Ahmed, R (on the application of) v The National Probation Service & Anor [2011] EWHC 1332 (Admin)

[2011] EWHC 1332 (Admin)

Case No CO/4946/2010

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27 May 2011

Before

MR JUSTICE KEITH

Between

R (on the application of Muhammed Habeebuddin Ahmed)Claimant

(1) The National Probation ServiceDefendants

(2) The Secretary of State for JusticeDefendant

Mr Hugh Southey QC (instructed by Hodge Jones & Allen LLP) for Claimant

Mr Neil Sheldon (instructed by the Treasury Solicitor) for Defendants

Hearing Hearing dates: 7-8 March 2011

Judgment

Introduction

[1]When prisoners are released from prison, they are not free from all restrictions. Their release is usually on licence, and they are required to comply with the conditions of their licence. This case is all about the conditions which were imposed on a particular prisoner on his release. There was one feature about them which was comparatively unusual, and their lawfulness has been subject to a sustained attack. Were they so onerous that they amounted to a deprivation of his liberty? Did they constitute an unnecessary and disproportionate interference with his right to respect for his private life? And when the prisoner complained about them, should his complaint have been referred to the Parole Board? Although these questions raise wide-ranging issues, they are still case-specific, and I trust that I will be forgiven for setting out the relevant facts in some detail.

The facts

[2]The offences. The claimant, Muhammed Habeebuddin Ahmed, was born on 16 November 1961. He is now 49 years old. On 27 January 2006 he was sentenced to concurrent terms of imprisonment totalling nine years in all for two offences of rape, one offence of kidnapping and one of false imprisonment. The previous July he had pushed his estranged wife into his car, held her captive in the car while they talked about their marital problems, tied her legs with cable, taken her to where he was living with members of his family, and raped her twice. She was eventually rescued by the police after she had managed to raise the alarm. He had pleaded not guilty to all charges.

[3]The judge had had to consider whether an indeterminate sentence of imprisonment for public protection might have been appropriate. Risk assessment tools had assessed his risk of general re-offending as low, but that was not surprising in view of his lack of previous convictions, his age and the high level of stability and structure in his life. But the pre-sentence report on him had concluded as follows:

“There is no indication that he has addressed the issues that led him to offend in this way and at this stage there is little work that can be undertaken with him given his high levels of denial. I would therefore consider him to continue to pose a high risk of harm against his current partner and also a potential high risk of harm towards future partners, should a similar set of circumstances arise and were Mr Ahmed again to feel the need to regain the control in their relationship.”

In the end, the judge decided that an indeterminate sentence of imprisonment would not be appropriate. Although Mr Ahmed had behaved towards his wife in an arrogant and overbearing way, he had not stooped to violence before. Things had been “boiling over quietly” during the time that Mr Ahmed and his wife had been apart from each other – indeed, the evidence was that during that time Mr Ahmed had repeatedly tried to contact her with the result that she had had to change her address and telephone number – and the judge thought that there may have been something in the suggestion that Mr Ahmed had just “snapped”. He concluded his observations on the issue as follows:

“… I cannot say that there will be a significant risk of you remaining being obsessed with your wife after you have completed the sentence I am about to pass upon you, including the period of licence that inevitably will attach to it.”

The last remark showed that the judge had taken into account the fact that Mr Ahmed would be released on licence after he had served half his sentence (less the 186 days he had been in custody on remand prior to sentence). He even said that when it came to determining what the conditions of his licence should be, consideration should be given to a condition that he should not contact his wife.

[4]The continuing risk which Mr Ahmed posed. Mr Ahmed was released from prison on 26 January 2010. His release was mandatory, of course, and was not dependent on the level of the risk of harm he posed to his wife, or the seriousness of such harm as she might be at risk of. However, an OASys assessment completed a few days after his release showed that although he denied wanting to get in touch with his wife, he still posed a high risk of serious harm to her, despite the trial judge’s conclusion that the risk would not be significant. That conclusion may have been based on the fact that Mr Ahmed had never shown any remorse for what he did. On the contrary: he regarded himself as having been unjustly convicted, because in his culture – he is a Muslim who came to this country from India when he was a boy – what he did would not have been regarded as wrong. His denial of guilt meant that he had not engaged with any offence-related work while in prison. Moreover, at the time of his release from prison, Mr Ahmed was involved in divorce proceedings brought against him by his wife which he was contesting. He was thought to bear a significant degree of animosity towards her, which was likely to grow as the proceedings continued, especially as he resented the possibility that she would be entitled to “his” money on their divorce.

[5]The conditions of Mr Ahmed’s licence. Mr Ahmed was released from prison because sections 244(1) and (3)(a) of the Criminal Justice Act 2003 (“the 2003 Act”) required the Secretary of State for Justice (“the Secretary of State”) to release prisoners serving a determinate sentence of imprisonment of 12 months or more on licence once they had served half their sentence. The conditions of Mr Ahmed’s licence included the mandatory standard conditions, such as remaining well-behaved, not committing any offence and maintaining contact with his supervising officer. They also required him to stay away from the areas where his wife and members of her family lived (the areas of Leeds and Bradford), not to contact her or her family, and to notify his supervising officer of “any developing personal relationships with women”. The relevant conditions for present purposes were that he had to live at a probation hostel in Basildon, to remain in the hostel between 10.00 pm and 8.00 am, and to report to staff at the hostel every two hours between 8.00 am and 10.00 pm, unless excused from doing so by his supervising officer. The reason why he was required to live at a probation hostel rather than be permitted to return to where he had been living with his parents in Southend-on-Sea before going to prison was because of the risk of harm he was thought still to pose to his wife. The reason for the reporting requirement was because he knew where his wife lived, and it was thought that he should not have the time or the opportunity to get there. Mr Hugh Southey QC for Mr Ahmed told me that although he knew of cases in which a reporting requirement of this kind had been coupled with a condition of residence at a probation hostel and a night-time curfew, such a combination was comparatively unusual.

[6]These conditions must be treated as having been imposed by the Secretary of State, since it is the Secretary of State who specifies the conditions of a prisoner’s licence (see, for example, sections 250(2)(b)(ii) and 250(4)(b)(ii) of the 2003 Act), even though it was Essex Probation Service (“the Probation Service”), and not the National Probation Service who Mr Ahmed named as the First Defendant, who had actually decided what conditions were necessary in Mr Ahmed’s case. They were imposed pursuant to section 250(4) of the 2003 Act, which provides that the licence for a prisoner such as Mr Ahmed has to contain various standard conditions, but can also include conditions of the kind prescribed by the Secretary of State. The Criminal Justice (Sentencing) (Licence Conditions) Order 2005 (No. 648 of 2005) (“the 2005 Order”) provides that the conditions have to include a condition of residence at an approved address and for prior approval for any work, and can include a condition requiring the former prisoner to comply with a curfew as well as other conditions which restrict his freedom of movement.

[7]These conditions were relaxed over the course of time. After a few weeks, the reporting condition was relaxed on Fridays to make it easier for Mr Ahmed to go to the local mosque, and with effect from 26 March 2010, the reporting condition was further relaxed so that he had to report to staff at the hostel every three hours instead of every two, though regular reporting was still required in order to protect Mr Ahmed’s wife. This claim for judicial review was commenced on 23 April 2010, and since then the conditions have been progressively relaxed quite significantly. On 17 May 2010, the reporting condition was varied to require him to report to staff at the hostel every four hours instead of every three, and from 25 June 2010 it was further varied to require him to report to staff at the hostel once a day at noon. In the meantime, the curfew hours were reduced on 28 May 2010 from 10 hours to 8, so that his night-time curfew was from 10.00 pm to 6.00 am, though that was later varied so that his curfew was from 11.00 pm to 7.00 am. From 25 June 2010, the curfew hours were further reduced from 8 hours to 7, so that his night-time curfew was from 11.00 pm to 6.00 am. From 29 July 2010, he was no longer subject to a reporting condition at all. On three days in August 2010, he was permitted to stay overnight with his parents. And from 17 September 2010 he was no longer required to live at the probation hostel. He was permitted to reside permanently with his parents, though he had to report to probation staff once a week.

[8]Mr Ahmed’s proposed work. Much of Mr Ahmed’s case is that the conditions of his licence prevented him from working in the family business which was what he had wanted to do. His evidence about his work prior to going to prison is on the vague side. In his witness statement of 22 April 2010, he simply said that he “had been involved in running and maintaining a number of companies, all of which were family enterprises owned by [his] parents”. There is some evidence that initially at any rate his plan was not to return to that work immediately. A few days before his release, Mr Ahmed told a probation officer that he would not be working following his release, as he would be concentrating on his divorce case and challenging his sentence (for which he said he had 30,000 legal documents). He made a similar comment when he arrived at the probation hostel for the first time. Indeed, he was objecting to the reporting requirement because he would “not be able to get back to Southend with enough time to work on hiscourt cases”. (Emphasis supplied). However, I do not think that this is particularly strong evidence of any lack of commitment on Mr Ahmed’s part to work in the family businesses. It may be that Mr Ahmed was simply talking about what he was proposing to do in his spare time. Indeed, the OASys assessment completed a few days after his release showed that he had previously said that he intended “to return to running [the] family businesses on release”. Moreover, when Mr Ahmed was required following his release to register for work at his local job centre, one of the reasons his solicitors gave the Probation Service for Mr Ahmed’s reluctance to do that was that he had “a job which he would be able to take up with his family business”, and a week or so later Mr Ahmed told a probation officer that he would be working in the family business once he moved out of the hostel.

[9]Shortly after that, the Probation Service was sent copies of two letters (both dated 8 February 2010) confirming offers of employment to Mr Ahmed. They were from H & E Properties Ltd and F N Computers Ltd. The letter from H & E Properties Ltd gave its address as the address in Southend at which Mr Ahmed had been living with his parents before going to prison. It referred to the fact that Mr Ahmed had been employed prior to his arrest “within the family businesses as a full time General Manager”, and that the post would be available for him when he returned to his home in Southend. It did not identify Mr Ahmed’s duties and where he would have to carry them out.

[10]A little more information was given in a letter from Mr Ahmed’s solicitors of 23 February 2010. It said:

“[H & E Properties Ltd] is a property rental and development company, based in an office at 136 York Road in Southend-on-Sea. Mr Ahmed would be employed on a full time basis as General Manager, which would involve both the direct management of the rental properties owned by H & E Properties Ltd and work on new developments which H & E will be involved in. In particular, Mr Ahmed would be buying and selling properties, attending auctions, clearing out and decorating properties, liaising with tradesmen – builders/plumbers/electricians, and arranging the purchase and refitting of fixtures and fittings. We understand that much of the work of this company has been in limbo pending Mr Ahmed’s return, and there is a great deal of paperwork which he would be required to work through.”

The letter of 23 February 2010 explained that this was a role which Mr Ahmed had been doing before he went to prison. It went on to say that once the backlog of work had been cleared, and there was no longer an immediate problem with any of the properties, Mr Ahmed would be able to work for F N Computers Ltd. In his witness statement of 22 April 2010, Mr Ahmed was to say that this company’s business had been sold by his family before he had gone to prison. The letter of 8 February 2010 had said that his job there would be as an international sales and product placement officer, and could be either on a part-time or full-time basis. The letter of 23 February 2010 described this role as more flexible than the one at H & E Properties Ltd. Mr Ahmed would be based at an address in Westcliff-on-Sea, and he would be negotiating and arranging the import of software and computer hardware. The letter said that this had again been a role which Mr Ahmed had been doing before he went to prison.

[11]The letter of 23 February 2010 made the point that Mr Ahmed could not carry out these roles while the current conditions of his licence were in place. His role with F N Computers Ltd can, I think, be put to one side because it was going to be some time before Mr Ahmed took up the offer of employment there. However, his request for the reporting requirement to be relaxed was refused by the Probation Service by their letter of 9 March 2010 on the basis that Mr Ahmed had been “able to carry out his business from custody”, and that Mr Ahmed would therefore be able to “work around” his reporting requirements. The Probation Service was later to say that the information about him running his businesses from prison had come from “confidential sources” which could not be disclosed, though if the business of F N Computers Ltd had been sold before Mr Ahmed went to prison, that business could not have been included in the information which the Probation Service had received. Moreover, although one can see how strategic decisions about a business can be made while someone is in prison, it is not easy to understand how Mr Ahmed could have run the sort of business which H & E Properties Ltd’s was from prison.

[12]The Probation Service went into this in greater detail in its letter of 16 April 2010 to Mr Ahmed’s solicitors when it responded to his solicitors’ letter before action. The letter said:

“… I have again consulted with his Offender Managers and as stated previously, understand that he was able to continue to carry out his business from custody. He has also informed his Supervising Officers that he has attended various auctions etc in the course of carrying out his employment in the community, and has worked these around his curfew restrictions. My understanding is that Mr Ahmed is involved in a number of business ventures, about which he has been quite vague at times, as he has appeared concerned that any information he might provide to this Service might jeopardise the divorce proceedings/financial settlement with his wife. We would need to be provided with much more specific detail about Mr Ahmed’s business interests in order to assess whether his current curfews are making his employment unmanageable and at the time of writing it would seem he may be reluctant to do this.”

The references to curfews and curfew restrictions in this letter were in fact references to the reporting requirements.

[13]No additional information about Mr Ahmed’s role at H & E Properties Ltd emerged from Mr Ahmed’s witness statement of 22 April 2010 which was served when the claim for judicial review was filed, though Mr Ahmed pointed out that the journey to Southend from Basildon took 45 minutes in the morning rush hour, and about 25 minutes at other times. That left him with hardly any time to work, and he had not done so. He had attended one property auction, but that had been for only half an hour (even though such auctions typically go on for 2 hours), and since he was not working, he had gone to it out of interest only. For its part, the Probation Service was later to say that the probation hostel was about 11 miles from the centre of Southend. It took about 20 minutes to drive there in normal traffic, but it could take longer at peak times.

[14]It should be said that Mr Ahmed was told fairly early on that the reporting requirement could be relaxed if it prevented him from working. Admittedly, he was told that in response to his solicitors saying that he felt uncomfortable about registering at the local job centre since the reporting requirement meant that his availability for work was limited. But the Probation Service’s letter of 16 April had said that the reporting requirement would be re-assessed if further information about Mr Ahmed’s role in the family business showed that his “employment” in the business was “unmanageable”.

The nature of the challenge

[15]It is important to emphasise that the challenge to the conditions imposed on Mr Ahmed’s licence is not based on conventional judicial review grounds. There is, for example, no complaint about their irrationality. The complaint is that the reporting requirement (when coupled with some of the other conditions including the curfew) infringed Mr Ahmed’s right to liberty protected by Art. 5 and his right to respect for his private life protected by Art. 8. It is also said that the unavailability of a dedicated mechanism for challenging the conditions of his licence – for example, by a reference to the Parole Board – infringed his right to a fair hearing of the determination of his civil rights protected by Art. 6. However, Mr Ahmed accepts that since 25 June 2010 when the reporting requirement was relaxed to require him to report to staff at the hostel once a day at noon and his night-time curfew was varied to 7 hours, his rights under Arts. 5 and 8 were no longer being infringed. The only order he seeks, therefore, apart from the court’s judgment making it clear that his rights under Arts. 5, 6 and 8 have been infringed, is an order transferring to the normal Queen’s Bench Division list his claim for damages for the infringement of his rights under Arts. 5 and 8.

[16]There is one small wrinkle in all of this. When giving permission for Mr Ahmed’s claim to proceed, Owen J observed:

“It is arguable that the licence conditions amount to an unlawful deprivation of liberty and/or to a disproportionate interference with the claimant’s Article 8 Rights.”

In other words, Owen J thought that it was arguable that Mr Ahmed’s rights under Arts. 5 and 8 had been infringed. But he said nothing about the arguability of Mr Ahmed’s claim that the absence of a dedicated mechanism for challenging the conditions of his licence infringed his rights under Art. 6. I am not prepared to assume that Owen J gave permission for that part of Mr Ahmed’s claim to proceed when he could have said that in his observations but did not. In the circumstances, it was agreed that the hearing of this claim for judicial review should, in addition to determining whether Mr Ahmed’s rights under Arts. 5 and 8 have been infringed, also be the venue for a “rolled-up” hearing of Mr Ahmed’s claim that his rights under Art. 6 have been infringed.

[17]There is one other point I should deal with here. Even after his release from prison, Mr Ahmed could be said to be still serving his sentence, albeit in the community. In that sense, he might be said to have still been a serving prisoner. In the light of that, I raised the question in the course of argument about the reach of Art. 5 (and indeed of Art. 8) when it comes to serving prisoners. Mr Sheldon did not seek to argue that Mr Ahmed should be regarded as a serving prisoner, and I therefore left the matter there.

Art. 5: Deprivation of liberty

[18]The effect of the conditions of Mr Ahmed’s licence between the date of his release on 26 January 2010 and 25 June 2010 was that when he was not subject to a night-time curfew, he had to report to staff at the hostel(a) every two hours until 26 March 2010,

(b) every three hours until 17 May 2010, and

(c) every four hours thereafter. I shall come in due course to the extent to which his ability to work in the family business was affected. What he was able to do, or where he was able to go, or who he was able to see, when he was not subject to a night-time curfew was theoretically unlimited (save for his wife and her family), but in practice it was restricted by the need for him to return to Basildon every few hours.

[19]Art. 5 prohibits the deprivation of liberty. Whether a particular set of obligations amounts to a deprivation of someone’s liberty, or merely a restriction on their movements, has been considered most frequently in the context of control orders. But there is a critical difference between Mr Ahmed and the defendants about one aspect of these cases. Mr Neil Sheldon for the defendants contends that before someone can be said to have been deprived of their liberty, a sufficiently stringent “core element” of confinement must be present. That was apparent from some of the observations in Secretary of State for the Home Department v E

[2008] 1 AC 499

. Baroness Hale at [25] said: “The starting point in any consideration of deprivation of liberty is the ‘core element’ of confinement”, and at [11], Lord Bingham said that if “the core element of confinement” was “insufficiently stringent”, other restrictions on the controlee could not convert the case into one in which the controlee could be said to have been deprived of his liberty. Mr Sheldon acknowledged that there is no “bright line” separating those periods of confinement which may give rise to a deprivation of liberty and those which cannot. But he said that it was easy enough to identify from the four leading authorities roughly where the line should be drawn:• In Secretary of State for the Home Department v JJ

[2008] 1 AC 385

, a curfew of 18 hours was found to amount to a deprivation of liberty when considered along with the other restrictions on the controlee.

• In Secretary of State for the Home Department v AP

[2010] 3 WLR 51

, it was held that a curfew of 16 hours might amount to a deprivation of liberty if the other restrictions on the controlee were “unusually destructive of the life the controlee might otherwise have been living” (Lord Brown at [4]).

• In Secretary of State for the Home Department v

(1) MB and

(2) AF

[2008] 1 AC 440

, a curfew of 14 hours imposed on AF was held not to amount to a deprivation of his liberty.

• In E, a curfew of 12 hours was held not to amount to a deprivation of liberty, and such a curfew was said to be in line “with the range which Strasbourg has accepted as merely restricting movement” (Baroness Hale at [25]). So wherever the line is to be drawn, a curfew of 10 and subsequently 8 hours which had been imposed on Mr Ahmed until it was reduced to 7 hours on 25 June 2010 fell, so Mr Sheldon argued, by some margin on the side of the line restricting his movement rather than a deprivation of his liberty.

[20]Mr Southey’s stance was otherwise. He argued that the length of the curfew was not decisive. It was appropriate to start with the length of Mr Ahmed’s curfew, but the court must then consider the extent to which the whole package of measures prevented Mr Ahmed leading a normal life. If, for example, Mr Ahmed had been required to report to staff at the hostel every 15 minutes, the fact that the curfew was only for 10 hours would not of itself have meant that Mr Ahmed could not be regarded as having been deprived of his liberty. In other words, it is necessary to look at both the length of Mr Ahmed’s curfew as well as the restrictions on what he could do in his non-curfew hours in deciding whether the package of conditions amounted to a deprivation of his liberty or merely a restriction on his movements.

[21]I am sceptical about the approach contended for by Mr Sheldon. It is, on the face of it, inconsistent with what Lord Bingham said in JJ about the approach to Art. 5 sanctioned by the European Court in Guzzardi v Italy

(1980) 3 EHRR 333

. That was a case in which someone suspected of association with organized crime was required to live for three years on a small island off the coast of Sardinia, which was then being used mainly as a high security prison. A small part of the island lay outside the prison, and was available for residence by people “under special supervision” like Guzzardi. In JJ – which the House of Lords decided at the same time as E – Lord Bingham said at [16]:

“There may be no deprivation of liberty if a single feature of an individual situation is taken on its own but the combination of measures considered together may have that result: Guzzardi, para. 95. Consistent with this approach, account was taken in Guzzardi of a number of aspects of the applicant’s stay on the island of Asinara: the locality; the possibilities of movement; his accommodation; the availability of medical attention; the presence of his family; the possibilities of attending worship; the possibilities of obtaining work; the possibilities for cultural and recreational activities; and communications with the outside: pp 342-345. In the result, the court on the facts attached weight, at para. 95, to the small area of the island open to him, the dilapidated accommodation, the lack of available social intercourse, the strictness of the almost constant supervision, a nine-hour overnight curfew, the obligation on him to report to the authorities twice a day and inform them of any person he wished to telephone, the need for consent to visit Sardinia on the mainland, the liability to punishment by arrest for breach of any obligation and the sixteen-month period during which he was subject to these restrictions. Some of these matters plainly fell within the purview of other articles of the Convention. Because account must be taken of an individual’s whole situation it seems to me inappropriate to draw a sharp distinction between a period of confinement which will, and one which will not, amount to a deprivation of liberty, important though the period of daily confinement will be in any overall assessment.” (Emphasis supplied)

The European Court decided that although Guzzardi’s curfew was only 9 hours, the whole package of measures to which he had been subjected meant that he had been deprived of his liberty. Having said that, the accommodation of those living on the island “under special supervision” was somewhat primitive. They could not go to the neighbouring village. And the portion of the island in which they were confined was only about 2.5 sq. kms., and was described as “a scrap of land”. It was said that they “were effectively cut off from much human contact apart from persons in compulsory residence and those supervising them”. It could therefore well be argued that Guzzardi was not so much a case of confinement for just the 9 hour curfew, but actual confinement for 24 hours a day.

[22]However, rather than decide whether a sufficiently stringent “core element” of confinement must be present before someone can be said to have been deprived of their liberty, I propose to consider first, as Mr Southey invited me to do, whether the combination of Mr Ahmed’s curfew and the other restrictions imposed on him was so “destructive of the life [he] might otherwise have been living” (Lord Brown’s phrase in AP) that the obligations to which he was subject could not simply be characterised as a restriction on his movements. In this context, I bear in mind Mr Southey’s point about the premium which the European Court places on a person’s ability to work. In Niemietz v Germany

(1992) 16 EHRR 97

, the Court said at [29] that “it is … in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world”. That comment was made in the context of the extent to which Art. 8 protects the right to respect for one’s private life, and it is hardly relevant to Mr Ahmed’s case during the period up to 25 June 2010, during much of which time Mr Ahmed would have been devoting himself to paperwork. Having said that, the fact that one’s ability to work is a relevant factor when considering whether someone has been deprived of their liberty is apparent from the Court’s decision relating to the admissibility of the complaint in Trijonis v Lithuania (Application no. 2333/02). In that case, the applicant’s home arrest (which required him to remain at home 24 hours a day) was amended, and he was permitted to go to his place of work on weekdays, provided he remained at home between 7.00 pm and 7.00 am on weekdays and during the whole of the day at weekends. The Court declared admissible the complaint that his home arrest prior to the amendment deprived him of his liberty, even though it decided that the remainder of his complaint was inadmissible.

[23]The argument advanced on Mr Ahmed’s behalf is that the reporting requirement effectively prevented him from working in the family business until it was relaxed from 25 June 2010. How could he work in Southend if he had to report to staff at Basildon every two hours? His inability to work in the family business when coupled with his curfew was, so the argument went, “so destructive of the life [he] might otherwise have been living” as to amount to a deprivation of his liberty. I cannot go along with this argument at all. Mr Ahmed has never explained why the reporting requirement prevented him from working for H & E Properties Ltd. His solicitors’ letter of 23 February 2010 did not identify the size of the business’s property portfolio, or where its properties were, or how frequently Mr Ahmed would have to visit them, or where else he would have to go, or where the auctions would be held, or how often Mr Ahmed would have to attend them, or how frequently he would have to meet tradesmen (or tenants and prospective tenants for that matter). And if Mr Ahmed was initially going to spend at least some of his time on paperwork, there was no explanation why he could not have done that at the hostel, or during the time when the reporting requirement allowed him to be at H & E Properties Ltd’s office (save that he would be constantly worrying about getting back to the hostel in time), or at an office which he could rent in Basildon. It may be that the answer is that the paperwork was in many files, that they were too bulky to be removed from the office in Southend, and that it would have been too disruptive to that work if it had to be interrupted every hour or so for Mr Ahmed to make the trip back to Basildon, but there is no evidence that that was the case, and I cannot just assume that it was. It was not as if he was advised that he should not work on the paperwork at the hostel. The only advice he claims to have got was that he should not leave the documents relating to his court cases at the hostel. It follows that Mr Ahmed was at most inconvenienced in his participation in the affairs of H & E Properties Ltd, and he was not actually prevented from working for it.

[24]But even if the effect of the reporting requirement was to prevent Mr Ahmed from working for H & E Properties Ltd, did the combination of that and the curfew amount to the deprivation of his liberty? That is very much a matter of judgment, but I have concluded that it was still some way from amounting to a deprivation of his liberty. The fact is that Mr Ahmed could have been more forthcoming with the Probation Service about why working for the family business had become “unmanageable”, and that may have resulted in a much earlier relaxation of the reporting requirement. Alternatively, if he did not want to disclose what his work with H & E Properties Ltd actually involved (either because he thought it might jeopardise his position in the divorce or any ancillary relief proceedings, or for any other reason), there was nothing to prevent him looking for work in Basildon, especially as the Probation Service had told his solicitors that the reporting requirement could be relaxed if it prevented him from working.

Art. 8: The right to respect for private life

[25]In R (on the application of Carman) v Secretary of State for the Home Department

[2004] EWHC 2400 (Admin)

, Moses J (as he then was) rejected the contention that a requirement on a recently released prisoner living at a probation hostel and subject to a night-time curfew to report to staff at the hostel every two hours infringed the released prisoner’s right to respect for his family life protected by Art. 8. But each case is dependent on its own facts, and Mr Ahmed’s case needs to be considered with that in mind.

[26]The European Court has recognised that a prohibition on work is capable of amounting to an interference with the right under Art. 8 to respect for one’s private life. In Sidabras v Lithuania

(2006) 42 EHRR 6

, the two applicants were forbidden from working for ten years in any public sector post and in some private sector posts because they were former KGB officers. On their complaint about the partial prohibition on their employment in the private sector, the Court held that the prohibition amounted to an infringement of their right not to be discriminated against under Art. 14 when taken in conjunction with Art. 8 (and that it was therefore unnecessary to consider whether the prohibition amounted to an infringement of their rights under Art. 8). The prohibition, the Court said at [48], “affected [their] ability to develop relationships with the outside world to a very significant degree”, and “created serious difficulties for them as regards the possibility to earn their living, with obvious repercussions on their enjoyment of their private life”. The Court concluded at [50] that “in view of the wide-ranging scope of the employment restrictions which the applicants had to endure, … the possible damage to their leading a normal personal life must be taken to be a relevant factor in determining whether the facts complained of fall within Art. 8 …”

[27]The reporting requirement imposed on Mr Ahmed did not prevent him from undertaking any employment. If he found work in Basildon, consideration would be given to the reporting requirement being relaxed so that it did not interfere with that work. The problem, so it is said, is that it prevented Mr Ahmed from working in the family business. It was not as if he had been able to run it while he was in prison. Not only would that have been contrary to Prison Service Order 4465 which prohibits prisoners from conducting business transactions (which could be said to amount to a ban on a prisoner running a business). It would have been highly unlikely, as I have already said, for Mr Ahmed to have been able to run a property company from prison (whether the business involved buying, developing and selling properties or renting properties out). In those circumstances, the need for him to be able to return to the running of the family business as soon as possible after his release was that much more acute. Indeed, it is said that being able to run the family business made Mr Ahmed’s successful rehabilitation into society more likely, and that accorded with one of the aims of Art. 8 when it comes to serving prisoners, namely “to assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate prisoners’ social rehabilitation”: McCotter v The United Kingdom (Application no. 20479/92) at p. 5.

[28]This argument suffers from the same vice as the argument under Art. 5. For the reasons given in [23] above, Mr Ahmed was not prevented from working in the family business. He was at most inconvenienced in his participation in its affairs. That inconvenience may have amounted to a modest interference with Mr Ahmed’s exercise of his right to respect for his private life, but it cannot be said that the level of that interference had attained the minimum level of severity as to have consequences of such gravity as to engage the operation of Art. 8.

[29]In these circumstances, it is strictly speaking unnecessary for me to consider Mr Southey’s argument that such interference as there was with Mr Ahmed’s rights under Art. 8(a) was not in accordance with the law and

(b) was a disproportionate and unnecessary response to the need to monitor Mr Ahmed’s whereabouts and to ensure that he did not contact his former wife and her family. However, the requirement that he reported regularly to staff at the hostel was sanctioned by the 2005 Order, even if it impacted on his ability to work in the family business. And the problem with Mr Ahmed working in the family business was that it would have been much more difficult to know where he was at any particular time than if he had been working in a conventional job of the kind which he might have found at the local job centre. Not only would his employers have been far more likely to know where he was; such a job would have been likely to result in Mr Ahmed having less of an opportunity to leave work and try to see his wife than if he was in effect working for himself in the family business.

Art. 6: Absence of a hearing

[30]The mechanism which is said to have been capable of providing Mr Ahmed with a suitable opportunity to challenge the conditions of his licence was a reference to the Parole Board. But the Parole Board was very unlikely to have been able to determine such a reference by the time the reporting requirement had been relaxed to the extent that it could no longer be said to have been interfering with Mr Ahmed’s ability to work in the family business. That, no doubt, is the reason why, unlike the alleged breaches of Arts. 5 and 8, no claim for damages is being pursued by Mr Ahmed for the alleged breach of Art. 6 in respect of the absence of a dedicated mechanism for challenging the conditions of his licence. The only relief which is sought is a declaration that his right to challenge the conditions of his licence by an Art. 6 compliant procedure has been infringed.

[31]The unavailability of any substantive relief does not necessarily mean that it is completely pointless to consider the impact of Art. 6. The question whether Art. 6 requires a dedicated mechanism, such as a reference to the Parole Board, for a prisoner who wishes to challenge the conditions imposed on him when he is released from prison on licence is an important one. Having said that, if Art. 6 is to require a dedicated mechanism for a recently released prisoner to challenge the conditions of his licence, the conditions which he wishes to challenge must have affected his civil rights in such a way that the resolution of the challenge can be said to determine his civil rights. The issue is therefore case specific. Whether the prisoner’s rights which would be determined on such a challenge would amount to his civil rights within the meaning of Art. 6 will depend on the nature and effect of the conditions he wishes to challenge. In Mr Ahmed’s case, he wishes to challenge those conditions whose effect was to prevent him working in the family business. The civil right which he asserts, therefore, is said to be the right not to have his rehabilitation, career development and earning capacity impeded by his inability to work in the family business.

[32]But this issue needs to be addressed only if there was not already in existence a mechanism – not necessarily a dedicated one – which provided Mr Ahmed with an appropriate opportunity to challenge the conditions of his licence by an Art. 6 compliant procedure. That is because Art. 6 will have been satisfied if decisions relating to the conditions of the licence imposed by the Secretary of State on a recently released prisoner are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Art. 6.1”: Albert & Le Compte v Belgium (Application nos. 7299/75 and 7496/76) at [29]. One of the core points taken on behalf of the Secretary of State is that the present claim for judicial review provided Mr Ahmed with such an opportunity. Thus, his complaint that the combination of the curfew and the reporting requirement amounted to the deprivation of his liberty and constituted an unwarranted interference with his right to respect for his private life will have been determined in the court’s judgment on the claim. However, the function of the court on a claim for judicial review is a reviewing function, and the question is whether the limited nature of the court’s power to set aside executive decisions renders a claim for judicial review an unsuitable mechanism for recently released prisoners to challenge the conditions of their licence.

[33]The limited nature of a claim for judicial review and its impact on Art. 6 has most recently been considered by the House of Lords in R (on the application of Wright) v Secretary of State for Health

[2009] 1 AC 739

. At [23], Baroness Hale said:

“What amounts to ‘full jurisdiction’ varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject matter of the decision and the quality of the initial decision-making process. If there is a ‘classic exercise of administrative discretion’, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case. The planning system is a classic example (Alconbury); so too, it has been held, is the allocation of ‘suitable’ housing to the homeless (Runa Begum); but allowing councillors to decide whether there was a good excuse for a late claim to housing benefit was not: Tsfayo.”

[34]Two of these cases were cited extensively to me. Alconbury – i.e. R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] 2 AC 295

– was not, and all that needs to be said is that in that case the House of Lords considered the procedure whereby the Secretary of State had the power himself to determine certain matters of planning and compulsory purchase, subject to judicial review. The House of Lords held unanimously that since the decisions in question involved substantial considerations of policy and public interest, it was acceptable, and indeed desirable, that they be made by a public official, accountable to Parliament. Although the Secretary of State was not an independent and impartial tribunal, he (or rather, his department’s decision-making process) offered a number of procedural safeguards, such as an inspector’s inquiry with the opportunity for interested parties to be heard, and these safeguards, together with the availability of judicial review, were sufficient to meet the requirements of Art. 6.

[35]In Tsfayo v UK

(2009) 48 EHRR 18

, a local authority had refused the applicant’s claim for the renewal of council tax benefit on the basis that she had not shown “good cause” why she had not claimed the renewal of the benefit earlier. She appealed against the refusal of her claim to the local authority’s Housing Benefit and Council Tax Benefit Review Board. The issue on the appeal was a factual one: had she received the relevant correspondence concerning the renewal of her claim? The Review Board found that she had not. The Review Board was not “an independent and impartial tribunal” within the meaning of Art. 6, and accordingly the question for the European Court (it being accepted that the claimant’s civil rights were being determined) was whether the proceedings of the Review Board were “subject to sufficient control by a judicial body that has full jurisdiction and does provide the guarantees of Art. 6.1.” That turned on whether the High Court on a claim for judicial review provided such control. The European Court held that it did not. It said at [48]:

“Whilst the High Court had the power to quash the decision if it considered, inter alia, that … there was no evidence to support the [Review Board’s] factual findings, or that its findings were plainly untenable, or that the [Review Board] had misunderstood or been ignorant of an established and relevant fact, it did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant’s credibility. Thus, in this case, there was never the possibility that the central issue would be determined by a tribunal that was independent of one of the parties to the dispute.”

[36]In Tsfayo, the issue which the Review Board had had to decide was described by the European Court at [46] as “a simple question of fact”. That is to be contrasted with the decision which the Probation Service had to make when it came to consider what the conditions of Mr Ahmed’s licence should be. It could never have been disputed that some conditions were necessary to ensure that Mr Ahmed did not contact his wife. Even the judge at Mr Ahmed’s trial thought that that would be necessary. What the Probation Service had to do was to decide what conditions should be imposed to ensure that Mr Ahmed would not be able to contact his wife. That was very much a matter for the judgment of the Probation Service, and far different from the process involved in deciding a pure question of fact.

[37]In my opinion, the judgment call which the Probation Service had to make was much closer in its nature to decisions made by local housing authorities on the suitability of accommodation offered to homeless people which was considered by the House of Lords in Runa Begum v Tower Hamlets London Borough Council

[2003] 2 AC 430

. In Runa Begum, the claimant rejected the accommodation which had been offered to her. The local housing authority took the view that the accommodation had been suitable for her and that she had acted unreasonably in rejecting it. That decision was confirmed by one of the local housing authority’s officers on a review, and the claimant appealed to the county court against the decision on that review. One of the issues for the House of Lords was whether the quality of the review by the county court on such an appeal (when the county court’s jurisdiction in this area was similar to that of the High Court on claims for judicial review) was such as to meet the requirements of Art. 6. The House of Lords held that it did. Two of the factors which Lord Bingham regarded as significant at [9] was that the provision of accommodation to homeless people was “part of a far-reaching statutory scheme regulating the important social function of housing”, the administration of which was “very largely entrusted to local housing authorities”, and that the authority’s “factual findings will only be staging posts on the way to the much broader judgments which the authority had to make”. That applies to the present case. The conditions on which prisoners are released on licence after they have served half their sentence is entrusted to the Probation Service, whose officers have to make sometimes difficult judgments based on their experience and expertise on the way prisoners should be managed during the remainder of their sentence. It is the “classic example of administrative discretion”, which Lord Hoffman noted at [56] was one of the “key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient”. This reasoning was pithily expressed by Lord Millett at [105]:

“In my opinion the subject matter of the decision and the content of the dispute demanded that the decision be made by an administrative officer with experience of local housing conditions, subject to a proper degree of judicial control; and that a right of appeal to the court on law only was sufficient for this purpose.”

It is true that the third factor which Lord Bingham regarded as significant was the fact that there was a review of the original decision by a senior officer who had not been involved in the original decision and to whom representations could be made, but so too could representations be made by Mr Ahmed’s solicitors (and they were) when they sought the relaxation of the conditions of Mr Ahmed’s licence.

[38]I acknowledge that the Probation Service did not give Mr Ahmed an opportunity to comment on the conditions which it was proposing to impose on his licence before they were imposed. The absence of that opportunity was regarded in Wright as significant, though that case related to care workers who had been placed on a list of persons considered unsuitable to work with vulnerable adults, and as a result had also been placed on a list of persons considered unsuitable to work with children, but without an opportunity to be heard on the topic pending a full merits hearing before an independent and impartial tribunal. But there is one huge difference between the sort of judgment which had to be made when deciding what conditions would ensure that Mr Ahmed would not be able to contact his wife, and a decision about putting a care worker on the lists of the kind to which Wright related. The former required a judgment to be made on a topic on which there was little, if anything, which Mr Ahmed could say (apart from asserting that he had no intention of getting in touch with his wife, which would be treated as too self-serving to be of any use). The second required a decision to be made on a topic on which the care worker concerned could say a very great deal, and could comment in an informed and perhaps compelling way on the factors which had led to him being considered for inclusion on the lists in the first place. In the circumstances, I do not regard the fact that Mr Ahmed did not have an opportunity to comment on the proposed conditions before they were imposed as affecting the analysis at all.

[39]I acknowledge, of course, that it can take some time for claims for judicial review to get to court, but(a) that would apply to references to the Parole Board as well, and

(b) claims which are urgent can be considered quickly if a judge orders it. For these reasons, I have concluded that the present claim for judicial review provided Mr Ahmed with an opportunity to challenge the conditions of his licence by a process which complied with Art. 6. In the circumstances, it is not necessary for me to consider whether Mr Ahmed’s rights which would have been determined had he chosen to challenge the conditions of his licence on their merits amounted to his civil rights within the meaning of Art. 6.

Conclusion

[40]Since the question whether Art. 6 required a dedicated mechanism for a prisoner who wishes to challenge the conditions of the licence imposed on him when he is released from prison is an important one, I have decided to give Mr Ahmed permission to proceed with that part of his claim. However, in the light of this judgment, his claim must be dismissed in its entirety.

[41]I wish to spare the parties the trouble and expense of attending court when this judgment is handed down, and at present I see no reason why Mr Ahmed should not pay the defendants’ costs of the claim, to be the subject of a detailed assessment if not agreed, though since his claim was publicly funded (so there must be an assessment of his publicly funded costs), that order may not be enforced until there has been an assessment of his ability to pay those costs. If Mr Ahmed wishes me to make some other order for costs, his solicitors should notify my clerk of that within 14 days of the handing down of this judgment, and I will make such order for costs as I think is appropriate without a hearing on the basis of such written representations as are made. If Mr Ahmed wishes to apply for permission to appeal, his solicitors should notify my clerk of that within 14 days of the handing down of this judgment, and I will consider that application as well without a hearing. In the circumstances, I extend his time for filing any appellant’s notice to 35 days from the handing down of this judgment.