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

A policy challenged for procedural unfairness is unlawful only where the system it establishes is inherently unfair. The question is whether, considered as a whole, it fails to give affected persons a fair opportunity to make meaningful representations. An unacceptable risk is one inherent in the system, rather than the ordinary possibility of an aberrant decision in an individual case.

Guidance concerning additional licence conditions was not inherently unfair. The offender manager’s role in discussing risk, sharing assessments, conveying concerns to MAPPA and recommending conditions could provide a fair opportunity for representations. More explicit safeguards might be helpful, but alleged procedural failures should ordinarily be pursued by challenge to the individual decision.

The appellant was released on licence after serving the custodial part of a determinate sentence. His licence contained additional conditions concerning residence, reporting, curfew and electronic tagging. Although those conditions were later varied or removed, he maintained that the procedure for imposing them breached Article 8 ECHR because he had not received a proper opportunity to make informed representations.

Cranston J dismissed both the individual procedural claim and the challenge to the policy framework: [2013] EWHC 2492 (Admin). Permission to appeal was granted only on the policy issue. The appeal therefore concerned whether the guidance governing the imposition of additional licence conditions created an inherent and unacceptable risk of procedural unfairness.

1. Appeal dismissed. Although the judge had expressed the governing test too restrictively, his conclusion that the policy was lawful was correct.

2. The proper question was whether the system established by the guidance was inherently unfair because it failed to afford an offender a fair opportunity to make meaningful representations about proposed additional licence conditions. A policy may be unlawful where the risk of unfairness inheres in the system itself, rather than arising from aberrant individual decisions. If the system is not inherently unfair, the proper target of a procedural-fairness challenge is the individual decision.

3. The court applied the approach in R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481. It held that the Article 3 formulation considered in R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 was confined to the risk of prohibited ill-treatment and did not state a general test for procedural unfairness.

4. The guidance did not establish an inherently unfair system. The offender manager worked with the offender on sentence planning, discussed and shared the OASys assessment, could communicate the offender’s concerns at MAPPA meetings, and was responsible for recommending licence conditions. Those functions could give an offender a meaningful opportunity to make representations before conditions were recommended.

5. More specific guidance on procedural fairness could assist. Its absence did not make the system unlawful. Claims that a particular offender had been denied procedural fairness must be determined case by case.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the conclusion that the policy framework was lawful, while correcting the judge’s articulation of the applicable test: [2014] EWCA Civ 827 .
• High Court (Administrative Court): Cranston J dismissed the appellant’s procedural challenge to the imposition of additional licence conditions and to the policy framework: [2013] EWHC 2492 (Admin) .