R (Francis) v West Midlands Probation Board [2010] 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'.

Judgment (Crown Copyright)

The judgment will appear below until it is placed on Bailii.

                                                           Case No: C1/2010/0190

Neutral Citation Number: [2010] EWCA Civ 955





                                                         Royal Courts of Justice

                                                        Strand, London, WC2A 2LL

                                                     Date: Friday 23rd July 2010


                              LORD JUSTICE TOULSON

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                   THE QUEEN ON THE APPLICATION OF FRANCIS          Appellant
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                        WEST MIDLANDS PROBATION BOARD

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                              ( DAR Transcript of

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Mr Hugh Southey QC (instructed by Bobbetts Mackan) appeared on behalf of the

The Respondent did not appear and was not represented.

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                           (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

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

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

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

External link

Possible Bailii link (not there when checked last night, but might have appeared since)