Hindawi v The Parole Board [2012] EWHC 3894 (Admin)

[2012] EWHC 3894 (Admin)Case No CO/3217/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand London WC2A 2LLDate Monday, 17 December 2012
B e f o r e:
MR JUSTICE BLAKE
Between
NEZAR HINDAWIClaimantTHE PAROLE BOARDDefendantTHE SECRETARY OF STATE FOR JUSTICEFirst Interested PartyTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTSecond Interested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company 165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr T Owen QC and Miss A MacDonald (instructed by Birnberg Pierce) appeared for ClaimantMr B Collins (instructed by Treasury Solicitor) appeared for DefendantMs K Gallafent (instructed by Treasury Solicitor) appeared for Interested PartiesMiss A MacDonald ( for Claimant) and Mr R Mehta (for the Interested Parties) appeared at the read out judgment
Judgment As Approved by the Court
[1]MR JUSTICE BLAKE: In 1986, the claimant in this application was sentenced on conviction to a term of 45 years' imprisonment for attempting to blow up an Israeli airliner, using his partner, then pregnant with his child, as the innocent dupe to convey explosives on board. This was a crime of great notoriety committed for political purposes. The claimant is a Jordanian citizen of Palestinian original. He is now 57 years of age and in poor health.[2]Under the sentencing regime applicable to him the claimant was eligible for parole after serving a third of the sentence and must be released after he has served two-thirds of his sentence, an event that will occur in June 2016 if he has not been released on licence before that. On completion of his sentence, the Secretary of State for the Home Department intends to deport him to Jordan pursuant to a deportation order made in 2000. The claimant does not object to that course. He has family in Jordan who have indicated that they will offer him a home on return. He did not appeal the making of the deportation order. He also has another brother who was convicted of terrorism offences at about the same time and now resides in Germany.[3]The law relating to the release on licence of foreign prisoners who face deportation has changed over the years. It is reviewed in the judgment of the Divisional Court in the case of R(Hindawi) v Secretary of State for the Home Department [2011] EWHC 830 (QB). In that decision, the Divisional Court quashed the Secretary of State's decision of November 2009 refusing to accept the decision of a Panel of the Parole Board dated October 2009 recommending the release of this claimant. The judicial member chairing that Panel was HHJ Thornton. At that stage, the Parole Board was limited to making recommendations only but as of 2 August 2010 section 145 of the Coroners and Justice Act 2009 came into force, making the decision of the Board binding on the Secretary of State. Following the Divisional Court decision, a new Panel of the Parole Board considered this claimant's case for release in the autumn of 2011. On this occasion, the Panel Chair was Mr Justice Butterfield (as he then was). The Panel reached its decision on 29 December 2011 (check date), when it decided not to order the claimant's release.[4]From the extensive papers before the Board, and now before this court, five features should be mentioned by way of introduction to the Board's decision.[5]First, the claimant was diagnosed as having post traumatic stress disorder arising from his early experiences. He had an aversion to psychologists and there was medical advice that he should not be interviewed by such people. As the previous Panel noted in 2009, this made the assessment of risk in his case uniquely problematic.[6]Second, the prison authorities recognised that there was no course or one-to-one offending programme that could be provided to him and his PTSD could preclude his demonstration levels of insight, remorse or victim empathy that would usually be looked for in risk assessment.[7]Third, the Panel had a copy of a report of Ms Lloyd before it dated 7 July 2010. She is a psychologist employed in the Extremist Team of the Ministry of Justice National Offender Management Service ("NOMS"). In that report she recounted an interview she had had with the claimant in 2008 when she was trying to learn how many people in a similar position engaged or became disengaged from extremist violence. At the time of this interview she was not aware of the diagnosis of PTSD and the medical advice that this claimant should not be interviewed by psychologists. She noted in her report as follows:
"The three hours I spent with him were filled by him venting at me in an angry rage, which effectively prevented any dialogue. He saw me as a representative of a corrupt self-serving system and lectured me at length on how one person's terrorist is another person's freedom fighter. I understand from reports that he has behaved this way with others. As a result, for the past two years Mr Hindawi has been for me the benchmark for an extremist who remains staunch after twenty-two years of imprisonment. However, the extra information contained in his PB Rec and my greater knowledge now enables me to place this outburst in context ... In my view his outburst and his ambivalence about cooperating with the authorities are likely to be due to the frustration he experiences on two fronts. Firstly, his own testimony is seen as inherently unreliable because of his status as an extremist offender and whatever he says can be accepted or not depending on the position of the person making the assessment, which from his perspective renders his cooperation futile and places him in a position in which he cannot help himself. Secondly, I believe that he is angry with himself for placing himself in this position. I think it is quite likely that, as he has said, he now recognises that what he planned to do is heinous and is relieved that he was thwarted... "
The written report concludes with the following assessment:
"Mr H will always remain sympathetic to the Palestinian cause, which in itself is not a cause for concern. It is unrealistic therefore to look for signs of complete disengagement, but this does not mean that we cannot make a judgment about the likelihood of desistance. In my view there has been a reduction in the factors associated with a readiness to offend, which together with decreased capability makes it unlikely that Mr H will engage again in violence. I think therefore that it would be both appropriate and compassionate at this review to grant Mr H parole."
[8]The fourth factor was that information had been communicated to those responsible for assessing the claimant's home circumstances that his remaining family in Jordan would not be willing to be interviewed about their circumstances.[9]Fifth, the Panel also had a report before it from the claimant's offender manager, a probation officer, Ms Clarke. That report was dated 9 April 2010. Paragraph 9 includes the following observations:
"Mr Hindawi's risk assessment centres around his potential to become politically active in the future and involve himself with groups who are involved in politically motivated terrorist activity... His risk can only ultimately be tested when he is released into the community. He will on release be deported to Jordan. In the unlikely event that he is released in England he will be subject to Mappa arrangements and a parole licence and would be subject to a robust case risk management plan."
The report continues at paragraph 11:
"The risk posed by Mr Hindawi would be due to future involvement in politically motivated terrorist activity. Mr Hindawi was involved with the PLO from the age of 12yrs and committed the index offence when he was 32yrs old. He was also involved with the Jordanian Revolutionary Movement. Should he become involved with any pro-Palestinian or anti-Israeli group in the future then the risk will increase significantly."
The final recommendation of the offender manager in thereport was given at paragraph 12 in the following terms:
"As stated in my previous report I am unable to provide the Parole Board with a viable risk management plan in Mr Hindawi's home country of Jordan. I am therefore unable to confirm how Mr Hindawi's risk will be managed following deportation and I am therefore not in a position to make a positive recommendation for release."
[10]Both Ms Lloyd and Ms Clarke were among the live witnesses heard by the Panel in the hearing in autumn 2011. In respect of Miss Clarke's evidence, the Panel summarised her overall assessment in the following terms:
"However, she identifies the risk that once in Jordan you may again become politically active and involve yourselves with groups who are themselves engaged in politically motivated terrorist activity. Ms Clarke does not envisage your taking part physically in acts of terrorism, but has in mind the possibility of you encouraging others, perhaps making speeches to that end or giving interviews supporting terrorist activities. This risk factor was to Ms Clarke the sticking point. She thought in those circumstances it was very difficult to support release: the index offence was so serious and the potential consequences of any repetition so devastating that there had to be some clear information about monitoring of your behaviour and activities in Jordan."
[11]The Panel's own conclusion on the question of risk, in the light of all the material that was before them, was set out in paragraphs 10.1 through to 10.5 of its determination:
"10.1 If you were to be released to live in the United Kingdom the Panel considers that your risk of committing further offences during the 4½ years of your licence period would be manageable. However the question for the Panel is whether if you are deported to Jordan the risk you pose of committing any further offence that might cause serious harm during that 4½ year period is at an acceptable level. On the balance of probabilities the Panel finds that you would not be subject to monitoring or surveillance. There would be no checks on what you were doing, with whom you were associating or how you were behaving. 10.2 You are an intelligent, articulate man with extreme political views. You were trained as a journalist and appreciate the power of words and images. You are by no means a broken man. Despite your physical disabilities, even in the course of the hearings and after 25 years in prison your passion and beliefs about the wrongs of your situation and that of the Palestinians were clearly apparent. The Panel has no confidence that if released you would be able to control that passion. The Panel considers that if you were given the opportunity you would be only too ready to give voice to your beliefs to any audience to you, whether on TV or radio or the press and in so doing might encourage acts of terrorism. In this respect the Panel has in mind the evidence of your behaviour when interviewed by Ms Lloyd and indeed flashes of such behaviour in your evidence. There has been no testing of your assertion that you would not react in that way nor can there be in the light of your PTSD, so that the Panel are simply reliant on your own untested evidence, about which the Panel has considerable reservations. 10.3 Your evidence about your plans on return to Jordan is, in the view of the Panel, unsatisfactory. The Panel accepts that there may be cultural reasons why your family is not prepared to co-operate with any assessment of the suitability of the proposed living arrangements. That said, your plans in the judgment of the panel lack realism and may well not be achieved. If that were to happen - and in the absence of positive assessments of the arrangements there is every likelihood that such will be the case - then you may become unhappy, disappointed, stressed and angry. In such circumstances and given the volatility of the political situation in the region the probability of your succumbing to a return to encouragement of terrorism would clearly increase. 10.4 In determining you application for parole the Panel has considered all the matters set out in the Directions to the Parole Board referred to in Paragraph 1 of this letter. The Panel has considered your background, in particular your support for and involvement in terrorism from a young age, an involvement continuing on any view for many years. The nature and circumstances of the original offence and other offences at or about the same time clearly demonstrates a very substantial static risk. The comments of the sentencing judge and the Court of Appeal demonstrates the utmost gravity of what you did. The Panel accepts that there is now no risk to any victim of the index offence but concludes that there does remain an unacceptable risk to persons outside the jurisdiction who might be harmed by acts of terrorism inspired in part by your acts of encouragement. Your attitude and behaviour in custody has in recent years been acceptable, as has your attitude to other inmates though you have made little if any positive contributions to prison life. You have taken no steps to address offending, though of course the Panel acknowledges that this is not your fault in any way. The Panel further has taken into consideration your PTSD and the representations made on your behalf. 10.5 In determining your application the Panel must focus primarily on the need to protect the public, whether in the United Kingdom or elsewhere, from serious harm and the prevention of further offending. In your case there is a massive static risk. To direct your release before the expiration of your sentence on parole to be deported to Jordan requires the Parole Board to be satisfied that the risk of your committing an offence that might cause serious harm during the time you would otherwise be in custody is acceptable. The period of time involved in your case is 4½ years. In all the circumstances and in particular the Panel's finding that on the balance of probabilities you would not be subject to monitoring or surveillance, there would be no checks on what you were doing, with whom you were associating or how you were behaving, the Panel was not satisfied that the risk of future involvement with an extremist group leading to further terrorist offending was reduced to an acceptable level and could be safely managed over such a lengthy period. In those circumstances parole is refused."
[12]Mr Owen QC, who appears for the claimant, told the court that this decision of the Board was an unusual one. It was the first time he was aware of a case where the Board had found that a person could be released on licence with minimal risk of harm to the public if released in the United Kingdom but represented an unacceptable risk of harm to the public if removed from the United Kingdom under the deportation order straight away from the criminal sentence to Jordan.[13]It is common ground between the parties that risk presented by the claimant to any person includes risk to those who are outside the jurisdiction. This is made clear in express terms by directions to the Board made pursuant to the Criminal Justice Act 1991 section 32(4) and appendix 7 paragraph 3D to PSO 6000 chapter 9. There is authority to the same effect in the decision of the Divisional Court in R v Parole Board ex parte White [1994] TLR (20 December 1994). In that case, the court was considering the position of a prisoner serving a discretionary life sentence for the manslaughter by battery of his girlfriend. He was to be deported to Jamaica on completion of his sentence.

(b) of the Criminal Justice Act 1991 whether:

"It is no long necessary for the protection of the public that the prisoner should be confined."
It found that the prisoner continued to represent a danger to women anywhere in the world. The prisoner submitted that "the public" should be narrowly construed to mean those in the United Kingdom and his subordinate submission was that he would not pose a risk to such women as he would be deported to Jamaica. His submissions were rejected and a broad meaning was given to the words "the public". Butler-Sloss LJ pointed out the responsibilities of the Parole Board should not be confined specifically to the public in the United Kingdom. The decision in White was quoted with approval by Lord Bingham of Cornhill in R(Clift) v Secretary of State for the Home Department [2006] UKHL 54 (reported at [2007] 1 AC 484 37). In that same case, the House of Lords concluded that the previous practice whereby prisoners facing deportation were not eligible for parole was disapproved. This was held to amount to unlawful discrimination between the treatment of a foreign and domestic prisoner otherwise in the same situation.[14]At the hearing before the Parole Board the claimant's case was a simple one: that he no longer represented a risk to the public anywhere in the world. He invited the court to follow the decision of the previous Panel made in 2009. In essence, his case emphasised the following features:(i) He had significantly changed his attitude to his offence during the term of his sentence.(ii) He opposed violence and terrorist acts connected with the Palestinian cause.(iii) He would be returning to Jordan and abide by its laws.(iv) The Jordanian State has a functioning system of intelligence and criminal law enforcement.(v) As the previous Panel had found, his activities would be monitored and subject to acts of oppression if he were considered to be a threat to Jordan. Mr Owen submitted to this court that it had never occurred to the claimant or his team that the Board would find the claimant a risk in Jordan but not in the United Kingdom.[15]Following the decision of the Board to refuse to direct his release, his solicitors wrote on 4 January 2012 asking the Board to reopen its determination to consider other options that had not previously been canvassed. The Board declined to do so and, accordingly, this present application for judicial review was lodged in March 2012.[16]In the application as lodged there were five grounds of claim, which I summarise as follow. Ground 1: the Panel's conclusions about residual risk represented by the claimant's extreme political views were irrational and not open to it on the evidence before it. Ground 2: the Panel acted unfairly in not affording an opportunity for the claimant to address residual risk in Jordan. Ground 3: the Panel drew an irrational distinction between monitoring of the residual risk in the United Kingdom by the operation of the licence conditions and absence of monitoring in Jordan. Ground 4: the Panel failed to consider that in the light of its finding the proper course was for the Board to direct the claimant's release in the United Kingdom subject to licence conditions. Ground 5: the Panel's analysis of the evidence relating to monitoring capacity in Jordan was irrational.[17]Permission was refused by Lloyd-Jones J (as he then was) on 26 April 2012. The claimant renewed the application at an oral hearing. On 10 August 2012, Silber J refused permission on grounds 1 and 2 but allowed it on grounds 3, 4 and 5. The grounds on which permission was refused were not the subject of an appeal and so at this hearing the rationality of the Panel's conclusion as to residual risk cannot be impugned. The issues live before me in this judicial review application are therefore the assessment of monitoring capacity in Jordan; whether the distinction between Jordan and the UK was rational; and whether in the light of its findings the Panel should have considered release in the United Kingdom as an option, although this had never been canvassed at the hearing between various parties. In the context of this last issue, the precise question that Silber J considered arguable is uncertain. It is agreed that at the oral hearing the claimant identified the core issue as ‘whether there was a power in the Board to release him in the United Kingdom?’ There appeared to be a difference between the Board and the Secretary of State for the Home Department in its written submissions in the acknowledgement of service. I will consider this ground of challenge first. Release in the United Kingdom[18]By the time of this hearing it was common ground between all parties that in law it is possible for the Parole Board to recommend the release on licence of a person who faces deportation. But it is also common ground that the exercise of such a power would be subject to the Board's assessment that the prisoner did not pose other than a minimal risk of harm to the public anywhere in the world.[19]In the light of the Board's unchallengeable findings that the claimant's residual political extremism would be contained in the United Kingdom but would not in Jordan, there was a risk therefore that the claimant would incite act of terrorism by others in Jordan and thus pose a risk of harm to others. Once this risk is added to the unchallenged decision of the Secretary of State that the claimant would be deported to Jordan promptly on release, I conclude that the Board was incapable of exercising its power of directing release in this case.[20]I recognise that it may be possible to argue, if a similar problems arises in the future, that the Secretary of State for the Home Department should defer implementation of deportation for a defined period of release under licence in the United Kingdom to take effect. The claimant might be able to deploy one or more of the following arguments in support of such a proposition:-(i) It is unfair to treat him differently from a person in otherwise the same situation who cannot be deported either immediately for whatever reason or at all.(ii) It is a disproportionate interference with the claimant's right to liberty to continue to detain him when, if deportation was deferred for the period, he could be released on licence without risk to the public.(iii) It is inefficient use of scare prison resources to continue to detain a person who could be released without risk on stringent licence conditions.(iv) Insofar as supervision on licence contributes to a prisoner's further rehabilitation in the community, it is irrational and discriminatory to deprive the claimant of the benefit of such rehabilitation before he is finally removed from the United Kingdom pursuant to the deportation order by June 2013.[21]However, none of these arguments were before the Board in autumn 2011.[22]In a response to a direction from the Panel that it may want to consider the position if deportation were referred, the Secretary of State for the Home Department responded on 12 October 2011 in the following terms:
"The Secretary of State can confirm that if the panel decided to release Mr Hindawi he will be detained under immigration procedures until such time as travel arrangements can be made and he can be deported to Jordan. Details of this are contained in the UKBA proforma at pages U259 - U261 of the dossier. Mr Hindawi is not opposing deportation. UKBA have the necessary documentation to facilitate his departure, other than an emergency travel document which can be issued by UKBA staff at the prison. There is no reason why he cannot be safely removed to Jordan. We have today, confirmed with the UKBA that these details are correct."
Such a position was not challenged by the claimant before the Parole Board, indeed he agreed to it. The terms of the January 2012 letter did not raise a late challenge to those decisions or seek in terms to reopen them. The essence of that letter was in the following terms:
"Given the Panel's findings, and the live evidence at the hearing on 7th December 2011, it would plainly be possible for the Secretary of State, and/or the Board, to request that certain restrictions be placed upon Mr Hindawi, if this is considered to be crucial, and for the Jordanian Government's response to be communicated, and for technical release to be directed with release to take place pending the formulation of arrangements considered to be suitable."
The claimant was thus seeking a further opportunity to adduce evidence about either monitoring or arrangements in Jordan but as the Board explained in its response, he had had an ample opportunity to do that previously.[23]In these circumstances, I reject the claimant's contention that there was a duty to consider release independent of the deportation decision. In this context, deportation is not an unrelated and incidental administrative decision, it would very much be the means by which the risk which was perceived to exist by the Board would be given effect in Jordan.[24]The Board and the Secretary of State for the Home Department have different functions. Whilst the Board is concerned with the risk to the public generally of release, the Secretary of State for the Home Department is concerned with the public interest in the United Kingdom of removing dangerous offenders where it is possible and proportionate to do so. The threat an offender presents to the health and safety of the United Kingdom is very much a reason to deport him or her and is recognised to be a legitimate aim justifying interference with the right to respect for private or family life under Article 8 of the European Convention on Human Rights.[25]Although I invited Ms Gallafent, who appeared in this hearing for both the Secretary of State for the Home Department and the Secretary of State for Justice, to indicate what response the Home Secretary would make to a request to defer deportation of this claimant, to relieve the prison population and to give him the benefit of continuing his rehabilitation, she declined to make submissions on what was a speculative question that did not arise for challenge. In the factual context of the present proceedings, I conclude that that was a course open to her. Whether that will remain the case in the future is another matter.[26]I now turn to consider grounds 3 and 5 of the original grounds of challenge together. Assessment of monitoring in Jordan[27]The question whether the Jordanian authorities would be interested in the claimant on return to Jordan was a matter previous considered by the earlier Panel in 2009. That Panel had before it some documentary evidence from the Foreign and Commonwealth Office based on contact with the Jordanian authorities in the event of the claimant being returned. At that stage, the advice given to the Panel was that it was most likely that the Jordanians would consider that the claimant had served his sentence and was unlikely to face further charges in Jordan as a result of his political activities and beliefs.[28]The Panel reached its conclusions in 2009 in the following terms:
"Thirdly, and most importantly, Mr Hindawi will be subject to monitoring and surveillance by the Jordanian authorities. Pursuant to the arrangements set out in the (Memorandum of Understanding) the FCO 'may consider it appropriate to discuss [Mr Hindawi's] case with the Jordanian authorities'. Such discussions took place between the UK Government and the Jordanians in relation to the case whose details were provided to the panel. The discussions were dealt with in the witness statement of the Director of Defence and Strategic Threats at the FCO lodged in judicial review proceedings in that case which was copied to the panel with the permission of the Secretary of State. The evidence available to the panel is that if Mr Hindawi is deported to Jordan after such discussions have taken place, he will then be subject to surveillance by the Jordanian authorities."
That conclusion was not binding on the subsequent Panel but might be considered a rational starting point for subsequent consideration of the issue.[29]Monitoring in Jordan was clearly a major concern of the 2011 Panel and indeed of all those concerned with the assessment of the future risk, if any, posed by this claimant. On 16 August 2011, the Chair of the Panel issued the following directions:
"1. It is of obvious importance for the Panel to have the fullest available information on the likely extent of controls, monitoring, surveillance and supervision of Mr Hindawi if he were released on parole and deported to Jordan. The Divisional Court at Paragraph 106 of its judgment noted: '...it was well within the power of the Secretary of State to obtain much more information as to what could be done by way of surveillance and supervision in Jordan.' It is accordingly directed as follows: “Following consultation with the Jordanian Authorities the Secretary of State must provide details of the supervision, monitoring, controls and surveillance that would be deployed in respect of Mr Hindawi if he were to be released to the Jordanian jurisdiction. The Secretary of State must be in a position to offer a view as to whether those measures are, in his opinion, sufficiently robust to manage any perceived risk. Further, the Secretary of State must inform the hearing whether Mr Hindawi is 'a person of interest to the Jordanian government' and if so, the meaning and relevance of such a description."
[30]On 10 October 2007, further directions were issued, including the following:
"The Report dated 29 September 2011 does not comply with the direction. The Panel does not expect to be provided with sensitive details relating to the methods of security. However, the Panel does expect the Secretary of State to offer a reasoned and considered assessment of the likely level of supervision, monitoring, controls and surveillance if Mr Hindawi was deported to Jordan and in particular whether those measures are, in his opinion, sufficiently robust to manage any perceived risk. The Report is conspicuously silent on those matters. If it be the case that the Secretary of State considers that the risk is so minimal that no measures of supervision are required he should make that clear unequivocally. If he considers that some measure of supervision etc is required, then what level does he consider appropriate and what is his assessment of the likelihood of such measures being implemented in Jordan? What, in the assessment of the Secretary of State, is the likelihood of Mr Hindawi being permitted to leave Jordan and what, if any, additional risks would arise were he permitted to do so?"
[31]The Panel had received reports from Basil Eastwood, a former Ambassador, and Dr Alan George, an expert on Middle Eastern affairs. On 18 October 2011, the Panel summarised the state of the information before them. Mr Eastwood is quoted as saying:
"I have no reason to believe however that the role and capability of the Jordanian security services will have been impaired and I am confident that they will for their own reasons be prepared to keep a close eye on Hindawi given his Syrian connections and Amman's traditional distrust of Damascus."
Dr George, in a material part of his report of 27 March 2009, was quoted as saying:
"If Mr Hindawi was deported to Jordan he would be subjected to close monitoring by the Jordanian security authorities which are efficient and which collaborate closely with their Israeli, British and American counterparts."
The panel noted his update of 4 September 2001:
"It remains my firm opinion that if Mr Hindawi was deported to Jordan he would be subjected to close monitoring by the Jordanian security authorities."
[32]It then further adjourned the hearing and issued further directions to examine this question and in order to see whether the assessments that it had, or were to be provided with, were accepted by both the Foreign and Commonwealth Office and the Secretary of State for the Home Department. Subsequently, the Panel accepted that Mr Eastwood could add little further data but it did require a witness from the counter-terrorism department of the FCO, and was somewhat dismayed initially when the Secretary of State for the Home Department offered instead a former Ambassador, Mr Anthony Layden, to attend the hearing on 7 December 2011. In the event, the Panel had the benefit of a detailed witness statement from Mr Layden, who was part of the UK Government's task force concerned with deportation with assurances of certain individuals whose presence is considered to be contrary to the public good. Amongst the Governments that Mr Layden had dealt with is Jordan. That was in the context of the proposed return of Abu Qatada, a high profile individual whose presence was a concern to the Secretary of State.[33]It is difficult to imagine anyone more likely to be better placed to give the Panel assistance on how the Jordanians were likely to consider extremists on their return to Jordan. However, there were clearly real difficulties in assessing this. In his witness statement, he said this:
"What will happen to Mr Hindawi on return to Jordan? I should repeat at this point that neither I nor anyone else in the FCO knows how the Jordanian authorities will react to Mr Hindawi's return. He has been out of the country for 25 years and for most of that time they will not have been giving his case any consideration. They have yet to respond to requests for information on the subject of what measures they might take following his return. The British Embassy in Amman understand that the question is still under discussion between various parts of the Jordanian governmental system. I find this highly credible (having myself discussed with the Jordanian authorities the implications of the planned return of Abu Qatada). The question is fraught with difficulty for them. Mr Hindawi's attempted act of violence was directed against an Israeli passenger aircraft. Jordan has for many years had an official modus vivendi with Israel, but this is not universally popular in Jordan. There are sections of Jordanian society which still express support for Abu Qatada, despite the fact that he has been found responsible for attacks which killed numbers of Jordanian citizens. The attitude of these sections of society towards Mt Hindawi could range from indifference to vociferous support; for the Jordanian authorities, deciding on how best to handle his return is, to say the least, a thorny question. It is indeed perfectly possible that the matter is, as the Embassy have reported, 'still under discussion'. (It is also possible that the Jordanian authorities have not responded to our questions because they take the view that what happens to one of their citizens on their territory is their business alone, and they consider it inappropriate for us, in addition to imposing this difficult situation on them, to ply them with questions on what they are going to do about it. On balance I think this interpretation less likely: there has been no hint of such feelings in the exchanges that have taken place, and the Jordanian response to our approaches on DWA cases has been a co-operative one.) The fact is that only the Jordanians themselves could speak authoritatively on what will happen to Mr Hindawi; they have not done so; what follows is therefore no more than informed speculation, which I offer the Panel on the basis that it may be just a little more helpful than nothing. ... The key judgment to be made by the GID, therefore, will be: does Nezar Hindawi pose a threat to the security of Jordan? What happens to him thereafter will depend crucially on the view they take on this. That in turn will depend on what he says to them, and what impression he makes on them by his demeanour. My working hypothesis would be that, if he has satisfied the Parole Board more than once that he no longer poses a threat to the security of the United Kingdom, the Jordanian authorities will conclude that he does not pose a threat to Jordan. The Jordanian authorities might also want to assess whether he might wish to initiate further action against Israel, his original target. Again for the same reasons, my working hypothesis would be that they would conclude that he would not. That being so, it is in my opinion unlikely that the Jordanian authorities would keep Mr Hindawi under surveillance. In these difficult times there will be many other people in Jordan whom they do assess to pose security threats, and while they do indeed, as other witnesses have said, have efficient security and intelligence services at their disposal, their resources are limited, and under pressure."
There is no transcript or agreed note of the evidence given at the hearing but in this application Mr Owen's skeleton argument, apparently drawing from his solicitor's note of evidence, quoted passages of the oral evidence, the accuracy of which was not disputed. It is sufficient to note that they include the following:
"My evidence is that he may be monitored but the FCO can't say the Jordanians would do it and it is unlikely that they will."
A little later on in response to questioning:
"There has not been any risk assessment [of Mr Hindawi] by the FCO. It is not a matter for the FCO. There haven't been any relevant intercepts or relevant information... If we don't perceive a threat, they [the Jordanians] won't either."
[34]The skeleton argument indicates that a member of the Panel asked Mr Layden the following question:
"If Jordan doesn't do anything it's because they don't believe him to pose a risk?"
To which Mr Layden is recorded as replying:
"Yes ... if we have information that someone is a threat we have the obligation to share that with Jordan."
The follow-up question was:
"We can take the absence of information as an indication that the UK doesn't consider him a threat?"
Mr Layden agreed and added:
"It would be our duty, if we thought he posed a threat to the UK or Israel we would have informed the Jordanians. We haven't done so... The Home Office is advised by the Security Services to determine if someone poses a threat. ."
[35]On this issue the Panel's conclusions are to be found at paragraphs 9.8 and 9.10 of its decision:
"9.8 The Secretary of State declined, despite the directions given by the chair of the Panel, to offer any view on any of the issues to which the directions related. To the surprise and disappointment of the panel the Secretary of State was not prepared to comment on the evidence of Mr Layden or even to offer a view on the existing risk you pose. The Secretary of State simply repeated the submissions made to the Administrative Court and had nothing to add. The Panel found that response unhelpful and defensive. It is of course for the Parole Board to determine the application but the Secretary of State is a party to the proceedings and has available to him or her the whole panoply of government. The Secretary of State chose to adopt a position which the Panel regarded as cynical, political in origin, very unhelpful in practice and at odds with the whole purpose of involving the Secretary of State in the parole process. ... 9.10 From all that evidence the Panel is satisfied that if you are released on parole and deported to Jordan you are likely on arrival there to be questioned by the security services. There are undoubtedly available to the Jordanian authorities powers of detention, monitoring and surveillance which they may use in appropriate circumstances. However, the panel concludes on all the evidence available that such powers are unlikely to be deployed in your case if the Parole Board has not determined that the risk you pose of committing any further offence that might cause serious harm is at an acceptable level and such as to justify release."
[36]Before determining the challenge, a further preliminary observation can be made. The Panel's frustration with the perceived lack of assistance it had received from the Secretary of State may, in fairness, be a little wide of the mark. As explained in the witness statement of Ms Gambling dated 16 October 2012 placed before this court, the Secretary of State had gone to considerable trouble to ensure that the Panel had the benefit of the person most likely to have the relevant information. The Home Secretary, having supplied the witness, was not likely to disagree with his evidence, and the weight to be attached to it was for the Panel and not the Secretary of State. For the reasons given in the evidence it was not possible to give a more certain answer to their questions. Further, Ms Gambling explains that since 2011 and the new arrangements for the assessment of risk and the pressure on resources for the Secretary of State she no longer offers a view on risk assessment independent of the assessments in the case papers.[37]Mr Owen, for the claimant, does not criticise the response of the Secretary of State to the Board's directions and disassociates himself from the Panel's comments. His complaint is that Mr Layden, having answered the Panel's questions, the Panel failed to act on his evidence.[38]I now set out my conclusions. A number of general observations can be made. First, it is obvious that the monitoring of a prisoner by NOMS pursuant to licence conditions imposed for the duration of the licence term is not the same as intelligence based monitoring of a notorious criminal with a view to ascertaining whether he was acting in a way imperilling the public order or national security of a State. However, that distinction can rarely be conclusive in the case of a foreign prisoner seeking parole, as NOMS cannot act overseas and has no effective power of recall of someone who has left the jurisdiction. If that fact alone prevented release on licence of foreign prisoners, that would risk a return in practice to the situation disapproved of by the House of Lords as a matter of law, namely that foreign prisoners facing removal could not obtain parole.[39]Second, although there was some supporting evidence submitted on behalf of the claimant from Mr Diab, a Jordanian lawyer, providing the criminal law context, that material did not add much to how the Jordanian authorities would in fact behave toward Mr Hindawi, which was the issue of concern for the Board. The evidence of Mr Diab did not require any extensive consideration in the Panel's decision. Taking the evidence of Mr Layden, Mr George and Mr Diab together, there was ample evidence that the Jordanian authorities had the capacity to undertake monitoring and surveillance and measures in response to a perceived threat to their own security. The question was whether they would exercise their powers.[40]Third, I reject Mr Owen's criticism of the Panel's decision at paragraphs 9.6 and 9.7 that it only recited Mr Layden's written evidence and not his answers in oral evidence. It seems to me that the passages in the oral evidence which I have cited are sufficiently reflected in the summary given in those paragraphs of the Panel's decision.[41]Fourth, whilst it is difficult to make an assessment of the rationality of the Panel's conclusion on the monitoring issue without seeing a complete transcript of the oral evidence, in my judgment, the Panel was entitled to conclude that the effect of Mr Layden's evidence was that if the claimant was not considered a risk to security by the United Kingdom Government on deportation, he was not likely to be considered a risk by the Jordanian Government. He would thus not subjected to repressive measures once an interview at the border had been completed to the satisfaction of the Jordanian security services.[42]I then reach the question that has caused me concern. The rather troubling paradox is that if neither the United Kingdom Government nor the Jordanian Government considered the claimant to be a risk and as a consequence there would be no monitoring in place, in the Panel's assessment for those reasons the claimant presented a risk of a spontaneous inflammatory outburst, perhaps in the public media, by inciting terrorism, to which others may respondent with actual violence. He was thus considered to be a risk to the public of Jordan because neither the United Kingdom nor the Jordanian Government considered him to be a risk to others.[43]The assessment of risk of assumption of politically motivated incitement to terrorist violence is a difficult and sensitive one. It is clearly not enough that the claimant holds strong views at the perceived injustice of the plight of the Palestinians, many people do and such views are a perfectly respectable opinion to hold for anyone concerned with the affairs of the Middle East, but the Panel must have been aware of Ms Lloyd's comment to the same effect, quoted earlier in this judgment, and I do not consider that this experienced Panel could be said to have confused expressing political views and incitement to commit acts of terrorism. It is further not enough that the medical assessment of the claimant that his experiences gave him PTSD that makes interface with psychologists difficult to suggest that he was a volatile and unpredictable individual capable of saying or doing anything unless restrained.[44]Nevertheless, in my judgment, it was not irrational for the Panel to conclude that, given the risks of resumption of extremist views in the particularly tense perspective of a State neighbouring Israel at a time of distressing and emotive events undermining the lives and liberty of both Israelis and Palestinians, that the claimant would present a greater risk of expression of views that would be considered inflammatory in Jordan rather than the United Kingdom. I acknowledge also the Panel's expertise in risk assessment and the combination of factors in this case that makes that task particularly difficulty.[45]In these circumstances, the central issue for the resolution of this issue in the case was the assessment of the hypothesis that the Panel was eventually to base its decision on. If the claimant were to respond to events in the Middle East on return to Jordan by associating with extremists or expressing extremist views (i.e. incitement to terrorist violence) in public or private, how would then Jordan respond? Some States in the Middle East might be undeterred by such expressions but what about the authorities in Jordan? There is no evidence that Jordan fell into the category of State that would be indifferent to expressions of such incitement to violence. Indeed, the tenor of Mr Layden's evidence was that Jordan and the United Kingdom had similar security concerns and co-operated on this issue precisely because they shared a common perspective.[46]It seems to me that Mr Layden was never asked the question by anybody at the hearing what Jordan would do if, contrary to their initial assessment, it had reason to believe that the claimant was re-associating with extremists and was propagating violence that he has previously indicated he has renounced. It is difficult to understand why this was not explored at the hearing. Such indications as there are in the material before this court would suggest that Jordan might well regard an incitement to violence against Israel on its own territory and by its own citizens as undermining its stable relations with Israel and therefore its own security.[47]As Dr George's written report had stated, maintaining good relations with the UK, the US and Israel is certainly considered by the Jordanian authorities to be a priority in the national interest. If that is the position, it is indeed very difficult to imagine the claimant would either be afforded access to media or TV or State controlled press for dissemination of incitement to violence. However, the problem is we simply do not know because it was not explored at the hearing with Mr Layden or indeed anybody else, or there is no record of it before this court if it was. Since the Board conducts its own inquiry into what it considers the relevant factors are, it is primarily for it to pose the questions that it considers are necessary to explore the issues of risk as it sees them to be. It is certainly no excuse that it may have felt irritated by the response of the Secretary of State for the Home Department or had initially doubted Mr Layden's ability to answer their questions. I agree with the Home Secretary's assessment that he was the person best placed to assist with the view of the British Government and the FCO in particular.[48]The question then is whether this failure to inquire was such a want of procedural fairness that I should quash the Board's decision and require a fresh one to be taken. If this were the final assessment in the case or if this Panel's findings on this issue were likely to be binding or determinative in any future assessment then, subject to any further submissions that I might have heard from Mr Collins on behalf of the Board, I might well have concluded that fairness would require this decision to be set aside and remade.[49]However, I have concluded that I should not do so for the following reasons:(i) The claimant's case as pleaded by experienced leading counsel does not focus on procedural irregularity in failing to explore this question with the witness, but irrationality in failing to apply the answers in the overall conclusion. The Board has therefore not had the opportunity to respond to this concern of lack of due inquiry into this sub-issue.(ii) I reject the claimant's pleaded case that Mr Layden's answers meant that the Board was bound to find that the claimant would be monitored on return to Jordan. The contrary is the case. Because he would probably not be perceived of as a risk, he would probably not be closely monitored thereafter after entry.(iii) The importance of monitoring was plain to the claimant throughout the proceedings and he knew that the case of other then residual risk was the very risk assessment made my his offender manager, Ms Clarke, of spontaneous re-association with terrorist ideology and expression. I can see no reason why the claimant of his own motion, through his advocates, did not explore the question with Mr Layden and at least inquire whether Mr Layden agreed with Dr George's assessment that preserving good relations with Israel was a matter of concern to the Jordanians for the reasons possibly why they would act.(iv) A new hearing before a fresh Panel on whether the claimant can be released on licence is imminent. It will consider the question again. As is apparent from the history of this case, previous decisions of differently constituted Panels do not bind subsequent Panels. The next Panel will therefore be free to explore for itself the question of what the response of the Jordanian authorities would be if the claimant was to re-associate with Palestinian terrorists or those who supported terrorist action against Israel. If anyone thought it was useful for them to see it, it could indeed have my remarks in this judgment before them to consider as well.(v) It seems to me that the assessment of the reaction for the Jordanians to any expressions of incitement of violence would be important not merely to the monitoring question at the heart of the present application but also to the question of whether the claimant is likely to lose self-control on return and revert to terrorist incitement despite his present statement of opinions. This question is not live in this application as permission was refused on this ground but if the available information is that the Jordanians would respond to repressive measures then this itself may deter the claimant from so expressing himself. I do not accept Mr Collins' submission that the Jordanian evidence suggests that nothing would be done until the damage in the form of risk to the public had been done.[50]For all these reasons, I have concluded therefore, notwithstanding my concerns that relevant information was not before the Board and might have been, that its overall conclusions were rational and lawful on the information before it and, accordingly, this application fails.[51]Does anything else arise?[52]MISS MACDONALD: My Lord, no. We have discussed by email, counsel in the case previously, what we would do by way of order. Obviously, we did not know the result but what we propose was that we would reflect on matters and that issues of permission to appeal and costs, if necessary, be dealt with by an agreed timetable in writing in early January.[53]MR JUSTICE BLAKE: Thank you very much for that. I shall probably be around one building or another until Thursday lunchtime but not thereafter.[54]MISS MACDONALD: We will reflect on the judgment, we will provide a draft order to the associate setting out a timetable should any party wish to appeal.[55]MR JUSTICE BLAKE: I just had the impression from Mr Owen that we have another Parole Board hearing imminent but not with a date certain yet.[56]MISS MACDONALD: We do. There is no date set for that yet.[57]MR JUSTICE BLAKE: All right, so one is not rushing to get something out for that. I am reminded that if you are seeking to apply for permission to appeal, you should do it within 7 days of the hearing. You are asking me to extend time until some time in January, are you?[58]MISS MACDONALD: My Lord, yes. We have proposed some dates.

MR JUSTICE BLAKE: I think it is probably you who will be seeking permission to appeal.

[60]MISS MACDONALD: We can certainly do written submissions, if it is necessary, by Wednesday or Thursday this week.[61]MR JUSTICE BLAKE: It just seems to me that if there is some desire to get on a fresh hearing which will take place, that it would be undesirable for there to be a backlog for any length of time if you are seeking to go to the Court of Appeal. So if you are able to formulate something by Wednesday, this case will not be entirely departed from my mind by then.[62]MISS MACDONALD: I think the concern, my Lord, is twofold. One is that we will have to reflect on whether that is a sensible course of action, given your Lordship's comments, which will be before a future Panel. So that will take a little time.

MR JUSTICE BLAKE: I am sure you are very capable of reflecting.

[64]MISS MACDONALD: We are happy to provide submissions by this week, subject to Mr Owen's ability to consider it.[65]MR JUSTICE BLAKE: From a personal point of view, if it does not happen this week it until 11 January. I can do it this week if that is the preferred course.[66]MISS MACDONALD: I am in the position of having others ask for a timetable, which I resiling from. Let us say that we will provide them by this week.[67]MR JUSTICE BLAKE: If you can provide your written submissions on permission to appeal by 4.00 pm Wednesday.[68]MISS MACDONALD: Yes.[69]MR JUSTICE BLAKE: You are probably best getting them sent to my clerk and he can get them to me, then I do not need to extend time for you to seek permission to appeal.[70]MISS MACDONALD: We may though, if permission it refused, need to seek an extension for time to lodge.[71]MR JUSTICE BLAKE: That is what you do with the Court of Appeal. I think that would be this court dealt with. So if you can do that then I will at least retain the form to respond to that. Anything else can then be dealt with by agreement or written submissions. There is no urgency with the timetable.[72]MR MEHTA: If I may verify, any submissions from our side on the appeal, in light of the timing, if the submissions are sent in on Wednesday --

MR JUSTICE BLAKE: You want time to respond, do you?

[74]MR MEHTA: My Lord, yes.[75]MR JUSTICE BLAKE: I would imagine I am going to say no. I can probably imagine what your response would be. Are you going to be able to get them to me by 1.00 pm on Thursday?[76]MR MEHTA: So 4.00 pm on Wednesday would be the submissions of the claimant?[77]MR JUSTICE BLAKE: Yes. Well, you might be able to push it forward if you want to timetable a response. Can you do that by 1.00 pm on Wednesday, and 1.00 pm on Thursday?[78]MISS MACDONALD: I am sure we can.[79]MR JUSTICE BLAKE: Very well. It does not have to be extensive. I will just clarify the timetable. Counsel will make submissions as to costs in writing. You have not told me the date you are going to do that by, have you?[80]MISS MACDONALD: So that would be us in the first instance?[81]MR JUSTICE BLAKE: Well, on costs you either agree or you make submissions. I do not quite see why, costs, you cannot do it now, but apparently you have agreed not to and I appreciate we have not got all of the advocates here, so you are going to have to give me a date. When are you going to get your submissions in by?[82]MISS MACDONALD: I am happy to deal with costs now, the concern was that those who have had conduct of the case for the other party is not here.[83]MR JUSTICE BLAKE: I thought you said you had an agreement as to a timetable for costs but, just reflecting upon it, you have not told me what the timetable is that you have agreed.[84]MISS MACDONALD: The agreement as to timetable on cost has slightly gone by the wayside because the agreement was that the losing party would make submission on appeal by 16 January, and costs.[85]MR JUSTICE BLAKE: Well, you can make your submissions as to costs by 1.00 pm on Wednesday. Frankly, I think that is the wrong way round. By 1.00 pm on Wednesday there will be the losing claimant's submission on permission to appeal, and costs if so advised, to be lodged with my clerk, preferably by email; the defendant Board, or the interest party if they wish to, to respond by 1.00 pm on Thursday by the same means. I will try to ensure that you get a decision on both those matters before the end of the week.[86]MISS MACDONALD: Thank you.

Cited in 1 later judgment