The Report on the Anthony Rice
case
28. On 10 May 2006 HM Chief Inspector of Probation,
Andrew Bridges, published the report of his review of the case
of Anthony Rice, a life sentence prisoner who on 17 August 2005
murdered Naomi Bryant following his release from prison on licence
("the Bridges Report").[31]
The Report found that, on balance, Anthony Rice should not have
been released on life licence in the first place, and that, once
he had been released, he could and should have been better managed.[32]
It found a number of deficiencies, in the form of mistakes, misjudgments
and miscommunications at various stages throughout the whole process
of the case, amounting to a cumulative failure. For example, it
found that the Parole Board did not have information before it
of previous convictions (material on the basis of which it might
have made a different decision) and there was a misunderstanding
amongst those handling the case about the nature of the hostel
and the level of supervision provided.
29. The Bridges Report also finds, however, that
one of the reasons why the Parole Board underestimated the risk
of harm to others when it decided that he was safe to release
was that from the time of his transfer to open conditions in 2001
"the people managing his case started to allow public protection
considerations to be undermined by its human rights considerations,
as these required increasing attention from all involved, especially
as the prisoner was legally represented."[33]
In a number of subsequent places in the report, further reference
is made to it being an increasingly challenging task for people
who are charged with managing offenders effectively to ensure
that public protection considerations are not undermined by "the
human rights considerations".[34]
30. The DCA's review of the implementation of the
HRA describes the Anthony Rice case as an example of a "misunderstanding
of human rights considerations", and claims that the Chief
Inspector of Probation found in his report on the case that the
HRA is being misapplied, notably by allowing a prisoner, whether
himself or through his lawyers, to "shift the focus of consideration
onto the proportionality of the restrictions to which he is subject,
at the expense of assessment of the risk of harm he presents".[35]
The DCA Review attributes a clear causal link between these misunderstandings,
misinterpretations and misapplications and the death of Naomi
Bryant. It states, for example , that "the result of this
[misinterpretation of the effect of the Convention rights] can
either be simple inefficiency or frustration
or tragedy,
as in the case of Anthony Rice",[36]
and that "human rights considerations have perhaps nowhere
been more tragically misapplied than in the case of Anthony Rice".[37]
In his major speech on human rights delivered to the Human Rights
Lawyers Association on 29 September the Lord Chancellor repeated
these assertions, saying, for example, that "The events surrounding
the Anthony Rice case provide a very conspicuous and sobering
example of the operational problems which have arisen for key
agencies as a result of misconceptions and misunderstanding".
31. We accept that it would be a matter of serious
concern if there were evidence to demonstrate that those responsible
for making decisions about the release of potentially dangerous
prisoners, and for managing offenders, were interpreting the Human
Rights Act in such a way as to undermine public safety. We therefore
looked very carefully at the Chief Inspector's Report to identify
precisely any evidence that this happened at the relevant decision-making
points in relation to Anthony Rice, in particular at the time
of his release on licence and when deciding the conditions to
which he should be subject on release.
32. We were unable to find any concrete evidence
in the Report itself that any decision concerning the release
or management of Anthony Rice was affected in any way by human
rights considerations being given precedence over public protection.
There is nothing in the Report to indicate the role played by
human rights arguments at the oral hearing of the Parole Board
panel on 17 August 2004 at which the decision was taken to release
Anthony Rice on licence once appropriate conditions had been finalised.[38]
The Report mentions that in the period between that decision
and his release on licence the Lifer Review and Recall Section
of the Home Office were concerned that the conditions in his licence
"might be excessively restrictive in terms of the Human Rights
Act".[39] But,
significantly, the Report goes on to state that "the advice
offered to the Parole Board highlighted the fact that the Act
allows for interference with the rights of an individual where
this is necessary for public safety and the protection of the
rights of others."
33. It therefore appeared to us that the concern
repeated throughout the Report, that human rights considerations
may be undermining public protection, is more in the nature of
a general concern than one based on clear findings that human
rights arguments were determinative of particular decisions leading
to Anthony Rice being released on licence and managed in such
a way that he was not prevented from murdering Naomi Bryant.
Indeed, it seemed clear from the Report that it was a combination
of a lengthy catalogue of other failures which was responsible
for the mistaken decision to release Anthony Rice, rather than
any prioritising of human rights considerations over public safety.
34. We therefore decided to write to Mr. Bridges
for clarification.[40]
We asked if he could let us know precisely what information contained
in his report he considers supports his finding that from 2001
"the people managing [Anthony Rice's] case started to allow
public protection considerations to be undermined by its human
rights considerations, as these required increasing attention
from all involved, especially as the prisoner was legally represented".
We asked whether he had any further evidence, over and above
that already contained in the report, to support that view. We
also asked if he could provide any evidence that at the principal
decision-making points in the management of Rice's case, including
at the time of his release on licence and in deciding the conditions
to which he should be subject on release, human rights considerations
had the effect described in the report, and whether in Mr. Bridges'
view this was because of a correct or incorrect interpretation
of the requirements of the HRA by the relevant decision-makers.
35. In his reply Mr Bridges himself points out that
his report "made no comment about the Human Rights Act itself"
and that it was a huge distortion of his report's findings to
say that Rice was released in order to meet his human rights.[41]
He also says, significantly, that he did not think that decision-makers
are interpreting the Act wrongly, and that in his experience the
great majority of case managers are either fully aware that the
HRA does not prevent them from carrying out their public protection
responsibilities or would at least know whom to consult to check.
He has no doubt that Parole Board members and staff have a proper
understanding, in principle, of how to implement their public
protection duties while complying with human rights considerations.
He says the report's comments on the impact of human rights considerations
on the decision-making process were much more subtle, relating
to the practical circumstances in which case officers found themselves.
He says that
"In broad terms our Finding is based on us discovering
plenty of evidence of [case officers] discussing the [proportionality
of restrictions on Mr Rice], and relatively little of them discussing
[how to manage them effectively]. Following our discussions with
the people involved we took the view that the attention of the
relevant officers was constantly drawn away from the latter towards
the former. We used the term 'distracted' to describe this, and
as it happens this appears to have been accepted by the people
involved as a fair interpretation."
36. We therefore asked the Lord Chancellor whether
he now accepted, in the light of Mr. Bridges' letter, that his
report does not demonstrate that the Rice case is an example of
a tragic misapplication of human rights considerations, or of
any misinterpretation or misunderstanding of the HRA or the European
Convention on Human Rights ("ECHR") by officials. The
Lord Chancellor was very candid in his response, saying that he
found Mr. Bridges' letter "very disappointing in the context
of his report".[42]
He accepted that Mr. Bridges' letter seems "difficult to
align with what he says in his report". In the Lord Chancellor's
view, the Chief Inspector's report on the Rice case was clear
that the Chief Inspector was "concerned that officials involved
in the decision in the Anthony Rice release question were distracted
by human rights considerations". His letter, by comparison,
was, in the Lord Chancellor's view, "opaque", "very
difficult to follow" and did not throw much light on the
issue. The Lord Chancellor thought that the Government had to
go on the basis of what the Chief Inspector had said in his report,
not because what he had said in the letter should be ignored,
but because the report raised a particular issue which needed
to be addressed, namely the risk that officials were being distracted
from public safety considerations by focusing too much on human
rights considerations. He therefore did not resile from the Government's
response to the Rice report, which was to issue proper guidance
underlining that public safety comes first. We welcome the
Government's readiness to take action to correct apparent misunderstanding.
37. However, in our view, Mr Bridges' letter raises
serious questions about the reliance placed on his report in both
the DCA Review and the Lord Chancellor's speeches and interviews.
First, in our view it makes clear that there was no clear causal
connection between any interpretation or application of the HRA
and the death of Naomi Bryant, because Rice was not in fact released
"in order to meet his human rights". The assertion
that the tragic death of Naomi Bryant was therefore caused by
officials misinterpreting the HRA therefore is not made out.
Second, in our view Mr. Bridges' letter also makes clear that
the Rice Report does not demonstrate that officials misunderstood,
misinterpreted or misapplied the Human Rights Act or the ECHR
in any way. According to its author, the Rice Report raises much
more subtle issues about the "practical processes" by
which public safety considerations may be affected by human rights
considerations.
38. In our view, if the Bridges report demonstrates
anything, it is the need for fuller investigation, not of whether
officials in the criminal justice system are prejudicing public
safety through misunderstandings or misapplications of the Act,
but of precisely what Mr. Bridges means by the "subtle processes"
to which the HRA gives rise which somehow lead to public safety
considerations being given too little weight. The precise way
in which Mr. Bridges says that human rights considerations undermine
public safety considerations is certainly subtle: it is far from
self-evident that because the proportionality of restrictions
was more discussed than management of Rice's risk of harm the
former must have distracted attention from the latter. It is
possible that the passages in the Rice report which ignited the
controversy are the product of a misunderstanding of the HRA by
Mr. Bridges himself, in that he maintains a dubious antithesis
between human rights considerations and public protection considerations,
which does not acknowledge that, properly understood, public protection
forms a crucial part of an overall human rights perspective in
cases such as those of Anthony Rice.
39. In our view, while we agree with the Lord
Chancellor's view that it would have been completely wrong for
the Government simply to ignore what was said in the Report of
the Chief Inspector of Probation,[43]
we strongly disagree that the Chief Inspector's Report contains
any real evidence that public safety is being prejudiced by officials'
misinterpretations or misapplications of the HRA.
Conclusion
40. In our view, whatever other arguments there
may be about whether the Human Rights Act should be amended, repealed,
or replaced by a UK Bill of Rights, none of the three cases we
have discussed so far - the Afghani hijackers judgment, the failure
to consider foreign prisoners for deportation, and the Anthony
Rice case - demonstrates a clear need to consider amending the
Act. In each case, the Human Rights Act has been used as a convenient
scapegoat for unrelated administrative failings within Government.
The Lord Chancellor expressed his complete agreement that not
one of them justifies amendment or repeal of the HRA, which, he
says, is the conclusion of the review published in July.[44]
Moreover, that review, according to the Lord Chancellor, is not
the view merely of one department, but expresses the views of
the Government.[45]
41. We welcome the Lord Chancellor's candour in acknowledging
that "maybe we were not quite quick enough to spot the absence
of human rights issues in relation to all three of the issues".[46]
We also accept that, in the circumstances, in which there was
considerable public debate about whether the HRA was responsible
for various failings, a thorough but expeditious review of the
operation of the Act was "the right course for a responsible
government."[47]
We must, however, draw to Parliament's attention the extent
to which the Government itself was responsible for creating the
public impression that in relation to each of the three highly
contentious issues under consideration it was either the Human
Rights Act itself or misinterpretations of that Act by officials
which caused the problems. In each case, very senior ministers,
from the Prime Minister down, made assertions that the Human Rights
Act, or judges or officials interpreting it, were responsible
for certain unpopular events when, as we have shown above, in
each case these assertions were unfounded. Moreover, when those
assertions were demonstrated to be unfounded, there was no acknowledgment
of the error, or withdrawal of the comment, or any other attempt
to inform the public of the mistake. We very much welcome the
Lord Chancellor's assurance that there is now an unequivocal commitment
to the Human Rights Act right across the Government but, in our
view, public misunderstandings of the effect of the Act will continue
so long as very senior ministers fail to retract unfortunate comments
already made and continue to make unfounded assertions about the
Act and to use it as a scapegoat for administrative failings in
their departments.
16 Press Conference with the French Prime Minister,
10 May 2006, www.number10.gov.uk/output/page9443.asp. Back
17
Government Appeal over Hijackers, BBC News Online, 11 May
2006. Back
18
S v Secretary of State for the Home Dept [2006] EWCA Civ
1157 at para. 50. Back
19
Ibid at para. 51. Back
20
What the High Court decided on 10 May 2006 was that the Home Secretary
had acted unlawfully by deliberately delaying giving effect to
the Adjudicators' decision, to give himself time to devise a revised
policy which would purportedly justify not implementing that decision.
It was in respect of this that the High Court said it was difficult
to conceive of a clearer case of conspicuous unfairness amounting
to an abuse of power by a public authority, and commented that
it was particularly disturbing that this was not simply the conduct
of a junior official, but was authorised at the highest level. Back
21
Under s. 101 of the Nationality, Immigration and Asylum Act 2002.Permission
was required for such an appeal to proceed. Permission would only
be granted if there was an identifiable error of law which made
a material difference to the decision. Back
22
Constitutional Reform Act 2005, s. 3. Back
23
Q1. Back
24
Q2. Back
25
HC Deb 3 May 2006 cols 969-973 Back
26
"No more cock-ups Home Secretary", News of the World,
7 May 2006. Back
27
HC Deb 17 May 2006 col. 990. Back
28
The approach of the French Conseil d'Etat, for example, which
has power to quash a decision of the administration about the
country of destination, is that no alien may be sent back to a
country "for which there are serious and established reasons
to believe that the alien would be exposed there to a real risk
for his person, coming either from that State's authorities or
from persons or groups distinct from public authorities, as long
as the authorities of the country of destination are not able
to avoid such a risk by providing appropriate protection":
Prefet de l'Aude c. M. Belabdelli, (12 May 2006).This seems,
for all practical purposes, to be identical to the approach of
the Immigration Adjudicators in the case of the Afghan hijackers. Back
29
Lord Lester of Herne Hill has asked the Minister in a series of
PQs whether there have been cases in which the courts of other
member states of the EU have interpreted and applied Article 3
ECHR more restrictively than British courts but compatibly with
the case-law of the European Court of Human Rights; and if so,
whether they will publish details of such cases (see e.g. HL Deb,
17 May 2006 Q for WA 3405).To date the Government has not identified
any such case. Back
30
Q4. Back
31
HM Inspectorate of Probation, An Independent Review of a Serious
Further Offence case: Anthony Rice (May 2006). Back
32
Ibid,.Para. 1.1.2. Back
33
Ibid, Para. 1.3.1 Back
34
Ibid, Paras 1.3.5, 10.2.12, 10.2.17, 11.3, 11.26. Back
35
DCA review, p.27 Back
36
Ibid p. 25. Back
37
Ibid p. 27. Back
38
Review of the Anthony Rice case, Paras 8.3.1-8.3.3. Back
39
Ibid, Para. 8.3.11. Back
40
Appendix 3 Back
41
Appendix 4. Back
42
Q8. Back
43
Q11. Back
44
Q10. Back
45
Q17. Back
46
Q16. Back
47
Ibid. Back