Walker v Secretary of State for Justice

Article 8 imposes a positive duty on prison decision-makers to balance a prisoner’s family-life rights against public-safety risks. Where a prisoner seeks to visit a dying parent, refusal of an escorted visit requires compelling reasons. The decision-maker must assess the actual risks, consider whether they can be managed by appropriate conditions, and revisit the assessment when initially proposed alternatives become impracticable. A generic perception of risk, without sufficient analysis of practical safeguards, may fail to justify the effective refusal of contact. Judicial review examines whether that balancing exercise was undertaken lawfully; it does not substitute the court’s assessment of risk for that of the prison governor.

The claimant was serving an imprisonment for public protection sentence. His tariff had expired, and his terminally ill father was expected to die shortly. The prison governor refused release on temporary licence and refused an escorted visit to the father’s home, but indicated that an escorted visit to a hospital or hospice would be permitted.

Hospital and hospice arrangements proved impracticable. The claimant sought judicial review, alleging that the decision unlawfully interfered with his Article 8 right to maintain family life and that the risks had not been properly balanced against the importance of seeing his dying father.

1. Judicial review granted. Permission was granted, the decision was quashed, and the matter was remitted for reconsideration.
2. Article 8 was engaged. The relationship between a son and his dying father plainly formed part of family life. Article 8 imposed a positive duty to balance the importance of maintaining that relationship against risks to public safety, the prisoner and escorting officers.
3. The court accepted the approach illustrated by Ploski v Poland [2003] I PLR 120: refusal of such contact required compelling reasons, and the decision-maker had to consider whether an alternative such as escorted leave could address the risks.
4. Rule 9(4) of the Prison Rules supplied an unacceptable-risk test concerned with offending or failure to comply with release conditions. It did not itself justify treating broader and generically expressed safety concerns as sufficient to refuse the proposed visit.
5. The governor was entitled to impose conditions on an escorted visit. However, the decision required analysis of practical safeguards, including timing, plain clothes, the vehicle used and arrangements reducing the possibility of recognition. The ability of others to enter the father’s home was not, without more, a sufficient freestanding reason.
6. The decision was evolving. Once hospital and hospice arrangements became impracticable, the governor had an obligation to revisit the perceived risks and consider whether a visit to the father’s home, or another practical location, could be safely managed. The court did not reassess the risks for itself, but found that the necessary balancing exercise had not been adequately carried out.

Not stated in the judgment.