Case No: CO/12741/2009
Neutral Citation Number: [2010] EWHC 2695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date: Wednesday, 3rd September 2010

Before:

HIS HONOUR JUDGE BEHRENS

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Between:

BROOM

Claimant	
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SECRETARY OF STATE FOR JUSTICE	

Defendant	
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(DAR Transcript of 
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Ms Krause appeared on behalf of the Claimant.
Mr Staker appeared on behalf of the Defendant.

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Judgment
His Honour Judge Behrens:

1.	There is before the court an application for judicial review by Mr John Broom. It concerns a decision made on 10 February 2010 by the Safeguarding Children Panel, whereby they refused to permit Mr Broom to have possession of some 24 photographs which showed pictures of members of his family, his two sons, his daughter and nieces, who were, at the time the pictures were taken, children.  
2.	Mr Broom is a serving prisoner. The main ground of challenge, as it has been presented to me today, is that the decision infringes Mr Broom’s Article 8 rights. In addition there is an alternative subsidiary ground that the decision is either procedurally or substantively defective on traditional judicial review grounds.  Those two grounds overlap, but are by no means identical, and need to be considered separately.  
3.	I start by setting out the facts.  Mr Broom was born in March 1961.  He has a number of convictions, including a conviction in 1979 for rape. On 4 February 1992 he was convicted of offences of rape and buggery on a female.  There were two females involved, one of whom was a 16-year-old girl and therefore a child, the other was a 19-year-old girl.  The offences took place at night on the streets.  He was convicted, and received a discretionary life sentence with a minimum tariff of nine years.  It is a factor in this case that Mr Broom denies his guilt in relation to those offences.  

4.	Mr Broom was initially imprisoned at Wakefield Prison between 1992 and 2000.  He was transferred in 2000 to Whitemoor Prison.  Throughout his initial period of imprisonment at Wakefield and at Whitemoor, he was allowed to keep and have possession of the 24 photographs with which this case is concerned.  Furthermore, he has exhibited a memo from the Probation Department whilst he was imprisoned at Whitemoor dated 31 October 2005 which is headed “Re Safeguarding Children”: 

“You have made a number of applications concerning the restrictions placed upon you under the safeguarding children procedures and it was agreed that the Prison Risk Management Panel would review your case.

The Prison Risk Management Panel has now concluded that review and agreed that contact restrictions under the safeguarding children procedures are not required.   There are no longer any restrictions to your level of contact with children.”

5.	In May 2008, Mr Broom was transferred back again to HMP Wakefield.  He was almost immediately (that is to say, within a matter of days) assessed by the Safeguarding Children Panel and was assessed at Level One, that is, the highest level of restriction.  That means that he was not allowed any contact with any child without permission.  Some three months later, in August 2008, his property was returned to him but it did not include the 24 family photographs to which I have referred.  Mr Broom immediately started complaining that those photographs had been removed.  There then followed a fairly tortuous procedure under which Mr Broom attempted to appeal and fill in the correct forms in order to get those photographs back.  It is not necessary for me to go into the detailed documents which he signed and the responses that he got.  According to the prison, the correct forms were available and he had not filled them in.  According to Mr Broom, he had done what was required.

6.	Be that as it may, solicitors became involved in about June 2009 and an initial judicial review was instigated sometime in October 2009.  That came before Blake J on the papers, who was faced at the time with rival submissions from the defendant that it was both premature and out of time.  Blake J formed the view, which has not subsequently been challenged, that the challenge was in fact premature because there was not the proper application. The matter came before me on 17 December 2009 when I approved a consent order between the parties staying the application in order that a fresh decision could be made. 

7.	The fresh decision, which is the subject of the judicial review before me, was duly made on 10 February 2010. The witness statement of Mr Mark Mahoney sets out the material which was taken into account before that decision was made.  In his evidence Mr Mahoney sets out  that the prison had written to Sarah Broom and Michael Broom, (the father of Sarah and Louise Broom), the Avon and Somerset Probation Service, Wakefield Social Services, the National Society for the Prevention of Cruelty to Children, and the police.  One of the children involved was deceased and so no consent was able to be obtained from her.  Sarah Broom, wrote in January 2010 to confirm she was content for Mr Broom to have the photographs of her as a child in his possession.  Both Social Services and Probation contacts confirmed orally that they were content for Mr Broom to have historical photographs in his possession so long as they were of an appropriate nature.

8.	It is I think accepted by the Secretary of State that there is nothing inappropriate about the photographs, save and except that they show children.  The NSPCC provided a nil return; the Avon and Somerset Constabulary provided written representations which are exhibited, and include:
(Checked to audio – requested document not available)

“Evidence suggests that Mr Broom has a sexual interest in children, so allowing him access to material which may fuel this interests would in my view be detrimental to public safety.  The one adult who has consented to the provision of a photograph can be seen in my view as colluding with a convicted sex offender.  Recent experience has suggested that there is a trade in photographs of children in some prisons.”

9.	On behalf of Mr Broom it was pointed out that these comments wee made by an officer who was relying solely on the material in his possession; who did not know Mr Broom, had not met Mr Broom and did not interview anybody before making the comments
10.	 Mr Mahoney goes on to set out the reasons for the decision, and to explain the assessment of risk, including in paragraph 20, where he says: 
“Finally, the panel had regard to the views of the police that allowing him access to material which may fuel this interest would be detrimental to public safety.  In this regard, the panel took account of the risks that arise within the prison setting, in particular the fact that HMP Wakefield is part of the high security estate, houses a large number of sex offenders, many of whom have been convicted of offences of children.  With a large number of child sex offenders located together, there is a risk of photographs of children being shared among offenders.  Accordingly, the panel was concerned to ensure that individuals entrusted with such photographs would not become involved in such activities.  Unfortunately, Mr Broom’s level of risk of harm to children is such that the panel were unable to be so satisfied.”

11.	The actual decision, as will have been plain from that evidence, was to refuse the photographs.  The decision is a document of approximately one page in length.  It starts by setting out the description of the people in the photographs; that is to say, two sons, a daughter and two nieces, and continues: 

(Checked to audio – requested document not available)

“This was considered by the Safeguarding Children Panel which met in the prison on 9 February.  Following consultation with external agencies, the decision of the panel is that the return of the requested photographs will not be permitted for the following reasons.”

And there follow five reasons: 
(Checked to audio – requested document not available)

“Only one of the five named individuals has given consent to you having their photographs in your possession.  Without such consent from them all, it is not possible to assess the impact on them as individuals.  Evidence of your current conviction suggests you have a sexual interest in children, and so allowing you access to material, the photographs, which may fuel this interest, could be detrimental to public protection.  Your OASys document dated May 2009 assesses you as posing a high risk of general reconviction.  The risk matrix assessment indicates that you present a high risk of sexual reconviction.  You are currently assessed as posing a high risk of serious harm to children, the public, a known adult in the community, and a medium of serious harm to children in custody.  You do not accept responsibility for the offences, and therefore have been unable to access offence-focused work.  Consequently, you cannot evidence any reduction in the above risk levels.  If you wish to appeal against the decision, you have a right to do so via the usual prison complaints procedure.  The decision may be reviewed, and if you accept responsibility for your offences and engage with offending behaviour programs to reduce your risk, if information comes to light to indicate that your risk to children has increased or decreased.”
12.	Following that decision, amended grounds were submitted.  The matter came before HHJ Kay on 26 May 2010, who granted oral permission. 
13.	In the course of his submissions, Mr Staker on behalf of the Secretary of State made a number of points about the effect of the decision.  First, the decision was not a final decision and could be reviewed.  Second, Mr Broom was entitled to have current photographs of his family.  Third, there was nothing in the decision to prevent him having visits from family members.  Fourth, these were historical photographs, only 24 photographs of persons at the time were children.  He submitted that it is a fairly limited restriction.  

14.	In his third witness statement Mr Broom sets out the effect that the lack of the photographs have on him.  In paragraph 6 he says that he still cannot understand why he was allowed to have his own private photographs for ten and-a-half years in one dispersal jail. As soon as policy changes all his photographs were confiscated, when he has done nothing to warrant it.  He suggests that two of the persons of whom photographs were taken have given their consent.  He says he has little to do with his family now, and the photographs are all he has left.  He regards it as disproportionate to consult members of his family.  He makes the point that he has completed at least one course, a CALM course at Whitemoor, and says that all of the photographs mean a lot to him.  They are all he has left of memories of family he once had.  He does have some up-to-date photographs, but his family are like strangers to him because he has not seen them grow up for so long.  The original photographs are his memories and mean the world to him.

15.	That then is a summary of the evidence.  I have in addition been referred to authorities, and to the current guidance which in the PPM, the Public Protection Manual, which was amended in January 2009, under the heading “Photographs of children in possession”. I have been referred in particular to paragraphs 1.1 and the comments on that subparagraph  Paragraph 1.1 is headed “Background”, and provides: 

“Prisoners, who present a risk to children, will like any other offender wish to have photographs of family members and friends in their possession.  There are issues that must be considered before allowing prisoners who present a risk to children to have photographs of children in their possession.  

The Prison Service has a duty to protect children from being conditioned and groomed as a possible target of physical or sexual abuse.  This statutory guidance has been produced to assist establishments in preventing an offender from grooming a child for sexual abuse.  It concerns prisoners who have been identified as being subject to risk to children … and convicted of a sexual offence against a child and are currently serving a custodial sentence or have a previous conviction for such an offence.  

The apparent dangers of allowing an offender who presents a risk to children to have possession of children’s photographs may appear straightforward, although the following points must be considered:  

Origin 
Who has sent/given the photograph to the prisoner? 

The Child’s Identity
What relationship is the child to the prisoner ?

Evidence of Risk 
Does the offender present a risk to the child?

Networking/sharing 
Could the photograph and/or the child’s address be passed on to another prisoner?

Parental Responsibility 
Is that person acting responsibly towards the child?”

16.	It is not now suggested that the PPM itself is open to challenge, and what I have described as the traditional challenge is based on the alleged failure by the Safeguarding Children Panel to address specifically the matters which are set out in paragraph 1.1 as points which must be considered.  In her very helpful skeleton argument, Ms Krause complains that the defendant has failed to consider any of the above matters, and that the reasons simply do not address them.  In particular, in paragraph 3 she says: 

“The PPM requires that the decision maker focus on the child’s identity, evidence of risk to that child and, crucially, whether these photographs can be used for networking/sharing.  The defendant has failed to pay any heed to these considerations and accordingly she submits that the decision is open to challenge.”

I should perhaps add that she does not contend, as part of the traditional challenge, that the decision was one which was not open to the Children Safeguarding Panel if they had taken into account all relevant considerations; she expressly does not say that the decision of itself is Wednesbury unreasonable.  

17.	Mr Staker submits that it is obvious from reading the decision and the evidence of Mr Mahoney that the Children Safeguarding Panel have indeed taken into account all of the matters which are required and other additional matters, all of which are relevant, before coming to their decision.  It is plain, says Mr Staker, when one looks at the decision, that they were well aware of whom the children were, because at the beginning of the decision the identity of the photographs are set out, with their relevant dates of birth.  It is equally clear that the panel were aware that they were historical photographs, because it said so in the first line of its decision.  And it follows from that that the panel were completely aware that the persons involved were not children at the time, and therefore that there was no risk to them as children.  It is therefore clear, says Mr Staker, that the decision is made on the basis of assessment of risk to children in general; and that is evidenced, so he says, when one looks firstly at the second to the fifth grounds that they gave.  That is to say, that Mr Broom is assessed as posing a high risk of general reconviction and a high risk of sexual reconviction and there is a high risk of serious harm to children and a medium risk of serious harm to children in custody.  And that factor is not alleviated by the fact that Mr Brrom does not accept responsibility, and therefore is not able to take steps which reduce the above risk levels.  So therefore, says Mr Staker, it is abundantly clear that they have taken into account those matters.

18.	So far as networking is concerned, Mr Staker relies, as I think it is common ground he is entitled to, on the evidence of Mr Mahoney and the passages to which I have referred.  To my mind, Mr Staker’s submissions on the traditional challenge are unanswerable.  I am quite satisfied that the panel did take into account the matters which are referred to in the PPM, and I am satisfied that that is clear from the decision and the evidence of Mr Mahoney. In those circumstances, as it seems to me, the traditional challenge must fail.

19.	I move then to the Article 8 challenge, which appears to be the main ground of challenge in this case.  I have helpfully been referred to a number of authorities in this case.  For example, Ms Krause referred me to the decision in Nasri which, she submitted, was authority for the proposition that it is for the court to decide whether there is a breach of a Convention right; it is not for me simply to review that earlier decision, and to say whether that decision was within an acceptable bracket, or whether it was Wednesbury unreasonable, and she referred me in particular to paragraphs 13, to 15 of the speech of Lord Hoffmann in Nasri . 

20.	Ms Krause then referred me to the decision in Hirst (No.2) (2005) 42 EHRR 41, which made it clear that Convention rights apply to prisoners whilst in custody, save of course the right to freedom  is restricted in accordance with the law.  It is therefore clear that Mr Broom’s Article 8 rights remain, notwithstanding the fact that he is in custody.  She conceded that there was no authority on the Article 8 position so far as photographs were concerned, but she submitted that Article 8 is engaged on the facts of this case.  She referred me to the decision in Daly [2001] UKHL 26, and particular the approach that the court has to adopt by reference to the speech of Lord Steyn in paragraphs 25-27, and in particular she referred me to the observations of Lord Clyde which are cited with approval, in a case called de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, where he says: 

“The court should ask (i) whether the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) whether the measures designed to meet the legislative objective are rationally connected to it; and (iii) whether the means used to impair the right or freedom are no more than is necessary to accomplish that objective.”

She says that so far as Article 8 is concerned, the crucial question is the third one, which she described as the proportionality test.

21.	Mr Staker referred me to the decision also of the House of Lords in Razgar [2004] UKHL 27, and in particular the test which he helpfully set out in his skeleton, which is much to the same effect: 

“Is the decision an interference by the defendant with the exercise of the claimant’s right to respect for his private or family life?  If so, will such interference have a consequence of such gravity as potentially to engage the operation of Article 8?  If so, is such interference in accordance with the law?  If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights or freedoms of others?  If so, is such interference proportionate to the legitimate public ends sought to be achieved?”

22.	There was in fact, as it seems to me, considerable agreement between the parties in relation to my task today.  So far as the first two matters that are in Razgar, there is a difference between the parties, because Mr Staker, without I think conceding that there was even an interference with the exercise of the claimant’s right to respect for his private or family life, submitted that it was not of such gravity as potentially to engage the operation of Article 8.  He expressly referred me to a passage in Razgar where Lord Steyn indicated that it had to be sufficiently serious to engage Article 8, and he reminded me of the matters to which I have already referred as to the very limited consequences of this particular decision.  It does not stop visits of members of the family; it does not prevent Mr Broom having photographs of his family as adults; it simply prevents him having these 24 photographs, and furthermore the decision makes it clear that it is subject to being refused on the grounds specified in it.  He says that is not a consequence of such gravity as potentially to engage the operation of Article 8.  

23.	Ms Krause, on the other hand, submits that it is, and she has reminded me of the passage in Mr Broom’s witness statement, which I have read out in relation to the memories that he has of his children, and indeed no doubt his nieces, which is the only connection that he has.

24.	To my mind, this is something of a marginal decision, but in the end I have come to the conclusion that Mr Staker’s submissions are to be preferred; that is to say that on the facts of this case and the limited nature of the restrictions, this is a case where Article 8 is not engaged, because the consequences are not of such gravity to engage Article 8.  In those circumstances, I do not actually have to make a decision on whether there is in fact an interference with Mr Broom’s private life at all.  If I had to, I would have decided there was an interference,.

25.	On the assumption that that assessment is incorrect, there is no dispute as to the third question posed in Razgar;  that is to say that the interference is in accordance with the law. Ms Krause also accepts that the  can be justified on a number of grounds in the fourth question; for example, for public safety, the prevention of disorder or crime, for the protection of morals or the protection of rights of others. The next difference of importance between the parties is whether such interference is proportionate to the legitimate public end sought to be achieved.

26.	On this point here is a clear difference between Ms Krause and Mr Staker.  Ms Krause’s points are summarised in paragraphs 10 and 11 of her skeleton argument.  She accepts, of course, that Mr Broom has offended against young women, but, she says, not children; she makes the point that whilst we have here a rape conviction, the victim was 16. Mr Broom has children of his own; he has had photographs of his family and children in possession, she says, for over ten and a half years.  He has not offended against his own children, and there is no evidence, she says, that he has ever used his photographs for improper purposes.  Accordingly Ms Krause submits that in order to justify removing the claimant’s photographs from him, the defendant would have to show that there is a real, not speculative, risk to the people in the photographs and/or other children.  She submits that it is for the defendant to spell out that risk, and provide an evidential basis for it; she submits that the defendant has singularly failed to do that, and therefore she submits the failure to identify precisely what he says of the likely harm renders an interference under Article 8, and makes it unjustified because of its disproportion, because it fails to take into account the specific circumstances of the claimant.

27.	The defendant, on the other hand, makes the point that it is not possible to identify completely the precise nature of the risk, other than the fact that he has been assessed as high-risk to children.  He has not undertaken relevant courses, because he denies the offences, and has not been able to address the risk.

28.	In those circumstances, the defendant says that it is perfectly proportionate to take the limited steps that it has taken in relation to the photographs, having regard to the risk to children generally.  Again, I prefer the submissions of the defendant; if it is necessary for me to form my own view, my view is that the removal of the photographs is proportionate in the light of the general risk to children, and also the possibility of networking.  But if, as Mr Staker submits, all I have to do is to decide whether the decision of the panel was within an acceptable bracket, that is to say it is one that it was entitled to come to, then I equally decide that that is the position; it is a decision that I myself would almost certainly have come to.

29.	For these reasons, this application for judicial review is refused.

Order: Application refused.