Smith, R (on the application of) v Secretary of State for Justice

The safeguarding policy required a two-stage assessment. At stage 1, an offence against a child appearing in the policy’s trigger list brought the prisoner within the assessment process. At stage 2, officials had to evaluate critically all relevant circumstances to decide whether the prisoner presented a continuing or potential risk to children. A historic conviction, particularly one committed when the offender was himself a child, could not by itself justify imposing safeguarding measures. Where the evidence did not provide a rational and proportionate basis for finding a continuing risk, the decision was unlawful. The policy had to be applied with particular care because the measures could significantly interfere with family life under Article 8 of the European Convention on Human Rights.

The claimant, a life prisoner, challenged the decision to subject him to Safeguarding Children Measures because of a 1998 conviction for indecent assault committed when he was 13 against another 13-year-old boy. The Secretary of State relied on the public protection manual, which used listed offences as triggers for further assessment. The claimant argued that the offence should not have triggered the policy or, alternatively, that the evidence did not support a finding of continuing risk to children and that the measures were irrational or disproportionate.

The central issues were the proper construction of the policy’s trigger stage and whether the stage 2 assessment was lawfully reached.

1. Stage 1. The policy’s trigger stage was deliberately broad. The relevant question was whether the prisoner had committed an offence against a child appearing in the policy’s list. No additional evaluative exclusion applied at that stage. The claimant’s 1998 conviction therefore satisfied the trigger condition.
2. Stage 2. The trigger led to a further qualitative assessment of whether there was a continuing or potential risk to children. This assessment had to consider the historical offence together with all relevant previous decisions, events and other information. The policy expressly contemplated that measures would not be imposed where it was clear that the prisoner presented no continuing risk or that the arrangements would add no value.
3. The evidence relied upon did not rationally support the conclusion reached. The material principally repeated the historic conviction. The relevant assessment recorded no current concerns in relation to children. Other documents indicated violence or a general risk of reoffending, but did not establish a continuing risk to children. The fact that the claimant had committed the offence at 13 against a fellow pupil was particularly significant.
4. The decision to answer the stage 2 question affirmatively was therefore irrational, unreasonable and disproportionate. The safeguarding regime could substantially interfere with family contact and photographs, engaging Article 8. Correct application of the policy could justify proportionate interference, but failure to apply stage 2 critically and analytically could not.
5. The decision was quashed. The defendant was required to undertake a fresh decision-making process applying the policy correctly, including a critical analysis of what information demonstrated a continuing risk to children. Costs were subject to detailed assessment, with legal aid taxation.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision.