R (Francis) v West Midlands Probation Board  EWCA Civ 955
Permission to appeal in relation to two issues granted: (1) 'The first concerns the relationship between the Parole Board, the Probation Service acting through one or more of its regional boards, MAPPA, and the prisoner who is serving a life sentence, when it comes to considering his life after release'; (2) 'The second issue concerns the rights of the appellant and Ms Kemp under Article 8'. [Summary required.]
Judgment (Crown Copyright)
The judgment will appear below until it is placed on Bailii.
Case No: C1/2010/0190 Neutral Citation Number:  EWCA Civ 955 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT MR JUSTICE SILBER Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday 23rd July 2010 Before: LORD JUSTICE TOULSON - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF FRANCIS Appellant - and - WEST MIDLANDS PROBATION BOARD Respondent - - - - - - - - - - - - - - - - - - - - - ( DAR Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court ) - - - - - - - - - - - - - - - - - - - - - Mr Hugh Southey QC (instructed by Bobbetts Mackan) appeared on behalf of the Appellant. The Respondent did not appear and was not represented. - - - - - - - - - - - - - - - - - - - - - Judgment (As Approved by the Court) Crown Copyright © Lord Justice Toulson: 1. I am persuaded by Mr Southey QC that I should give permission to appeal. I am far from clear in my mind what the answers are likely to be in this case, but it does seem to me to raise quite difficult and potentially quite important issues. 2. The first concerns the relationship between the Parole Board, the Probation Service acting through one or more of its regional boards, MAPPA, and the prisoner who is serving a life sentence, when it comes to considering his life after release. After a period during which the appellant was given short-term release on a number of occasions and allowed to travel to Bristol, and after which he had delivered a serious relationship with a woman, Viv Kemp, who lives in the Bristol area, he was recalled to closed conditions because of an allegation that he had threatened a fellow prisoner with a knife and had been found with a knife in his cell. The Parole Board has subsequently investigated those matters. It has not accepted the allegation about threatening a prisoner; and it has accepted that the knife was an item of cutlery for which he had permission. 3. In the meantime, the appellant asked for his supervision to be transferred from the West Midlands Probation Board to the Avon and Somerset Probation Board with a view to him living on release in the same proximity as Ms Kemp. I have not seen the statutory regime under which probation boards operate in circumstances of the present kind, but it appears that the different regional boards are different legal entities and not merely branch offices of a single entity. 4. After an initial refusal the Avon and Somerset Probation Board accepted that he had sufficient connection with their area to make his request appropriate. The change of heart on the part of Avon and Somerset came after they had been threatened with judicial review proceedings and a witness statement had been provided by Ms Kemp. This went, in some detail, into the matters which had caused Avon and Somerset to have prior concerns about their relationship. However, the West Midland Probation Board refused to transfer his supervisory care to Avon and Somerset. Thereafter, because of the stance of the West Midlands Board, the Avon and Somerset Board withdrew its agreement. 5. The appellant challenges the lawfulness of the decision of the West Midlands Board. In response to the appellant's pre-action letter, the National Probation Board stated, among other things: "5f. In making its decision the West Midlands Probation Board was entitled to take into account as relevant considerations the risk assessment and views of the Multi-Agency Public Protection Panel, its own assessment of the risks that Mr Francis presents, and the viability of a release plan that involves him residing with Ms Kemp. g. the West Midlands Probation Board has taken into account the possibility of a release plan whereby Mr Francis resides at a probation hostel in the Bristol area. Such a release plan is not considered to be viable. That such a possibility has been and might yet again be considered does not require the West Midlands Probation Board to decide to seek transfer of Mr Francis' supervision to the Avon and Somerset Probation Board. h. In considering the viability of a release plan (such as a release plan whereby Mr Francis resides with Ms Kemp) the West Midlands Probation Board is not bound to assume that Mr Francis will in that particular circumstance present minimal risk if released." 6. Mr Southey submits that West Midlands' reasoning is flawed. He submits that the Parole Board, whose decision it will be, will not release the appellant if it judges that there is a more than minimal risk, and any alternative hypothetical contingency is not one with which the West Midlands Board need concern itself. The position of the West Midlands Board is, on the other hand, that it is entitled to consider what it thinks the Parole Board would be likely to regard as a viable release plan before giving its concurrence to a transfer of the probation board's supervisory responsibilities from itself to Avon and Somerset. That leads to Mr Southey's underlying submission, which is that the effect of West Midlands' decision has been to usurp or pre-empt the Parole Board's ability to consider whether it would be safe to release the appellant to live in the Bristol area. The Parole Board's position has been that it cannot step into issues between the two regional boards as to which should undertake supervisory responsibilities. What it can do is make decisions about the appellant's detention, ie whether it should be in closed or open conditions, and make decisions on his release and terms of release, which would at that stage involve considering the viability of any release plan. 7. Mr Southey accepts that a prospective transferee of the probation board might be fully justified in declining to accept a transfer of supervisory responsibilities if it adjudged that the appellant had insufficient link with the area; and there might be other good reasons for it declining to accept such a transfer. But, he observes, that is not the case here because the Avon and Somerset Board, after consideration of Ms Kemp's witness statement and other matters, was content to accept his transfer; and therefore he submits that it was wrong for West Midlands Board to refuse a transfer, thereby precluding the Parole Board in practical terms from considering the potential viability of a release plan for the appellant to live in the Bristol area. In my judgment this issue does give rise to properly arguable points. 8. The second issue concerns the rights of the appellant and Ms Kemp under Article 8. It is obvious that any incarceration will have severe direct and indirect impact on the Article 8 rights of a prisoner and those of anyone with whom he may have a relationship. Article 8 rights are not altogether suspended, but their exercise is bound to be severely limited during a term of imprisonment. That is an unavoidable consequence of the necessity to imprison people for offences which require it. 9. On release, prima facie, a person and those close to him are entitled to pursue a personal relationship. There may again be a necessity to put obstacles in their path on grounds of the need to protect the public, but it is clear that such obstacles should only be placed in the way of a person developing a relationship with some other willing partner if it is truly necessary in the interests of public safety, for the prevention of crime or for the protection of others (see Article 8). Mr Southey submits in paragraph 3.36.2 of his skeleton argument as follows: "...the continuing failure to authorise the transfer of the Appellant's supervision amounts to an interference with his rights protected by article 8 and those of his fiancée. That is because the decision will result in the Appellant being forced to prepare a release plan that will involve supervision in the West Midlands. That will inevitably make it more difficult for him to spend time with Ms Kemp. It may well also prevent him living with Ms Kemp. That appears in part to be the purpose of the decision taken by West Midlands Probation Board." 10. He amplifies that submission in his skeleton argument, in particular at paragraph 3.43 where he addresses what appears to have been the Board's concern about the relationship: "3.43.2 The primary concern appears to be that the relationship between the Appellant and Ms Kemp is in some way unsuitable. That, however, is a matter for the couple. There is no suggestion that either party lacks the capacity to determine whether they wish to enter into a relationship. 3.43.3 The concern about the relationship appears to be based on a concern that the Appellant has not provided full details of his offending to Ms Kemp. However, if that is a concern, it can be addressed by a Probation Officer directly asking Ms Kemp about her understanding of the Appellant's offending. Indeed there already appears to have been a meeting on 14 December 2006 aimed at ensuring that Ms Kemp had a full understanding of the Appellant's offending." 11. In its reply to the letter before action, the National Probation Board dealt very tersely with the Article 8 point. It stated at paragraph 5k: "If Article 8 is engaged, the West Midlands Probation Board's decision is nonetheless lawful (being made in the course of the exercise of its proper functions), and (in all the circumstances) is proportionate for the legitimate purposes of public safety, for the prevention of disorder or crime, and for the protection of the rights and freedoms of others." 12. Mr Southey submits that that almost formalistic statement does not grapple with the issues. If the concern of the West Midlands Board has been, as rather appears from some of the earlier documents, that the appellant is a manipulative individual who has been deceptive, or at least less than frank, within his relationship with Ms Kemp, and that she is a vulnerable person who needs to be safeguarded from the attempt to establish a deeper relationship with him, Mr Southey submits that these concerns have not been articulated or explained since Ms Kemp provided her witness statement. There has been no express indication what view West Midlands takes of her witness statement or explanation of such view. The witness statement filed on its behalf for the purpose of these proceedings relates to the history but does not directly address what Ms Kemp has to say about matters. If the board's concerns are based on fear of her vulnerability, it does not directly address the points raised in Mr Southey's skeleton argument at paragraphs 3.43.2 and 3.43.3. Mr Southey submits that the decision was unsatisfactory because it does not address those matters and does not show that there has been an adequate balancing of the Article 8 rights of the appellant and Ms Kemp against any risk to the public from him living in the Bristol area; nor does it satisfactorily address whether it is truly necessary to place obstacles in the way of their continuing personal relationship. I am persuaded that this issue too is one on which permission to appeal ought to be given. 13. I have a degree of concern: if it is likely to be suggested on the appeal that the witness statement of Ms Kemp was a product of manipulation, it should be taken into account that Ms Kemp is not a party to the proceedings. I am not positively suggesting that she ought to be, but, depending on what position the board takes in its response to the appellant's skeleton argument, it may be that those representing the appellant may wish to give further thought to this matter and see that Ms Kemp understands the position. 14. For those reasons, I grant permission to appeal. Order: Application granted
No Bailii link (for this neutral citation number): this message will automatically be replaced by a link when Bailii publishes the judgment.