A, R (on the application of) v National Probation Service

A probation service must make its own independent assessment of the risks posed by an offender after release. It is not bound by the Parole Board’s assessment, because the Board decides whether continued detention is necessary, whereas probation decides how risk should be managed in the community. Disclosure of a conviction engages Article 8 and must be necessary and proportionate. Disclosure to a private housing provider is not automatically disproportionate, but third-party disclosure is exceptional and requires a pressing need. A decision based on a general presumption in favour of disclosure, without an individual assessment balancing the offender’s rights and the risks, is unlawful.

The claimant, a life prisoner convicted of murdering his wife, was due for release. The Parole Board recommended release and imposed a residence condition, but did not require disclosure of his conviction to the manager of proposed sheltered accommodation.

The National Probation Service later assessed the accommodation as suitable only if the manager was informed of the conviction. The claimant sought judicial review, arguing that probation was bound by the Parole Board’s assessment and that disclosure was contrary to common law, Article 8 and the MAPPA guidance. The central issues were whether probation could make an independent risk assessment and whether the proposed disclosure was lawful and proportionate.

1. Independent functions. The claim succeeded to the extent that the disclosure decision was quashed. The Parole Board decides whether the risk requires continued confinement. The probation service has a distinct statutory duty to assess and manage risk after release. It was therefore entitled, and required, to make its own assessment of risk of harm. R v Secretary of State Home Department ex parte Harry [1998] 1 WLR 1737 did not require a different conclusion.
2. Disclosure and proportionality. Disclosure of previous convictions by a public authority engages Article 8. The interference must be necessary and proportionate. The common-law principle that disclosure requires a pressing need remained relevant, although review was wider where Convention rights were engaged. Disclosure to a private housing provider could in principle be proportionate. The recipient’s private status was a relevant difficulty, but it did not make disclosure unlawful in every case.
3. Confidentiality. The Data Protection Act 1998 could not itself be assumed to protect the information because it was uncertain whether the manager would record it within the statutory framework. Confidentiality could nevertheless be imposed or required, and obligations of confidence would be enforceable. The court accepted that a reputable organisation could be expected to respect confidentiality.
4. Unlawful starting point. The risk assessment was materially influenced by a stated presumption in favour of disclosure to accommodation providers. The assessment did not expressly address the claimant’s rights or balance the need for disclosure against the anticipated harm. The later multi-agency meeting did not reconsider the matter afresh and could not cure the error.
5. Relief and costs. The risk assessment decision and the subsequent confirmation were set aside. A blanket declaration that disclosure would be unlawful was refused. The probation service remained entitled to reconsider the matter, starting from the need for a pressing case and the exceptional nature of disclosure to third parties under the MAPPA guidance. The claimant was awarded his costs, subject to agreement or taxation.