Tabbakh, R (On the Application Of) v The Staffordshire and West Midlands Probation Trust & Anor

A policy governing additional licence conditions is unlawful only where it leads to unlawful action, or presents a very high risk or inevitability of unlawfulness inherent in the system. In Article 3 cases, a significant risk may suffice.

Article 8 may require an offender to have a basic, meaningful opportunity to make representations about additional licence conditions before release. The content of that opportunity depends on the seriousness of the interference, the interests at stake and practical circumstances. Oral representations, personal attendance and determination by an independent body are not invariably required. In this case, the claimant’s concerns had been conveyed through the MAPPA process and the procedural requirements were satisfied.

The claimant, serving the non-custodial part of a sentence for preparing a terrorist act, challenged the process by which additional licence conditions were imposed on his release. The conditions included residence in approved premises, curfews, reporting requirements and electronic monitoring.

He alleged that he had not been given a meaningful opportunity to make representations concerning the effect of the proposed conditions on his mental health and access to treatment, contrary to Article 8 of the Convention. He also challenged the policy governing additional licence conditions as creating an unacceptable risk of unlawful decision-making.

The central issues were the applicable threshold for challenging the policy and the procedural protection required before imposing additional licence conditions.

1. The claim was dismissed. The court rejected the submission that a policy is unlawful merely because it creates an unacceptable risk of unlawful decision-making. The applicable threshold was that the policy must lead to unlawful action, or involve a very high risk or inevitability of unlawfulness inherent in the system. In Article 3 cases, the lower threshold of a significant risk applies because Article 3 protects an unqualified right. This approach was supported by Gillick v West Norfolk and Wisbech Area Health Authority, [1986] AC 112, R (Munjaz) v Mersey Care NHS Trust, [2005] UKHL 58, and R (Refugee Legal Centre) v Secretary of State for the Home Department, [2004] EWCA Civ 1481.
2. Article 8 procedural rights could be engaged when additional licence conditions were fixed. The process, viewed as a whole, had to be fair and afford due respect to the offender’s protected interests. The required procedure depended on the nature and practical effect of the conditions, the extent of the interference and the interests at stake.
3. The minimum procedural protection in an appropriate case was a meaningful opportunity to make representations. That did not necessarily require the offender’s presence, oral submissions, disclosure of every document or decision-making by the Parole Board. The right could yield to urgency, and the effect of representations would be limited where risk assessment involved professional judgment and serious public protection concerns.
4. The claimant’s procedural rights had been satisfied. His wish to live in London, reliance on a particular therapist, mental health concerns, self-harm and objections to electronic monitoring were known within the MAPPA process. His offender manager participated in the meetings and conveyed his perspective. The continuing review and subsequent variation of the conditions further supported the conclusion that the process was fair.
5. The policy itself was not unlawful. It contemplated the offender manager acting as the conduit for the offender’s concerns, allowed engagement before release and permitted disclosure requests concerning MAPPA material. The claim therefore failed.