Hart v Governor of HMP Whitemoor

The imposition of Safeguarding Children Measures restricting a prisoner’s contact with children must be proportionate to the risk of harm being prevented. An offence outside the relevant list may trigger assessment, including where children were physically proximate, but the seriousness of offences alone does not establish a continuing risk to children. The assessment must address the risk presented while the prisoner is in custody, rather than relying solely on the risk posed after release. Where the evidence shows a low custodial risk, restrictions may be unlawful if their necessity and proportionality are not established.

The claimant, a life prisoner held at HMP Whitemoor, challenged the prison’s decision to impose Safeguarding Children Measures restricting contact with children. The measures were based on the circumstances of his convictions, which involved children being present during violent offences, and on an assessment of his risk to children in the community.

The claimant’s assessment recorded a low risk to children while he remained in custody. He argued that the prison had failed to identify a continuing custodial risk and had acted disproportionately. The central issue was whether the decision to impose the measures was lawful and proportionate under the governing Child Contact Procedures.

1. The judicial review was allowed. The decision to impose Safeguarding Children Measures was quashed, and the defendant was ordered to pay the claimant’s reasonable costs.
2. Restrictions on a prisoner’s contact with a child family member are a serious interference with both the prisoner’s and the child’s family-contact rights. They require justification by a proportionate relationship between the restriction and the risk of harm to be avoided.
3. An offence not listed in Annex A to the Public Protection Manual may nevertheless be a trigger for assessment, depending on all the circumstances, including the physical proximity of children. Where offences were not committed against or in relation to children, however, there is no general rule that their seriousness alone establishes a trigger or continuing risk.
4. The claimant’s offences, committed in the presence of children, could properly be treated as triggering offences. The decision to begin the assessment process was therefore not irrational. The fact that other prisons had reached a different conclusion did not itself make the defendant’s decision unlawful.
5. The purpose of the procedures was to prevent harm to children from inmates while in custody. The decision-maker therefore had to address the claimant’s custodial risk. Although the claimant presented a high risk of serious harm to the public on release, his OASys assessment identified him as a low risk to children while in custody. On the facts, it was not appropriate or necessary to impose Safeguarding Children Measures.