Mehmet, R (on the application of) v London Probation Board

A lawful policy requiring exceptional circumstances before temporary overseas travel during post-release supervision sets a high threshold for judicial review. Whether circumstances are exceptional is principally a matter for the designated decision-maker. A disagreement about the weight given to relevant factors does not establish Wednesbury irrationality.

Article 8 is not automatically engaged by a refusal of permission to travel abroad. The claimant must establish a sufficiently serious impact on private or family life, or on employment where that impact is capable of engaging the Convention. Procedural fairness depends on the circumstances, including whether undisclosed information was adverse and material.

The claimant was released on licence after serving a lengthy sentence for serious offences. His licence required prior approval before travelling outside the United Kingdom, with permission to be granted only in exceptional circumstances.

He sought permission to make short business visits to Cyprus for his sister’s travel business. The London Probation Board refused the application under Probation Circular 4/2006. The claimant challenged the refusal on grounds of irrationality, infringement of Article 8, and procedural unfairness.

The central issues were whether the decision-maker had acted unfairly, whether Article 8 was engaged, and whether the refusal was irrational because irrelevant matters had been considered or relevant matters omitted.

1. Judicial review dismissed. The claim for judicial review was refused. There was no order for costs, save for detailed assessment of the claimant’s legally aided costs.
2. The failure to disclose the supervising probation officer’s email was an unfortunate lapse, but it caused no procedural unfairness. The email supported the application, and the claimant’s solicitors already knew that the supervising officer supported the proposed travel. The claimant could not convert the complaint into a failure to consider material matters by speculating that further information might have been sought.
3. Article 8 was not engaged on the evidence. Restrictions on employment can, in an appropriate case, engage Article 8, as illustrated by Sidabras v Lithuania [2006] 42 EHRR 6. That authority concerned a substantially wider employment restriction. Here, the impugned measure restricted overseas travel, and the evidence did not establish that it prevented the claimant obtaining any employment or materially affected his private or family life. The broader rehabilitative objective discussed in McCotter did not mean that refusal of permission to travel abroad, by itself, engaged Article 8.
4. The policy was lawful and required the applicant to demonstrate exceptional circumstances. Whether that threshold was met was pre-eminently a matter of judgment for the decision-maker. The review threshold was therefore very high: the claimant had to show that no rational Assistant Chief Probation Officer could have concluded that the circumstances were not exceptional.
5. The matters criticised by the claimant were relevant. It was legitimate to ask why the proposed employment could not be performed, at least partly, in the United Kingdom. It was also legitimate to consider the practical difficulty of supervising repeated short visits abroad and the risk that overseas travel would impede effective monitoring. The weight given to those matters was for the decision-maker.
6. The decision letter conducted a rational balance between the possible rehabilitative benefit of employment and the statutory aims of supervision, particularly public protection. The claimant’s disagreement with that balance, or the possibility that another officer might have reached a different conclusion, did not make the decision unlawful.

The judgment describes an earlier judicial review challenge which was compromised on the basis that the defendant would take a fresh decision. The present claim concerned the subsequent decision dated 16 May 2006. No appellate decision is stated.