A, R (on the application of) v National Probation Service [2003] EWHC 2910 (Admin)

Case No CO/5392/2003

[2003] EWHC 2910 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 18th November 2003

Strand

London WC2

B E F O R E:

MR JUSTICE BEATSON

Between

THE QUEEN ON THE APPLICATION OF AClaimant

-v-

Between

NATIONAL PROBATION SERVICEDefendant

Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR HUGH SOUTHEY (instructed by Peter Edwards) appeared for CLAIMANT.

MR NICHOLAS O'BRIEN (instructed by Cheshire County Council) appeared for DEFENDANT.

J U D G M E N T

Tuesday, 18th November 2003

[1]MR JUSTICE BEATSON: In this application the claimant, who is due to be released from prison tomorrow (19th November) and needs to make arrangements for accommodation, challenges the decision of the National Probation Service to make it a condition of approving the accommodation in which he proposes to live that the manager be informed of his conviction for murder. The claimant wishes to purchase a flat in a sheltered accommodation complex, but only if he can be certain that his conviction will not be disclosed. The defendant's decision was contained in the risk assessment dated 25th September 2003 conducted by the claimant's probation officer. Proceedings were launched on 14th October 2003 and permission granted on 17th October by Sir Christopher Bellamy QC, who directed that the matter be expedited to the first available day after 24th October and ordered that the claimant's identity not be disclosed. The hearing took place on 14th November. The Facts

[2]The claimant, who I will call "A", is now aged 70. He was convicted of the murder of his wife in 1997. He pleaded not guilty on the basis that he was only guilty of manslaughter on the grounds of diminished responsibility. A medical report prepared for the Crown Prosecution Service at the time of the trial stated that the offence occurred at a time when the relationship between A and his wife was strained, in part, as a consequence of his health problems. The report concluded that the offence occurred in the specific context of the relationship and was unlikely to be repeated. A forensic psychiatrist instructed by the defence stated that he would not regard A as a major risk for any violent offence in the future.

[3]As A's tariff expires on 19th November, a Parole Board Review was conducted in the early months of 2003. The reports prepared for the Parole Board were not unanimous in recommending release. In particular, his own probation officer concluded that he was not ready for release. There were also negative reports from a seconded probation officer and a psychologist. There were other reports supporting release, as they concluded that the circumstances of the offence were unlikely to be repeated. The manager of the Lifer Unit concluded that:

"The offence was specifically linked to the long-term relationship with his wife and of A's low risk in terms of reoffending. He will, of course, require stringent monitoring on release for some time to come, but he would ... respond positively to supervision on licence."

[4]The Parole Board considered the reports and concluded that A should be released. The Board noted that he had consistently maintained that he takes only diminished responsibility for killing his wife due to his mental state, although this was rejected by the jury, and that little had been done in the way of offence focused work. It stated that:

"While it is clear from most of the reports that A does have entrenched attitudes and has little insight into the index offence, there appears to be little to indicate much risk of his reoffending. Indeed, provided that he is monitored closely were he to enter into another relationship, it seems to the Panel that any risk he poses to the public as a whole is very low."

The panel believed that it would be inappropriate for A to live with his sister, as had been suggested at one time. It noted A's hope to live in sheltered accommodation, and recommended release on life licence, subject to the condition that he should reside where he was directed and that he should not contact his son. It is common ground that the direction to residence is to be given by the Probation Service. The Secretary of State accepted the recommendation of the Parole Board.

[5]A's probation officer wrote to him on 10th June stating she believed it was necessary for the manager of his proposed accommodation to be informed of his offence. In response to this letter A's solicitor wrote a letter before claim. This cited a number of cases on the disclosure of convictions by public authorities and stated that disclosure of an offender's previous convictions should only take place if a pressing need had been defined and that, in the circumstances of A's case, no such pressing need had been identified. The probation service responded on 25th July, stating that the risk assessment would be undertaken prior to A's release. It was stated that it could not rule out that the risk assessment may conclude that it will need to address risk by disclosing limited information about A to third parties.

[6]The risk assessment was conducted on 25th September 2003 and A was informed on the 29th. The risk assessment used the Home Office approved assessment tool of Oasys. The reports and assessments carried out throughout the sentence, information from probation officers and prison staff, submissions to the Parole Board by A's solicitor, references from Age Concern (with whom A had worked) and information learned from a visit to two proposed retirement complexes were considered. The risk assessment was conducted in the knowledge that A does not wish details of his offence to be given to those who manage the accommodation in which he will live. The report states:

"Oasys scores ... indicate a low risk of reoffending. It is recognised however that if he does reoffend there will be extremely serious consequences for victims and this is assessed in the section on risk of harm."

The report states that the fact that A has always believed he was not thinking rationally when the offence occurred and that a plea of diminished responsibility should have been accepted meant that he has not sufficiently addressed his offending behaviour during his sentence.

[7]In the section on "risk of harm", it is stated that any risk management plan concerning A will have to take into account contact he will have with females in the same age group as himself, with whom he may form a relationship. Particular concern will be felt for women who may be in poor health. He is not thought to pose a risk of harm to elderly people in general or to other members of the public. It is stated that he is not thought to present an immediate or high risk of harm on release, but it is also stated that:

"The fact that he has not sufficiently addressed his offending behaviour in custody means that there will continue to be concerns however, and his level of risk has been assessed as medium."

The assessment states that controlling behaviour and difficulties in expressing negative emotions is a theme in reports from various professionals, and it is these aspects of his behaviour which could result in violence in a relationship in the future, particularly if A was experiencing a deterioration in physical mental health and coping strategies. It is stated that it is clear that A will need to be subject to a careful risk management plan when he is released.

[8]The assessment concludes that the proposed accommodation has many advantages for A, such as the need to avoid isolation and have support on release and the ability to reside in pleasant surroundings close to local amenities. But in considering public protection, while the assessment acknowledges that the risk of reoffending is low, it states that A has demonstrated that he is capable of committing an extremely serious offence and has not addressed his offending. It also states:

"Future relationships with women are of particular concern and although there is no system in place for vetting prospective apartment owners, it was obvious when we visited the premises that the sales consultant was anxious to obtain information about A's past and they have clearly have a duty to consider the well being of other residents."

Her conclusion was that, although the accommodation is suitable, this would be on the condition that the manager was made aware of A's offence. Reassurance would be provided about A's situation, the low likelihood of his reoffending and the fact that he would be closely monitored and supported by the probation service and any other relevant agencies. The assessment also states that if information is not initially shared but found out at a later date, there could be serious implications for all concerned, including A himself. His integrity would be placed in question if he was later found to have been untruthful, as would that of the Probation Service.

[9]Following the launch of proceedings, on 24th October 2003 A's probation officer made a witness statement. His case had been allocated to her in September 2000. She had been in written communication with him and had visited him in prison on two occasions and in a hostel on two occasions. Prior to the Parole Board's decision her concerns were endorsed by her line manager and colleagues within her resettlement team. She states that the Parole Board and the Home Secretary had agreed that A's level of risk can be managed in the community and that the condition that the offender must live where approved by probation is a standard condition of life licences. She states that it is now her role to demonstrate how the risk will be managed.

[10]Paragraph 11 of her statement continues:

"A further report has been requested by the Parole Board prior to release in which I will be expected to demonstrate I have carefully assessed the release plans and have put into place public protection considerations such as licence conditions. Guidance on public protection issues is found in the Lifer Manual a policy document issued by the Prison Service Management Board. One issue that needs to be taken into account is that of 'advising certain third parties of the nature of the offence and implications of the supervision process including relevant licence conditions'. A presumption in favour of disclosure applies to each of the following persons: (i) partners of licencees (ii) employers (voluntary or otherwise) (iii) accommodation suppliers/providers."

She continues that A will be closely supervised on release, required to report to a probation officer, on a weekly basis initially, and that the level of contact will not fall below fortnightly for the first two years.

[11]In paragraph 13 it is stated:

"It is recognised that the fact that the National Probation Service will mainly work with A in an office setting means that our ability to monitor risk concerns such as future relationships, are limited. It is my view, and the view of a number of other report writers, that if A were to develop relationships, particularly with the elderly and vulnerable, then this would have to be closely monitored to manage his risk in the community. A failure to do this properly and the resulting implications for further offending on A's part would be extremely serious. Disclosure to a member of staff at a retirement complex would be a necessary safeguard and an essential means of managing risk. During my work with lifers and other offenders I have liaised with hostel and other housing staff. I have felt this to be good practice and beneficial to all concerned. It is not my experience that proper and sensitive disclosure results in social isolation of the offender in the community. In fact I would say that the opposite is the case."

[12]In paragraph 14 she states that the decision that disclosure in this case is necessary followed a risk assessment which was thorough, relevant and took all relevant considerations into account. Her visits to prospective accommodation sites showed that the house manager maintained a proactive and pastoral role, regarding the well-being of residents and would, for example, knock on doors if she or she had any concerns.

[13]After a further reference to the Lifer Manual's statement that "the overriding consideration in risk assessment is the protection of the public", she states that it is recognised that the best predictor of future behaviour is past behaviour, and the fact that A now wishes to place himself in a situation where he will be able to form relationships with elderly and possibly vulnerable people must be taken seriously. Her risk assessment placed A in a category of medium risk of harm, which means that, although serious harm is not thought to be imminent, there are identifiable indicators of risk of harm and the offender has the potential to cause harm but is unlikely to do so unless there is a change of circumstance. In A's case a change of circumstance could be the deterioration of his mental state or the inability to deal with issues within the relationship. The statement concludes that she is convinced that her decision that disclosure of A's offence to the manager should be made is one which is supported by the weight of the evidence relating to the management of risk that he presents. It is a necessary condition of his licence to safeguard those persons who may be at risk of harm from him.

[14]A's probation officer made a further statement on 12th November 2003, immediately prior to the hearing. In this she describes multi-agency public protection panel procedures ("MAPPA") to enable criminal justice agencies to work together to prevent crime and protect the public. She also gives information of the up-to-date position regarding the management of A's release in connection with the application of the MAPPA guidance.

[15]The MAPPA guidance sets out three levels of risk management. Level one is the level used in cases in which the risk posed by the offenders can be managed by one agency without actively or significantly involving other agencies. In general these are offenders assessed as presenting a low or medium risk of harm. Level two involves local inter-agency risk management, where active involvement of more than one agency is required but the level of risk or the complexity of managing it is not so great as to require referral to the multi-agency protection panel. In relation to cases requiring level two management, the statutory guidance (paragraph 114) states that housing authorities and housing providers can routinely play an active role. Level three, which is not relevant in this case, is for those assessed as being of high, or very high, risk of causing serious harm and presenting a risk that can only be managed by a plan requiring close co-operation at a senior level.

[16]In paragraph 4 of her recent statement A's probation officer states that his case is one "... where in general circumstances the medium but significant risk can generally be managed by a single agency and therefore be level one." Her experience is that relevant information is often shared by the case management and other relevant agencies without the need for formal inter-agency meetings. She states that relevant information about other lifers she has supervised in the community has been shared with local authority housing departments or hostel managers, with the offenders' cooperation and consent, on a level one basis. A's position is different because he wishes to purchase private accommodation and his accommodation providers will not be a public body. The MAPPA guidance indicates that disclosure two a third party who is not a MAPPA agency should be exercised with caution and seen as an exceptional measure (see paragraphs 93 and 94 of the guidance).

[17]Paragraph 5 of the statement refers to the September risk assessment and states that:

"The fact that [A] has committed a murder and intends to place himself in a situation where he could form relationships with older and possibly vulnerable women, and is reluctant for housing providers to be informed of his offence, means that the case can no longer be managed at level one. The risk management and disclosure issues require his case to be considered by a multi-agency meeting at level 2."

[18]She reports that a central level multi-agency meeting held on 29th October considered A's case. This was four days after her earlier statement. The risk assessment report was disclosed to this meeting, and it was unanimously agreed that:

"... disclosure was an essential part of the risk management plan given that the house manager has a responsibility for the residents and further a less intrusive form of monitoring the situation was not possible. The rights of the offender were taken into account in respect of the nature of the disclosure. It was agreed that only the limited information relevant to the identified risk factor would be shared with the member of staff who needed to have the information. The importance of confidentiality was emphasised, but the limited disclosure proposed was felt to be vital to identify any deterioration or change in circumstances that would require a reassessment and an intervention to protect the public."

[19]She states that it would be preferable for A to disclose the offence to the house manager and for the probation service to confirm that this had taken place. Disclosure would be done in a controlled way, which would ensure that the person understood that the information is confidential and should not be disclosed other than in accordance with the principles of the Data Protection Act 1998. The residents of the complex would not be informed of the offence, but, if a relationship did develop in the future, a multi-agency meeting would discuss the necessity of further disclosure to a partner. Other than that, it is stated that once disclosure has taken place A's case is likely to be supervised at level one.

[20]A objects to disclosure on the grounds that people would not accept him if they knew of his offence: he would be shunned and would become isolated and unable to develop friendships. Mr Southey on his behalf also submitted that disclosure might affect the willingness of the provider of the sheltered homes to sell one of its flats to A. The Legal Framework

[21]The role of the Parole Board is dealt with in the Crime Sentences Act 1997 and the Criminal Justice Act 1991. Section 29 of the 1997 Act governs the release of prisoners who are sentenced to a mandatory life sentence. It provides:

"(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies."

Section 28 is irrelevant in the present case.

[22]Section 32 of the 1991 Act provides:

"(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under [this Part or Chapter II]; and in giving any such directions the Secretary of State shall in particular have regard to (a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."

The reference in section 32 to Chapter II is to Chapter II of the 1997 Act, which includes section 29(1).

[23]The Parole Board's published directions state, inter alia:

"2. The Parole Board's responsibilities in the release consideration are whether, having regard to the degree of risk involved of the lifer committing further imprisonable offences after release, it remains necessary for the protection of the public for the lifer to be confined. ... 4. Before recommending release, the Parole Board should consider whether: (a) the lifer has shown by his performance in prison that he has made positive efforts to address his attitudes and behavioural problems and the extent to which progress has been made in doing so such that the risk that he will commit further imprisonable offences after release is minimal; (b) the lifer is likely to comply with the conditions of the life licence and the requirements of supervision."

These directions are now found in the light of the decision in Stafford v United Kingdom

[2002] 35 EHRR 32

, which means that to be Convention compliant the Parole Board is restricted to considering whether there is a risk of serious violent offences.

[24]The functions and role of the National Probation Service, which was set up in 2001, can be found in the Criminal Justice and Court Service Act 2000. The Service has responsibility for the rehabilitation and supervision of convicted offenders, including those released from prison on licence (see sections 1(1)(b) and 1(2)(b)). In carrying out these functions the service is by section 2 given a number of statutory objectives. These are the protection of the public, the reduction of reoffending, proper punishment of offenders, ensuring offenders' awareness of the effects of crime on the victims of crime and the public and the rehabilitation of offenders. By section 67 of the 2000 Act:

"(1) In this section- 'relevant sexual or violent offender' has the meaning given by section 68, and 'responsible authority', in relation to any area, means the chief officer of police and the local probation board for that area acting jointly. (2) The responsible authority for each area must establish arrangements for the purpose of assessing and managing the risks posed in that area by- (a) relevant ... violent offenders ... (3) The responsible authority for each area must keep the arrangements established by it under review with a view to monitoring their effectiveness and making any changes to them that appear necessary or expedient. ... (6) The Secretary of State may issue guidance to responsible authorities on the discharge of the functions conferred by this section."

[25]A person such as A, who has been convicted of murder, is by section 68(1) and 68(3)(a) "a relevant violent offender". The probation service therefore has a statutory responsibility to assess and manage the risks of such a person on release on licence and who are to be supervised by the service. The MAPPA guidance to which I have referred is issued in accordance with section 68(6) and is thus statutory guidance. Grounds of Challenge

[26]There are two limbs to Mr Southey's challenge on behalf of A. The first is that, since the Parole Board, which had the first and primary responsibility of determining risk and what conditions should be imposed on release, have not imposed a condition of disclosure, the local branch of the probation service had to take it that the decision to release without such disclosure was correct.

[27]In the present case the probation service had taken the view that release was not appropriate. Its view was considered by the Parole Board, which, although agreeing that he had not addressed his offending behaviour, nevertheless recommended A's release and did so without any condition of disclosure. Mr Southey submitted, on the basis of the decision in R v Secretary of State Home Department ex parte Harry

[1998] 1 WLR 1737

, that it was irrational for the probation service to require disclosure in these circumstances. The reference in the risk assessment to the fact that A had not undertaken offender-related work and had not sufficiently addressed his offending behaviour and the assessment of his level of risk as medium, showed that the probation service had not accepted the Parole Board's decision. Mr Southey's submission takes no, or insufficient, account of the distinct statutory obligations on the probation service to make its own risk assessment as part of the formation of the plan as to how to manage risk and the fact that the probation service is concerned with the assessment of risk in the context of how to supervise an offender once released. The Parole Board's function is to consider whether the level of risk to the public requires a lifer to remain confined. These are different exercises.

[28]Moreover, the decision in ex parte Harry is no support. First, Lightman J's statement at page 1744, which was relied on, is concerned with the determination of an issue of fact. An assessment of risk is a predictive exercise and very different. Secondly, Lightman J at page 1744 H stated that: "Where a statutory body has determined an issue of fact, it may be irrational for a decision-maker to disagree with that conclusion". (Emphasis added) Where, however, the second decision-maker has to reach its own independent decision, his Lordship recognised that the finding and recommendation of the first decision-maker "may assist him to fulfil his obligation but cannot dilute it or impede its fulfilment or obviate the need to be exercised by him of the need for a formal judgment".

[29]The second limb of Mr Southey's challenge is that the decision concerning disclosure conforms neither to the common law position, as illustrated by The Crown v Chief Constable of the North Wales Police ex parte Thorpe

[1999] QB 396

, nor to what is required by the European Convention on Human Rights.

[30]In ex parte Thorpe Lord Bingham CJ at page 409 adopted a submission made by counsel that:

"(1) There is a general presumption that details of previous convictions should not be disclosed, such a presumption being based on a recognition of (a) the potentially serious effect on the ability of the convicted people to live a normal life; (b) the risk of violence to such people; and (c) the risk that disclosure might drive them underground."

An appeal to the Court of Appeal was dismissed. Lord Woolf MR held that "disclosure should only be made when there is a pressing need for that disclosure".

[31]It is common ground between the parties that

Article 8 of the Convention

is engaged by the disclosure of previous convictions held by a public authority. The court is thus required to consider whether the interference with an offender's right is both proportionate and necessary.

[32]In R (Ellis) v Chief Constable of Essex

[2003] EWHC 1321 (Admin)

[2003] 2 FLR 566

the court stated that the principles laid down in ex parte Thorpe had been affected by the coming into force of the Human Rights Act 1998. It was stated that:

"Where human rights are at stake, as is agreed to be the position here, the court's task is no longer merely supervisory and confined to applying the Wednesbury test."

The fact that the court's task is no longer confined to applying the Wednesbury test does not, however, mean that this court is a Court of Appeal on the merits. The defendant's decision is reviewable upon public law grounds, albeit the scope of review, where human rights are at stake, is significantly wider.

[33]The focus of Mr Southey's challenge is as to the proportionality of requiring disclosure in this case. He did not question that the determination by Parliament that offenders released on life licence should be supervised so as, inter alia, to assist in the protection of the public is one that seeks to meet a pressing social need.

[34]As far as the proportionality of the particular decision to disclose in A's case is concerned, Mr Southey, relying on R v A Local Authority in the Midlands and a Police Authority in the Midlands ex parte LM [2000] UKHRR 143 at 1534, submits that the factors that are relevant to determine whether disclosure is proportionate include the degree of risk posed by the offender and the interest of the third party in obtaining the information. With regard to the latter, Dyson J, as he then was, drew a distinction between those with relevant statutory responsibilities -- in that case local authorities with statutory responsibility for the protection of children -- and members of the public, whose sole interest it is to expose those whom they consider to be child sex abusers. In A's case it is proposed that disclosure should be made to a commercial company running sheltered accommodation in which elderly people reside with some measure of oversight and care. Mr Southey accepted that this was not in Dyson J's second category; it was somewhere between the two categories. With regard to the degree of risk posed by the offender, Mr Southey submits that the starting point is the decision of the Parole Board. Notwithstanding the differences of view in those reporting to the Board, the Board preferred the view that A's risk was not sufficient to justify continuing to detain him.

[35]For the reasons given earlier in this judgment, I reject the submission that the probation service was bound to accept the conclusion of the Parole Board. I should add that the submission that this court should consider the proportionality and necessity of the decision challenged on the basis that there is a low risk that A will commit further offences does not, in fact, engage with the decision made by the probation service. They accepted that there was a low risk that A would commit further offences but, having applied the Oasys risk assessment criteria, concluded that there was a medium level of risk of harm.

[36]Mr Southey submits that the fact that the manager of the sheltered accommodation was an employee of a private company with no statutory or public law duty to A or to anyone else means that it is difficult to justify disclosure to that person. That person will owe a duty to his or her employer, whose interests make it contrary to A's interests. In particular, the employer's interest may be harmed by having a convicted murderer living in one of its developments. This may result in an unwillingness to support A. Mr Southey submits that there is no indication of the qualifications of the person who is the manager, so that it is unclear whether that person will be able to provide meaningful assistance in determining risk or sensitive handling of the use of the information disclosed to him or her.

[37]Finally, it will not be possible to prevent the manager of the sheltered accommodation from disclosing details of A's previous convictions to third parties. Mr Southey submits that the Data Protection Act 1998 may not prevent disclosure of A's convictions by the manager, because it is not clear whether the information will be "recorded with the intention it should be processed automatically or as part of a relevant filing system, or with the intention that it should form part of a relevant filing system" (see section 1(a) of the 1998 Act).

[38]Mr Southey also relies on the fact that the risk factors that have been identified in A's case are factors that are likely to develop with time, if they do develop in the future. In particular, the combination of a relationship and health problems are unlikely to develop within days or months. That means, he submits, that the probation service will have noticed that these problems are developing. He also relies on the fact that the probation service is not limited to office appointments. Regular appointments, including home visits, are likely to identify both health problems and the development of a relationship.

[39]Thirdly, he submits that disclosure of A's previous convictions may well increase the risk of his supervision failing by increasing the risk of him becoming isolated because he is shunned by those who know of his convictions of which he is ashamed.

[40]Fourthly, he submits that, should a risk factor start to develop, there is no reason why any disclosure decision should not be reviewed and a decision to disclose taken at that stage. Alternatively, he submits that the probation service has failed to strike a fair balance by failing to recognise the potential harm to A of disclosure and failing properly to take account of Parole Board findings regarding risk.

[41]With reference to the MAPPA guidelines, Mr Southey submits that these have not been followed. It is stated in the recent witness statement that the proposal to go beyond level one only arose because of A's refusal to agree to disclosure. Knowledge of that refusal was, however, known at the time of the risk assessment, and at that stage there was no indication that it was appropriate to manage his risk at a higher level. Mr Southey also submits that the original decision, based as it is on presumption of disclosure to housing providers and without taking account of the fact that this housing provider was not a public authority or a social landlord, meant the provisions of the MAPPA guidance were not followed. Paragraphs 93 and 94 of that guidance state "that disclosure to parties outside the MAPPA agency should only be exceptionally made".

[42]Mr Southey also submitted that reference to the central level team meeting on 29th October did not save the position, because it did not involve a reconsideration of the matter in the light of the MAPPA guidance, but simply agreed with the conclusion in the risk assessment that disclosure was essential. Since, as is seen from the earlier witness statement on 24th October, that conclusion was made on the basis that there was a presumption that disclosure would be made to housing providers, there is no indication in the statement dated 12th November of the fact that the guidelines permitted such disclosure only in exceptional circumstances. Although there is a reference to exceptional circumstances, those circumstances must be part of a risk management plan to which either of the two higher levels of risk management had formally agreed. It would appear that in this case the only reason for moving to level two risk management was A's refusal to consent to disclosure, and that once disclosure had occurred his case was likely to be supervised at level one. Accordingly, submits Mr Southey, even if one did not regard the meeting on 29th October as a last minute attempt to correct the flaws in the earlier decision, the MAPPA guidance was not adhered to, and the failure to adhere to this guidance, he submits, is in itself fatal to the argument that the decision was proportionate. He relies on the decision in Colonel Munjaz v Mersea Care National Health Service trust & others

[2003] EWCA Civ 1036

in which at paragraph 64 it is stated of the requirement that an interference with Article 8 rights must be in accordance with the law, that:

"This requires, not only the domestic legal justification supplied by the principles discussed earlier ,.. but more importantly the character and transparency and predictability required by the Convention concept of legality. This is supplied by the Code of Practice. The Code is the mechanism, not for defining what Article 8 was or requires, but for ensuring that any interference with Article 8 rights is 'in accordance with the law', a necessary ingredient in finding that it is justified under Article 8(2)."

[43]On behalf of the probation service Mr O'Brien submits that the decision to notify the manager of the sheltered accommodation is a proportionate method of meeting the aims of supervising offenders released on life licence, protecting the public and reducing the risk of reoffending. This was because it followed a risk assessment and accorded with MAPPA's guidance, since A's case was recognised as needing level two risk management. Moreover, the Parole Board recognised that close monitoring would be necessary if A entered into another relationship. Information was needed as to whether A formed another relationship so that the supervising officer is able to check how he is settling and if he is forming relationships which might require more intensive work. It is recognised that housing providers should generally be informed so that they can be sure that others are protected and information is available to supervisors. Moreover, he submits, the fact that the nature of the crime may mean that reoffending is less likely than in other criminal activity has to be balanced against the severity of the consequences of a repetition. Finally, this decision in A's case regarding disclosure is made in respect of a person who remains liable to supervision and to be returned to prison as part of his life sentence. The assessment of proportionality in such a case differs from that on facts such as those in Ellis and Thorpe, which involve prisoners released at the end of determinate sentences.

[44]With regard to the fact that the proposed recipient of the information is the manager of a commercial organisation, Mr O'Brien submits that he or she can be reminded that the information should not be disclosed; and there is no reason to believe that a reputable organisation dealing with the elderly, who may have specific health needs, does not recognise and heed the importance of confidentiality. He also relies on the applicability of the Data Protection Act. The role of the manager would merely be to advise as to whether A appears to be involved in a new close relationship. Conclusions on proportionality

[45]For the reasons given earlier in this judgment, I reject the argument that the probation service was bound to accept the Parole Board's assessment. Secondly, the view that A had not sufficiently addressed his offending was one shared by the Parole Board. While the Board decided that did not preclude release, it is a factor which was legitimately taken into account by the probation service in determining the risk of harm. With regard to the argument that disclosure was to be made to an employee of a private company, although there may be difficulties when contemplating disclosure to a person who is not constrained by the duties that constrain a public body and its employees, and these difficulties should be taken into account, if disclosure to a housing provider is in principle justified as proportionate on the facts of a particular case, the private nature of the particular housing provider cannot of itself mean that disclosure to it is disproportionate.

[46]The purpose of disclosure is not for technical management but so that the manager advises the supervising officer as to A's health or whether he is developing a close friendship. I accept Mr Southey's argument that the Data Protection Act 1998 cannot be seen as protecting the information disclosed, because it is not known how, if at all, it would be recorded. Information can, however, be disclosed by either A or by the probation service in confidence to the housing provider. Obligations of confidentiality are enforceable in the courts. In this connection, I note that the discussion of confidence in ex parte Thorpe, see especially Buxton J, as he then was,

[1999] QB 396

at 415-416 was in the context of whether the police were subject to obligations of confidentiality. The key is whether the information comes into the possession of its holder in circumstances that import an obligation of confidence, and it would be possible for either A or the probation service to impose or to only offer the information on the basis that it would be confidential. Moreover, I accept Mr O'Brien's submission that there is no reason to believe that a reputable organisation dealing with the elderly will not recognise and heed the importance of confidentiality.

[47]With regard to the submission that it is disproportionate to require disclosure before the identifying risk factors have developed, the risk assessment considers and rejects the argument that it would be sufficient to make disclosure to the managers in the future. Reasons are given for this, which I have set out earlier in the judgment. Mr Southey submitted that there is a risk that the owner of property will not sell to A if he knows of his conviction. If so, that highlights the disadvantages identified in the risk assessment of leaving disclosure until his health begins to decline or he enters into a close relationship. He would then be found out to have been untruthful, and his integrity and the integrity of the probation service would be put into question.

[48]The probation service used recognised tools for assessing risk, tools with which it is experienced. It formed the view that to monitor A in the community it is necessary for there to be disclosure to the manager of the sheltered property. Clearly, careful and individual consideration has been given to A's position. The difficulty, however, is that in the statement of 24th October it is said that:

"A presumption in favour of disclosure applies to accommodation suppliers."

This presumption informed the decision in the risk assessment. Mr O'Brien in his submission relies on the fact that it is recognised that housing providers should generally be involved. That submission is consistent with a presumption to disclose. The risk assessment, moreover, did not address A's rights, nor explicitly balance the need for disclosure with the potential harm that A anticipates will result from it. It appears from A's probation officer's second statement that A's rights were taken into account at the meeting on 29th October. However, it does not appear that meeting considered the matter afresh. It considered the risk assessment report and its conclusion that a condition of approving the accommodation as suitable would be that the manager was made aware of A's offence.

[49]For the reasons I have given, that conclusion was made on a wrong basis, on the basis of a presumption of disclosure. While the probation service has carefully considered A's case, it has approached the question of disclosure from the wrong starting point. What occurred at the meeting on 29th October, after these proceedings had been instituted, was not the sort of reconsideration of the whole matter that would have enabled the situation to be saved. Accordingly, the decision concerning disclosure in the risk assessment of 25th September confirmed that the central level team meeting on 29th October must be set aside.

[50]The claimant also seeks a declaration that the disclosure of the claimant's previous conviction to the manager of the accommodation where he proposed to lives is unlawful. It will be apparent from what I have said in this judgment that such a blanket declaration is inappropriate. It remains open to the probation service to revisit this matter and to make a fresh decision starting from the point that there has to be a pressing need for disclosure and, in particular, in view of the MAPPA guidelines, that disclosure to third parties is exceptional. To that extent I am prepared to grant the relief sought.

[51]MR SOUTHEY: My Lord, thank you. On behalf of the claimant, I seek the claimant's costs. A schedule was prepared for the last hearing. I do not know whether your Lordship has seen it.

MR JUSTICE BEATSON: Have you got another copy?

[53]MR SOUTHEY: I can hand up my copy. (Same handed)

MR JUSTICE BEATSON: I was not concentrating on the schedule of costs.

[55]MR SOUTHEY: To be frank, I recognised--

[56]MR JUSTICE BEATSON: I recall it. It suggests that being a claimant's solicitor in cases like this is rather good--

[57]MR SOUTHEY: I have to say, having discussed it with my learned friend--

MR JUSTICE BEATSON: --particularly in comparison with the claimant's barrister.

[59]MR SOUTHEY: As a former solicitor, perhaps I ought to say that they probably have higher overheads than I do. But, my Lord, in any event I think my learned friend accepts that the rates charged are equivalent to those that he would have been claiming. I think the problem is, to be frank, that this was produced relatively rapidly.

[60]MR JUSTICE BEATSON: It was. Am I obliged to give summary assessment?

[61]MR SOUTHEY: No.

[62]MR JUSTICE BEATSON: I do not think I am. In these circumstances the costs should be either agreed or taxed in the ordinary way.

[63]MR SOUTHEY: Yes. I think that makes a lot of sense.

[64]MR O'BRIEN: My Lord, so far as the method of disposal, I do not resist. As to the principle of costs, my Lord, obviously Mr A has achieved his aim of not having disclosure at this stage. But two principle issues have been canvassed and resolved in favour of my client:(1) the basis upon which we are bound by the probation service, and

(2) whether we can in this type of case make a lawful determination within the existing framework. On that basis it is submitted that Mr A, particularly, should receive a proportion of his costs but that he should not receive the entirety of his costs. In my submission, in those circumstances, your Lordship should direct a detailed assessment with it being determined that my client should pay a specified proportion of those costs.

[65]MR JUSTICE BEATSON: Had the second statement or the information in the second statement been made available at the time that the first statement was made available, that might have been arguable. This case, and the way you presented it, really reflected that statement that was made just before the hearing, was it, on 12th or 13th?

[66]MR O'BRIEN: I accept that.

[67]MR JUSTICE BEATSON: So in those circumstances, although Mr Southey has lost on some of his submissions, I do not know whether he would have done what all claimants in judicial review are supposed to do when they see good arguments, which is to reconsider their position. He has, in the end, had to deal with the rather shambolic way in which this decision was approached and was brought to court.

[68]MR O'BRIEN: Well, my Lord, yes, of course. I appreciate that it was in vain, but this case did not turn on the basis of the MAPPA guidance making a difference. The argument was: you have approached it from the wrong stand point. The MAPPA guidance argument strengthened my learned friend's argument in terms of the framework and identified that it was a within a different framework that we should have been disclosing. I accept that. But, my Lord, in my submission, having received that, what we are not being asked to do was to revisit it. The argument is: it is bound to fail in any event; you cannot reach a proper decision. So, my Lord, that is why it is my submission that the defendant should only pay a proportion of those costs.

[69]MR SOUTHEY: My Lord, to say that we were not asking the defendant to revisit the decision once the MAPPA guidelines were disclosed, in my submission just does not hold water: because your Lordship will remember that a note was submitted by me as soon as I was aware of what the likely contents of the witness statement were, and before the witness statement was actually drafted, to make sure these issues were raised or were on the agenda as soon as possible. We were in an extremely difficult position, in the sense that the witness statement came through to me, from memory, on the afternoon--

MR JUSTICE BEATSON: After you drafted the note.

[71]MR SOUTHEY: --after I drafted the note and on the afternoon two days before the hearing. It was one of those circumstances where to take meaningful instructions from the client was going to be very difficult, not least because of the fact that the client was in custody and is not someone who can be contacted at a moment's notice.

MR JUSTICE BEATSON: But, in fact, many of the points in your claim have not been sustained.

[73]MR SOUTHEY: My Lord, the other point I would make in relation to that is about the relative resources of the party, which in my submission is a relevant factor. The claimant is a man who obviously has some resources, in the sense he is able to buy a home, but he is not of unlimited resources by any means. He has spent a considerable period of time in custody. He is somebody who is about to resurface in the community having succeeded in his claim ultimately. In those circumstances--

MR JUSTICE BEATSON: Well, he has achieved success today.

[75]MR SOUTHEY: Yes. My Lord, it may well be that the claim would have been drafted very differently had the matter in the witness statement been disclosed earlier. To be honest, I do not know whether it would have been drafted, because inevitably when you are at the door of the court it becomes a bit more difficult to change things.

[76]MR JUSTICE BEATSON: Mr O'Brien's submits that, although in the end the decision of 25th September has been set aside, because it has been set aside on a much more limited basis than the challenge by the claimant, the claimant should only recover a proportion of his costs. I see no reason for departing from the ordinary view that the successful party should have its costs.

[77]In this case it became apparent, and it was not argued at the hearing, that the decision of 25th September was sustainable in itself. Mr O'Brien's argument proceeded on the basis that it was (colloquially) saved by the information about the MAPPA process, which was revealed by the probation officer's second statement sworn two days before the hearing. In those circumstances, for those reasons also, I see no reason for departing from the ordinary rule. (The Court Adjourned)