 2001. The First Defendant’s involvement was to protect the interests of Alia, a minor at all material times. In D v East Berkshire Community Health NHS Trust and others [2005] 2 AC 373 the issue was whether health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly (para 76). In each case the suspected parent was eventually cleared of suspicion. The House of Lords rejected the claim that such a duty should be imposed. Lord Nicholls (with whom Lords Steyn, Roger and Brown agreed) said:

“A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘quite right’, a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.” (para 85).

Lord Nicholls added:

“In principle the appropriate level of protection for a parent suspected of abusing his child is that clinical and other investigations must be conducted in good faith. This affords suspected parents a similar level of protection to that afforded generally to persons suspected of committing crimes.” (para 90).

In MAK and Another v Dewsbury Healthcare NHS Trust and Another [2005] 2 AC 373 the claimants were a father and his daughter. They had brought proceedings against Dewsbury Healthcare NHS Trust and Kirklees Metropolitan Council. The Council is responsible for the provision of social services in the Dewsbury area. The father and daughter claimed damages in negligence for psychiatric injury and financial loss resulting from a clinical misdiagnosis that the daughter had been subject to sexual abuse and from the consequential investigatory steps taken by the social services. Applying the principles set out by Lord Nicholls this claim failed.

In my view, applying the same principles, the First Defendant was under no duty of care to the Claimant in the present case. The decision of Mr Justice Hickinbottom in Merthyr Tydfil County Borough Council v C [2010] EWHC 62 (QB) does not assist the Claimant. In that case the claimant had two children. At all material times they lived as a family at addresses within the area for which the defendant local authority was obliged to provide social services. The claimant sought damages for personal injury in the form of a psychiatric condition which she alleged was caused by the negligence of the Council in failing properly to deal with reports made by the claimant in relation to sexual abuse of her two children by another child. The learned Judge considered there was a real prospect of the claimant showing that it was fair, just and reasonable that the council owed her a duty of care. A critical factor in the reasoning of the learned Judge that led him to his conclusion was that the claimant was the parent of the children whom she suspected had been abused by another child. The claimant was not suspected of any abuse. In these circumstances “her interests and the interests of the children are consonant.” (para 36(i)). The Council had allocated a social worker to the claimant and her family. In the present case the best interests of the child, Alia, and her parent, the Claimant, do not “march hand-in-hand”. The primary duty of the First Defendant was to protect Alia from the Claimant and to ensure that she did not suffer the same fate as her elder sister.

The Second Defendant was responsible for the provision of probation services. By section 2(2) of the Criminal Justice and Courts Services Act 2000 the Second Defendant was under an obligation at the material time in exercising its functions to have regard to the following aims –

“(a)

The protection of the public,

(b)

The reduction of re-offending,

(c)

The proper punishment of offenders,

(d)

Ensuring offenders’ awareness of the effects of crime on the victims of crime and the public,

(e)

The rehabilitation of offenders.”

In my view it is arguable that the Second Defendant was under a duty to take reasonable care to check its files and provide accurate information in relation to the Claimant to the Third Defendant.

However, in my judgment, if, contrary to my view, there was such a duty of care owed by the First Defendant to the Claimant, there are no reasonable grounds for the claim that the First Defendant was in breach of that duty; nor are there reasonable grounds for the claim that the Second Defendant was in breach of its duty. Further, these claims against both the First and Second Defendants have no real prospect of success.

The only document authorising contact between the Claimant and Alia beyond telephone contact as required by condition 7 of the licence is the First Defendant’s letter dated 14 January 2003. That letter records what was agreed at a Core Group Meeting held on 8 January 2003, namely that:

“1.

Alia and Dad to meet one another on every fortnight for an hour. Contact to be supervised by Social Worker until 19 February 2003.

If there are no concerns with regard to contact

2.

Mrs Ahmad will supervise contact as from week starting on 24 February 2003. Contact will take place every fortnight at venue desired by Alia and parents.

3.

Social worker will liaise with Alia and Mrs Ahmad separately to assess progress.

4.

Next core meeting will be held on 30 January 2003 at 2.30 in Brent House Annex to review progress and plan future contacts and monitoring arrangements for Alia and Dad.”

It is clear from para 2 of the letter that the extent of the contact permitted is “every fortnight” and Mrs Ahmad will “supervise” the contact. In my view it is not arguable that the extent of the contact is for Mrs Ahmad to determine.

During the course of this hearing Mr Bowen referred to two further documents dated 5 and 9 June 2003 in support of his submission that the First Defendant had agreed to contact between the Claimant and his daughter at the discretion of Mrs Ahmad and that there had been no breach of condition 7 of the licence. In my judgment they do not support Mr Bowen’s submission. The letter dated 5 June 2003 from the First Defendant’s Social Worker to Mrs Ahmad confirmed that contact was to be resumed and states:

“We further agree that once Alia resumes contact with Dad, you will supervise contact…”

By letter dated 9 June 2003, following the Child Protection conference held that day, Mr Jones, Independent Chair, wrote to Mr Ahmad recording the decision that Alia’s name should be removed from the Child Protection Register and recording the following recommendations:

“1.

In the event of Mr & Mrs Ahmad contemplating living together Mr Ahmad will immediately inform the Probation Service who will immediately inform Social Services. Given such information Social Services will undertake a Risk Assessment and give consideration to convening a Child Protection Conference.

2.

Probation Service to continue to supervise Mr Ahmad in accordance with National Probation Standards.”

There is no support in either of those documents or in the minutes of the conference held on 9 June 2003 that it was for Mrs Ahmad thereafter to decide on the extent of contact between her husband and her daughter or that the First or Second Defendant had authorised contact beyond that recorded in the letter of 14 January 2003.

Mr Bowen during the course of his submissions also appeared to suggest that Condition 7 of the licence fell away on Alia’s deregistration. This point was not pleaded and there is no evidence to support it.

In a letter dated 3 October 2006 the Claimant’s solicitors wrote on his behalf to the Third Defendant requesting that the Fourth Defendant consider his release on licence in the light of the representations set out in the letter. The letter stated that:

“Mr Ahmad has always fully co-operated with Probation. He abided by the restriction that he could only have fortnightly contact with his daughter with his wife to supervise.”

There was, it was stated, only one occasion in three years when he had seen his daughter on more than one occasion in a fortnight and that was when he had spoken to his Probation Officer and “genuinely believed that she was allowing him to do this”. Plainly, as the Claimant now accepts, these representations are not correct: he saw Alia more frequently. In his witness statement dated 16 July 2010, made in response to the Defendants’ present applications, he said:

“Towards the end of 2004, I was seeing my daughter and wife two or three times a week.” (para 13).

In fact on 15 December 2004 the Claimant told his Probation Officer that he sees his family about three or four times a week and that “he is allowed to see them whenever he wants”. On 16 August 2006 he told Ms Joseph that contact with his family “had been granted after Social Services and independent psychiatric assessments”. There is no evidence that this extended contact was authorised by the First Defendant. Indeed the First Defendant had no direct contact with the Claimant after June 2003 when Alia’s name was taken off the Child Protection Register. Whilst the Second Defendant was aware from what the Claimant told his Probation Officer of some of the extent of the increased contact, the First Defendant did not know about it. The Second Defendant did not know that that contact had not been authorised by the First Defendant. Further, the Second Defendant did not know about the overnight staying contact.

Mr Bowen submits that Ms Newcombe was inaccurate in her report in stating that the Claimant was staying at the home three times per week or more and that Mrs Ahmad admitted she knew this was in direct contravention of the Claimant’s licence. The case note of the Home Visit on 24 August 2006 states that both Mrs Ahmad and Alia “confirmed that Dad was visiting the family home regularly… This is against Mr Ahmad’s life licence terms”, and both were “reminded” that this was not in keeping with Mr Ahmad’s licence conditions. Mr Bowen submits that as a contemporaneous document this case note raises questions as to the accuracy of Ms Newcombe’s report, in particular with regard to the allegation that the Claimant stayed overnight, which he denied. He accepted in his witness statement that he “was not given permission at any stage to stay at [his] home overnight”, and says for this reason he did not spend the night at home (para 11).

I do not accept that the absence of express reference to overnight stays in the short case note of the Home Visit raises an arguable point that where Ms Newcombe states expressly in her report that the Claimant “is currently staying there [i.e. at the family home] three times per week or more”, there was any inaccuracy. However even if Ms Newcombe was in error about the Claimant staying overnight, the Second Defendant was entitled to rely on that information supplied by the First Defendant and was not, in my view, under a duty to investigate the accuracy of that information. In any event there is no challenge to the accuracy of the statement in the Report that the Claimant had for the last year been seeing his daughter regularly. In so doing he was in breach of his licence because he had no authority from the First Defendant as required by Condition 7 to have this level of contact. Moreover the Secretary of State’s Reasons for Emergency Recall referred expressly to the frequency of visits which were unauthorised and to unsupervised outings. The Reasons did not refer to overnight stays; nor did Mr Watson expressly rely on that matter in making his decision to order recall (see para 9 above). If, contrary to my view, the statement in the Report that the Claimant stayed overnight was inaccurate, it was not that statement which was relied upon by Mr Watson for ordering the emergency recall.

Misfeasance

The claim against the First and Second Defendants of misfeasance is put in terms of the second limb of the tort. In Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 Lord Steyn at 192B-C explained that there are two different forms of liability for misfeasance in public office and that the second form, referred to as “untargeted malice”,

“… is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful.”

In this second form the claimant has to prove that the public officer acts knowing that he has no power to do the act complained of or with reckless indifference as to the lack of such power and that the act will probably injure the claimant.

In my judgment there are no grounds for this claim. There is no basis for the suggestion that the First or the Second Defendant were reckless as to the truth of the statements that the Claimant was in breach of Condition 7. Indeed it is plain that the Claimant was in breach of Condition 7. Even if Ms Newcombe’s statement that the Claimant stayed overnight at his home was inaccurate there is no prospect of the Claimant establishing an act of misfeasance for which the First or Second Defendant could be liable. Furthermore, as the Progress Report to LRRS makes clear (see para 6 above) previous case files were checked to establish whether or not the Claimant had been given consent for increased contact with Alia (and therefore whether or not he was in breach of Condition 7) before the recommendation that he be recalled with immediate effect was made.

Article 8

There was no conduct by the First Defendant that interfered with the Claimant’s Article 8 rights. First, the First Defendant did not take the decision to recall the Claimant. That was made by the Third Defendant, following a recommendation from the Second Defendant. The provision of the Newcombe Report, at the request of the Second Defendant, did not make the First Defendant a party to the decision making process to recall the Claimant. Second, it was the decision of the Governor of the prison not to allow the Claimant access to his daughter after 5 September 2006. In so far as that decision was based on views expressed by the First Defendant, those views were expressed having had proper regard to the interests of Alia and were a proportionate response in the changed circumstances. Within weeks, on 8 October 2006, Alia would turn 18 and obtain her majority. It would then be a matter for her as to whether she wished to have contact with her father.

Further, there was no conduct by the Second Defendant that interfered with the Claimant’s Article 8 rights. First, the decision to recall the Claimant was not the Second Defendant’s decision. Further, the Claimant’s detention was lawful for the reasons set out in paras 28 to 34 below, and it is not arguable in the circumstances that it was in breach of Article 8. Second, there is no basis for any suggestion that the Second Defendant was involved in the decision making process which resulted in the Claimant ceasing to have contact with his daughter upon his return to custody.

Claim against the Third Defendant

The case against the Third Defendant in the AP of C is based on false imprisonment (paras 116-120); Article 5 ECHR (paras 127-129); and Article 8 ECHR (paras 125-126).

False imprisonment

By section 32(2) of the Crime (Sentences) Act 1997:

“The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.”

This power was exercised in the present case based upon risk assessments and factual information provided by the Second Defendant. PSO4700 states that it is the responsibility of “the supervising Probation Area to take into account the extent that the licensee’s behaviour presents a risk of sexual or violent harm to others, regardless of the type of index offence for which he or she was originally convicted” when recommending recall.

In my judgment there are no grounds for the claim for false imprisonment (other than for the period from 24 August to 31 August 2007, it being accepted by Mr Sanders that the claim in respect of this period which relates to the delay in releasing the Claimant should not be struck out on this application). By reason of sections 12-13 of the Prison Act 1952 and section 32(6) of the 1997 Act, following the revocation of the Claimant’s licence and recall to prison, his detention in prison was lawful pursuant to his original life sentence. The material submitted to the Third Defendant overall plainly warranted the recall of the Claimant and was material on which the Third Defendant could rely.

The Claimant’s detention after recall was in pursuance of his original sentence. That recall did not become unlawful by reason of anything that happened or did not happen in this case thereafter. The Third Defendant referred the Claimant’s case to the Parole Board, as he was required to do. It is not arguable that the delay that occurred in the Parole Board hearing made his detention unlawful. In Dunn v Parole Board [2009] 1 WLR 728 Thomas LJ said at para 26 “It is in my view clear that if the Parole Board failed to determine a prisoner’s review of his recall in accordance with its duties at common law or in a manner consistent with Article 5(4), that would not affect the lawfulness of the detention if the prisoner was detained pursuant to statutory authority, in this case section 39(6).” (That case concerned a determinate sentence prisoner and different provisions, but the principle is the same).

D v Home Office (Bail for Immigration Detainees Intervening) [2006] 1 WLR 1003 concerned immigrants who had been unlawfully detained and who had brought claims, including claims for false imprisonment, against the immigration officers who had initiated the detention. The decision that a claim might lie for false imprisonment was based on the alleged unlawfulness of the action initiating the detention that had been carried out by immigration officers. However in Dunn v Parole Board the Claimant had been lawfully returned to custody under section 39(5) of the Criminal Justice Act 1991 and was detained by the Secretary of State in pursuance of his sentence under section 39(6) of that Act. Thomas LJ said:

“In the present case therefore although there might be a real prospect of showing that the failure of the Parole Board to consider the reference of his recall speedily and in accordance with fair procedures was unlawful this would not have the consequence that there was unlawful detention. It is clear that the Claimant was lawfully detained in prison by the Secretary of State under the provisions of section 39 of the Criminal Justice Act 1991 which provided that that detention was pursuant to his original sentence; it did not require a review by the Parole Board for that detention to be authorised. Nor would any unlawful action by the Parole Board through its delay in dealing with the review of his recall render the detention itself unlawful; the detention remained lawful under section 39(6). It would only be if the delay were to become of a considerable magnitude that a stage might be reached were it might become possible to mount an argument that the detention had in consequence become unlawful under Article 5(1), despite the clear provisions of section 39(6) referable to a determinate sentence.” (para 28)

It appears from Lord Brown’s speech in Walker at para 51 that such delay would have to be for years, rather than months. (citation at para 36 below, also see Lord Judge at para 128).

In R (Gulliver) v Parole Board [2008] 1 WLR 1116 Sir Anthony Clarke MR at para 38 accepted the submission that:

“The prisoner who has been recalled to prison is lawfully detained pursuant to his original sentence. The recall may be legally defective but unless and until the Administrative Court quashes the recall the imprisonment of the prisoner is lawful.”

Moreover the circumstances in which the Administrative Court will contemplate quashing a decision to recall are extremely limited. In R (Biggs) v SSHD [2002] EWHC 1012 (Admin) Richards J said:

“24.

I agree that it will generally be inappropriate to challenge a recall decision of this kind on Wednesbury grounds. One is concerned here with an emergency procedure, involving the exercise of an extremely broad discretion by the Secretary of State.

…

33.

In my judgment, if the court is to assess the rationality of a recall decision of this kind, it is essential to have due regard to the context and to focus attention on the actual information available to the decision maker. … If the Sentence Enforcement Unit is presented with information suggesting that there is cause for concern, a decision to recall immediately and to allow matters to be examined fully by the Parole Board after recall, without probing far into the factual background before reaching a decision, cannot sensibly be regarded as an irrational response.”

In R (Hare) v SSHD [2003] EWHC 3336 (Admin) Elias J considered whether there is an obligation on the Secretary of State to go behind the information that is given to him in the probation reports. He said at para 7:

“The Secretary of State here is acting pursuant to a power to recall somebody where he considers it expedient in the public interest that that should be done. I do not see, in those circumstances, that he must, prior to the exercise of that power, satisfy himself that the information that he has been provided with by the Probation Service is correct.”

In my view Mr Sanders is correct in his analysis of the evidence before this court. Although there is some uncertainty about the precise sequence of events on 1 September 2006, the Third Defendant did not take any decision on that day. The decision to recall was taken on behalf of the Secretary of State by Mr Watson on 4 September 2006 following the submission of the report from the Second Defendant recommending emergency recall (see statement of Mr Watson at paras 27-34). Further, Mr Watson’s principal concern was with the emerging picture of risk, not breach of condition 7 per se. In my view it is not arguable that the judgment of Mr Watson was unlawful; nor is it arguable that the representations made on behalf of the Claimant by letter dated 3 October 2006 should have led to a review by the Third Defendant of the decision to recall. It is now accepted by the Claimant that what was said in those representations about his compliance with the terms of his licence was incorrect (see para 20 above).

Article 5

The Claimant’s solicitors in their letter dated 24 October 2008 disavowed an Article 5 claim against the Third Defendant. A decision appears to have been taken to bring an Article 5 claim only against the Fourth Defendant. That being so it is submitted on behalf of the Third Defendant that the application to amend the Claim Form in this regard should be refused. However in my view it would in all the circumstances be equitable for time to be extended. The false imprisonment claim, which relies on the same facts as the Article 5 claim, is within time. The Third Defendant does not suggest that it is prejudiced by the delay.

However in my view the claim under Article 5 is also without foundation and has no prospect of success. It is clear from the decision of the House of Lords in Walker v Secretary of State for Justice [2010] 1 AC 553 that the principles in Dunn to which I have referred apply equally to a person, such as the Claimant, sentenced to an indeterminate sentence. The House of Lords held that for a prisoner’s post-recall detention to be justified under Article 5(1)(a) of the Convention there had to be sufficient causal connection between his conviction and the deprivation of his liberty. There is such a causal connection in the present case. The Claimant received a life sentence for murdering his eldest daughter; he was recalled because of the assessed risks to his younger daughter. There was lawful authority for his recall.

Mr Bowen submitted, by reference to the observations of Buxton LJ in R (Noorkoiv) v SSHD [2002] 1 WLR 3284 at paras 23-25 that the Claimant’s detention post-recall was “presumptively unlawful”. I reject this submission. Buxton LJ was concerned with the jurisprudence of Art.5(4), not with Art.5(1). Simon Brown LJ made clear at para 56 that:

“Even … when an Article 5(4) hearing or decision is delayed, the antecedent period of detention is not to be regarded as unlawful. In short, unlawful detention is one thing, violation of the prisoner’s rights under Article 5(4) quite another.” (See also Lord Woolf CJ at paras 61-62).

In R (Hirst) v SSHD [2006] 1 WLR 3083 Sir Igor Judge P at paras 18-19 and 21 endorsed this view. At para 19 he said:

“In our judgment this Claimant’s recall was justified in law by the link between the discretionary sentence of life imprisonment imposed following his conviction for manslaughter and his behaviour during the short period while he was living in the community on licence. This gave rise to realistic concerns for public safety.”

In the present case there was the “link” between the murder of the Claimant’s eldest daughter and the legitimate concerns for the safety of his younger daughter which justified in law his recall.

Article 8

There are two limbs to the Article 8 claim against the Third Defendant directed to (1) restrictions imposed on the Claimant’s contact with his surviving daughter while he was in prison following his recall; and (2) the fact of the Claimant’s imprisonment between 5 September 2006 and 31 August 2007.

It is now accepted by the Third Defendant that the first limb of the Article 8 claim is in time (see para 42 below).

As for the second limb, it would in my view be equitable in all the circumstances to allow the Claimant to an extension of time for the Article 8 claim that initially was directed to restrictions imposed on his contact with Alia while he was in prison (limb (1)) to embrace in addition the fact of his imprisonment (limb (2)).