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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> N, R (on the application of) v Ashworth Special Hospital Authority & Anor [2001] EWHC Admin 339 (11 May 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/339.html Cite as: [2001] EWHC Admin 339

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CHELMSFORD CROWN COURT

		Friday 11th May 2001

MR JUSTICE NEWMAN

1. The claimant has been detained, since 1987, at Ashworth Special Hospital under Sections 37 and 4l of the Mental Health Act 1983. He challenges a provision in the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000 (the Directions), which seeks to confer a discretionary power on each hospital authority to record and subsequently to listen to, a random ten per cent of the outgoing and incoming telephone calls of patients at the hospitals (Direction 29(3). The power of the Secretary of State to make Directions in respect of the hospitals is contained in the National Health Service Act l977. The power to make Directions in connection with the interception of telephone calls is not in question, but it is contended that the provision for random recording of telephone calls is unlawful, because it is incompatible with a right conferred by the European Convention on Human Rights (ECHR), being a disproportionate exercise of executive power infringing Article 8 of the Convention. Pursuant to the discretion conferred upon it, the first defendant has drawn up a policy for random monitoring of telephone calls at Ashworth. Last year it gave notice to patients of its intention to monitor calls and the details, as first published, gave rise to this application. The notice to patients did not make it plain that calls protected by legal professional privilege would not be monitored. It is now plain from the Directions that calls protected by legal professional privilege will not be subject to monitoring.

The Legal Framework

2. Section 4 of the National Health Service Act l977 (the 1977 Act), under the heading "Special Hospitals", provides as follows:

"4(1) The duty imposed on the Secretary of State by Section l above to provide services for the purposes of the health service includes a duty to provide hospital accommodation and services for persons who are liable to be detained under the Mental Health Act 1983 and in his opinion require treatment under conditions of high security on account of their dangerous, violent or criminal propensities."

(2) The hospital accommodation and services mentioned in subsection (1) above are in this Act referred to as 'high security psychiatric services'."

Sections 37 and 41 Mental Health Act l983 (MHA)

The claimant was convicted of three counts of manslaughter at the Central Criminal Court on 13 November l987 and the court, being satisfied that he was a person who at that time was "suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment .... of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment ....", made an order under Section 37 of the MHA. Further, the court was satisfied that he should be subject to special restriction, because it appeared to the court, " ... having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, "that it was necessary" for the protection of the public from serious harm so to do. It therefore provided that his discharge should be restricted "without limit of time". As a result the claimant can only be transferred by decision of the Secretary of State and not by order of the Mental Health Review Tribunal (MHRT) who may recommend but cannot order such transfer. It should be noted that, according to the information before the court, up to eighty per cent of patients have been convicted of criminal offences.

3. The purpose of the Directions can be taken from Direction 4 which, under the heading, "Conditions of Safety and Security", provides:

"4. In order to promote conditions of safety and security in Ashworth, Broadmoor and Rampton Hospitals, each hospital authority is directed to exercise its functions in connection with the provision of high security psychiatric services in accordance with these Directions."

According to the evidence in the case (and it is well known) the three high security hospitals provide the most secure hospital settings available in the National Health Service and cater for the most dangerous group of mentally disordered people accommodated in the National Health Service. The hospital aims to have security provision equivalent to a category B prison, with special provision for "high risk" patients, for whom a category B status might not be appropriate.

4. Article 8 of the ECHR under the heading "Right to respect for private and family life" provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

5. The power to make Directions is particularly apt to enable the Secretary of State to delegate his functions relating to the health service to an authority and to impose a duty on the body in question to comply with the Directions. In this instance his duty to provide and maintain establishments for treatment under conditions of high security of persons having dangerous, violent or criminal propensities has been delegated to the special authorities for the hospitals. Whilst neither the National Health Service Act nor the Mental Health Act contain provisions relating to the interception of telephone calls, Section 4 of the 1977 Act lays down that hospitals provided under the section must treat patients under conditions of high security and it is obvious that the scope of that power must extend to the interception of telephone calls. Equally it is obvious from the Directions, in particular Direction 4, that the Secretary of State has decided that in order to achieve the legislative purpose of providing and maintaining establishments, having "conditions of high security" for persons of dangerous, violent or criminal propensity, implementation of the security measures set out in the Directions is or may be required.
6. The provision under challenge is one of a variety of security measures provided for by the Directions. Direction 5 stipulates the manner in which rub down searches of patients should take place. Direction 6 directs that random and routine searches of patients and their rooms and lockers should take place not less than once a month. A random rub down search is required not less than once a month and the patient's locker is to be searched at the same time. Routine searches are to take place after a visitor has been received or after a patient's leave of absence. The regime for searches is comprehensive and intense. For example, the hospital authority must ensure that on all occasions where more than one patient at a time moves from one patient area to another, at least one patient from any group of up to nine patients should be selected randomly for search, and at least ten per cent of any group of ten or more patients must be selected randomly for search (Direction 7). Members of staff are to be subjected to a search regime, similarly contractors, visitors and visiting children. Specific provision is made for testing patients for illicit substances. Direction l4 provides:

"1. Each hospital authority shall make the following arrangements for testing patients at the hospital for illicit substances.

2. A member of staff shall request a sample -

(a) each month from 5 per cent of patients selected randomly on random occasions, and

(b) from each patient at the time of admission to the hospital.

3. A member of staff may request a sample from a patient who is suspected of using illicit substances.

4. A member of staff shall request the patient to provide a fresh sample, free from adulteration.

Specific provision is made for the establishment and maintenance of a security intelligence system. Security information is defined as including information on

"(a) plans for patients to escape from the hospital;

(b) possible disturbances in the hospital;

(c) arrangements for unauthorised items to be brought into the hospital;

(d) matters which could threaten the well-being of a patient or a member of staff or other persons; and

(e) patient allegiances and behaviour which in the opinion of the security director may have security implications."

A patient's access to computer equipment is restricted and no patient has access to any equipment which gives him access to the Internet. Mobile telephones are not permitted to a patient, nor is a visitor entitled to carry one into any secure area, nor is any member of staff to carry a mobile telephone into a secure area unless permission has been obtained

Some particular points emerge from the above; first, the intensity of the regime of control over and the far reaching extent of the interference with the liberty of patients. Secondly, the deliberate inclusion of a random element in the measures which have to be taken. Thirdly, the necessity for specific provision to be made to prevent the importation into the hospitals of illicit substances.

7. The Directions require each patient to be made the subject of a risk assessment (Direction 30). The aim of the assessment is to determine whether the patient presents high risk of:

"(a) immediately harming others;

(b) committing suicide or self harming;

(c) being assaulted;

(d) escaping; or

(e) organising action in collaboration with others to subvert security and safety".

A risk assessment once completed leads to a management plan for the patient. Direction 30(3) provides that, where appropriate, the management plan must cover whether there is a need for monitoring the telephone calls of the patient. Thus the Directions recognise the potentiality for telephone calls to further all or any of the risks identified in Direction 30(2) and all or any of the security factors identified in Direction l7(3). There is no challenge to the rationality of the link made by the legislation in connection with "high risk" patients but the challenge to random monitoring of non "high risk" patients involves a contention that there is insufficient evidence to link the measure to a security objective. This contention gives rise to the need to consider relatively recent events, which have demonstrated that the uncontrolled use of telephones at Ashworth contributed to very serious breakdowns in the security and management of the hospital.

8. The claimant has not been assessed as high risk. Had he been so assessed, his clinical team would have had to decide, in consultation with a member of the security department, whether there should be included in his risk management plan, arrangements for authorised members of staff to record and monitor his outgoing and incoming telephone calls whilst in progress. The evidence suggests that if a high risk assessment is made, invariably the patient's telephone calls will be recorded and monitored whilst in progress. However, communications between the patient and his solicitor or legal adviser will be excluded from such surveillance. It is an important step in the argument for the claimant that, although he has not been assessed as high risk, nonetheless, his privacy will be interfered with by the implementation of Direction 29(3). It provides as follows:

"Subject to sub-paragraphs 4 and 5 and in addition to the calls which are recorded and monitored under sub-paragraph 1, authorised members of staff may record a random l0 per cent of the outgoing and incoming telephone calls of patients and may subsequently listen to the recorded calls."

At the time this application for judicial review was issued the claimant believed that this monitoring would extend to privileged conversations between himself and his solicitor or legal adviser, but sub-paragraph 4 of Direction 29 makes it plain that they are not included. Sub-paragraph 5 directs:

"(b) that all patients other than those whose calls are recorded and monitored under sub-paragraph 1, and the persons to whom a patient is permitted to make calls, are warned of the provisions of sub-paragraph 3."

Sub-paragraph 6 confers a power for the storing of the records of telephone calls for some specified period of time and otherwise for destruction.

9. It is plain and not in dispute that Direction 29(3) interferes with the claimant's right to privacy under Article 8 of the ECHR. The National Health Service Act and the Mental Health Act and the Directions must be read and have effect in a way which is compatible with Article 8. The claimant's case is that Direction 29(3) is an interference which cannot be justified under Article 8.2 being disproportionate and unnecessary to achieve a legitimate aim. The principles which govern the court's approach in determining such an issue are not in dispute. They are:

(1) When considering whether an interference with a Convention right is proportionate the burden lies on the State to justify its actions.

(2) The interference must go no further than is strictly necessary to achieve its permitted purpose.

(3) The more substantial the interference the more that is required to justify it.

(4) The court should anxiously scrutinise a decision of the executive which interferes with Human Rights and should consider applying an objective test "whether the decision maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention".

(5) The mode of such objective review is more intrusive, or it could be said, more demanding than the conventional Wednesbury test.

(6) The court should give due deference or allow a margin of appreciation to the decision maker.

Submissions

10. The steps in the claimant's arguments can be summarised as follows:

(1) The extent of the risk presented by the claimant should be personally assessed and catered for by an appropriate measure. Blanket monitoring imposed without reference to a personal assessment constitutes a disproportionate interference with his right to privacy under Article 8.

(2) Since he has not been assessed as high risk in accordance with the Directions, and the MHRT has recommended that, subject to certain conditions being satisfied, he could be considered for transfer to less secure conditions, such risk as he could properly be assessed as presenting was sufficiently met by the panoply of search powers provided for in the Directions and the restrictions upon the use of telephones in force at Ashworth, which include a personal code number (PIN) and calls to only approved telephone numbers.

(3) The lawful exercise of power in connection with the claimant required particular attention to be paid to his needs as a member of an ethnic minority from overseas who depended to a great extent upon the limited contact he was able to have by telephone with his mother and his sister, which contact would be interfered with by the implementation of blanket monitoring.

(4) The Secretary of State had paid excessive regard to security considerations and failed to adequately take into account the need for satisfactory therapeutic conditions to be maintained for patients at Ashworth. Reliance was placed upon a written opinion of a psychiatrist, Dr Vincenti, whose report was lodged shortly before the hearing. It suggested that knowledge on the part of patients suffering from mental disorder, in particular paranoia and schizophrenia, that calls were being monitored, could significantly impair their treatment and recovery. It is convenient to observe at this stage that the report is in very general terms. It is made without reference to the range of expertise required in assessing all the needs of patients at Ashworth. Its psychiatric expertise embraces the general and the conclusions may well go beyond the cogency of the material relied upon.

(5) There was an absence of evidence pointing to a pressing or compelling need for random monitoring of non-high risk patients. The evidence did not disclose a sufficient connection between the monitoring and the security risk to which it was directed.

(6) It was disproportionate because although designed to comprise less than one hundred per cent actual interference, its random character, coupled with a warning, was calculated to inhibit every phone call and would therefore interfere with every phone call.

11. Counsel for the hospital authority, Miss Weereratne, submitted:

(1) The proposed random monitoring was a proportionate measure in pursuance of a legitimate aim in the context of a high security psychiatric hospital.

(2) The evidence received and evaluated by the Committee of Inquiry into the Personality Disorder Unit, Ashworth Special Hospital (the Fallon Inquiry), demonstrated the serious criminal activities which patients are capable of engaging in and the part which can be played by the use of telephones in furthering such activities. The Committee recommended that monitoring of telephone calls should take place.

(3) The Report of the Review of Security at each of the high security hospitals (the Tilt report) being an in depth and painstaking assessment had concluded, after receiving evidence from the hospital authorities, that random monitoring of telephones was required.

(4) Neither Fallon nor Tilt concluded that the security risks in connection with the use of telephones were confined to high risk patients. Their recommendations extended to all patients, with special consideration being required for high risk patients.

(5) The hospital authority, being the body best placed to make the assessment, had concluded that for the present time it was not necessary to commence ten per cent random monitoring unless a potential threat to hospital security was suspected, appeared possible, or had otherwise been identified based on information which had been received. A reduction in the actual use of monitoring, although not likely to affect the patient's perception of being monitored all the time, would serve to reduce the incidence of abuse because there would be a requirement for authorisation by the Chief Executive, Director of Security or a nominated deputy.

(6) Monitoring was capable of enhancing rather than providing a barrier to the therapeutic activities of the hospital.

12. Counsel for the Secretary of State, Mr Forsdick, submitted:

(1) All patients in Ashworth are within the category of patients who require high security.

(2) The Secretary of State had not decided to transfer the claimant to a lower category hospital. The recommendation of the MHRT was conditional and was ineffective to place the claimant in a category which set him apart from the class of patients defined in S.4 of the 1977 Act.

(3) There was an overwhelming need for restrictions on individual liberty of patients in high security hospitals and both the Fallon and Tilt reports bore out the need, including the need for the monitoring of telephone calls.

(4) Having regard, in particular, to the approach of Fallon and Tilt and the evidence before the court, it was plain that a balance had been struck between therapeutic and security needs.

(5) The Tilt inquiry team met patients and talked to Patient Councils. The Secretary of State had consulted with the hospitals and the Mental Health Act Commission. He had taken account of representations received from one patient's representative. Apart from the written opinion, served and delivered shortly before the hearing, which raised no particular case for the claimant, but sought to raise a general case for a possible detrimental impact on the health of patients, there was no material to contradict the weighty and authoritative conclusions which had been reached by Fallon, Tilt, the Secretary of State, and the hospital authority.

13. All counsel, very properly, made limited reference to case law. Illumination and authority for the principles summarised in paragraph 8 above can be found in R v Secretary of State for the Home Department, ex parte Isiko CA 20.12.2000. Miss Booth QC, counsel for the claimant, referred to Halford v United Kingdom 1997 24 EHRR 523, which illustrates the application and effect of Strasbourg jurisprudence when applied to telephone interception, illustrating the need for domestic law to provide some protection to the individual against arbitrary interference with Article 8 rights and the need for the law to be sufficiently clear as to the circumstances in and conditions on which public authorities are empowered to resort to such secret measures. Reference was also made to R v Broadmoor Special Hospital Authority and another ex parte S H & D (CA 5 February 1998).

Conclusions

14. In my judgment the fact that the claimant has not been assessed as high risk and is the beneficiary of a conditional recommendation for transfer to a lower security hospital cannot bear the weight Miss Booth has sought to place upon these factors. The claimant has the status and is within the category of persons defined by Section 4 of the 1977 Act, notwithstanding that others in that category present a significantly higher risk.
15. The Secretary of State has, for the purposes of determining the degree of interference which should occur, drawn a distinction between "high risk" patients and other patients. Had the distinction been of no real consequence, different considerations may have arisen, but whilst I accept that the measure is likely to have the effect of inhibiting all telephone calls, the degree of interference with the claimant's Article 8 rights does not fall to be assessed exclusively by reference to his perception of the degree of interference, and his reaction to the interference. A proper assessment of the degree of interference must include taking account of the level of actual monitoring. The substantial mischief against which Article 8 provides protection is the accumulation of private information by a public authority. It follows that the difference between the treatment to be accorded to high risk patients and the claimant is real. The treatment also reflects the different assessment. No risk that the purpose of a telephone call will be abused is accepted for the former, but the risk that the latter could abuse up to ninety per cent of their calls has been assessed as acceptable and capable of being met by random monitoring. Manifestly the consequent reduction in actual interference is significant. It can also be said that the measure exemplifies the concept of tailoring the measure to the aim to be achieved. It achieves its aim of meeting the assessed security risk by limited actual interference. Further, I accept the validity of the proposition that the limit on actual interference and the process of authorisation which it entails, will reduce the opportunity for abuse of power.
16. The Secretary of State drew upon the Fallon and Tilt reports. He would have been open to challenge had he failed to do so. The reports include the following passages which are pertinent to the issues in this case:

Fallon

•    "1.22.1 .... Approximately 80 per cent of patients have been convicted of a criminal offence, most of whom are subject to restriction orders. The average length of stay is eight years, but a small number of patients will never be regarded as ready to leave and will spend the rest of their lives at Ashworth."

•    "1.22.3 .... Most, if not all, have extremely disordered personalities and many have a history of very serious and violent offending. They tend to test boundaries between staff and patients to destruction and undermine, sometimes even corrupt their carers and therapists."

•    "1.22.15 .... The issues examined by the Ashworth Panel of Commissioners within the last two years include the misuse of drugs ... In relation to the Owen Ward Inquiry, Mr Peterson told us that the MHAC had told the Security Department of their concerns over illicit substances coming into the hospital."

•    Between paragraphs 2.0.17 - 2.1.37, the Committee dealt with "The Conflict between Security and Therapy".

•    Under the heading, "Rights and privileges" ............"

•    "2.10.13 .... In order to understand people's rights and privileges, it is necessary to bear in mind their jurisprudential meanings ...."

•    "What was wrong was to call "privileges" "rights" and to do so throughout the hospital. Thus everyone became entitled to privileges" as of right". There is an essential difference between being allowed access to a telephone because you are considered trustworthy and being allowed access to one because it is said to be everyone's right."

•    "2.12.28 .... In the Special Hospitals there are fundamental requirements of security that must prevail and be seen to prevail. For too long there has been uncertainty in this important area."

•    "2.12.37 .... We recommend that it is essential to control and monitor the use of ward based telephones carefully in order to prevent abuse, control fraud and prevent the introduction into the Hospital of prohibited substances and articles."

•    "3.39.20 We recommend:

(a) no modems whether external or internal should be permitted in ward areas;

(b) patients' access to telephones should be limited to:

(i) telephone numbers on the list of the patient's list of approved numbers;

(ii) all telephone calls by patients should be carefully monitored, except privileged calls, such as those to legal advisers, in which cases the number should be dialled by a member of staff who, having done so, should retire out of ear-shot, but maintain observation to ensure no other number is dialled;

(iii) telephone points in ward visitors' rooms should be removed;

(iv) permitting external telephone engineers to control the Hospital's telephone exchange should be reconsidered.

Tilt

•    "High risk" patients:

"7.5 The presence of some 50 patients equating to Category A status in the high security hospitals led us to consider whether there might be a small number of patients, not necessarily all included in that 50, who, because they pose a particularly high risk and a higher risk than the majority of the patients, might require an even higher level of physical security than the standard for the hospital as a whole. We had in mind patients who are seen as presenting a particularly serious risk of escape, or of danger to other patients and staff and who, were they unlawfully at liberty, would be likely to kill or seriously injure members of the general public, or commit serious sexual attacks. One possible way of dealing with this group would be a specially constructed small unit built to higher physical security standards than the rest of the hospital. We concluded, however, given the security upgrading we are recommending, that this higher risk could adequately be met by making special procedural security arrangements for such "high risk" patients, obviating the need for any additional extra strengthening of physical security. The Review Team therefore recommend that a procedure should be set up for the hospitals to identify "high risk patients, and we include specific reference to such patients in some of our other recommendations."

•    Mandatory testing for illicit substances:

"10.6 All three high security hospitals take steps to prevent the entry of illicit drugs, and other illicit substances, into the hospitals. It is not, however, possible to totally eradicate the presence of such substances and it is generally accepted that some patients will inevitably gain access to illicit substances from time to time. We heard varying views about the extent to which illicit substances can be obtained by patients in the hospitals but some staff and patients expressed significant concerns to Review Team members about the threat which the availability of illicit substances poses to safety and security within the hospitals."

"10.7 The hospitals do not currently have consistent approaches to testing for illicit substances, and the Review Team were unable to quantify the extent of the presence of illicit substances within the hospitals, and the danger presented, with any degree of certainty. We obtained advice on the legality of mandatory testing for illicit substances and, whilst we appreciate that the legal position is not entirely clear cut, we nevertheless feel sufficiently concerned about the potential dangers which the taking of, and trafficking in, illicit substances might present in a high security hospital setting to recommend that the feasibility should be examined of requiring each of the hospitals to carry out:-

i. Random mandatory testing of a percentage of the hospital population each month.

ii. Targeted testing of patients in respect of whom there are particular suspicions.

iii. Routine testing of all new admissions.

•    Direction 24:

"Broadmoor and Rampton Hospitals should introduce a PIN number telephone system similar to the one used at Ashworth Hospital.

"All "high risk" patients' telephone calls should be recorded, and monitored while in progress, and other patients' telephone calls should be recorded and subsequently listened to on a random (10%) basis. Patients should be made aware of the possibility of their telephone calls being recorded and listened to. Observation of telephone calls for security purposes can then be discontinued (although there may be clinical reasons why some patients should continue to be observed while making telephone calls)."

17. I am unable to accept the submission that the Secretary of State paid too little regard to therapeutic considerations. Fallon weighed the considerations of security and therapy. Tilt was principally concerned with security issues but the review included Mike Preston, Business Manager, High Security Psychiatric Services Team, as Secretary to the Team. He has made a witness statement on behalf of the Secretary of State, which discloses that the Team made numerous trips to all three hospitals, making visits to wards and speaking to staff and patients. Further, he points out that the Secretary of State issued guidance to accompany the Directions. Paragraph 4 stated:

"The Directions and guidance cover minimum physical and operational standards of safety and security. They do not focus on the therapeutic aspects of the work of the hospital authorities. The intention is, however, that their implementation will, in contributing to the provision of a safe environment for patients and staff, enhance rather than provide a barrier to, therapeutic activities of the hospital."

In my judgment the considerations of treatment and security are almost inextricably connected. The provision of treatment is dependent upon adequate security and since the law requires a balance to be achieved, short of material demonstrating that a particular adverse therapeutic consequence had been ignored, the challenge faced insuperable difficulties. No doubt, it was the realisation that this was the position, which led to the late service of the expert opinion from a psychiatrist, but this was, for the reasons I have already indicated, wholly inadequate to make the case. I am unable to detect any flaw or lack of balance in the approach adopted by the Secretary of State when weighing the interests of security and treatment.

18. As to the therapeutic consequences of random monitoring on the claimant, Dr Vincenti cannot advance the claimant's case. The claimant mentions the significance of his conversations with his mother and his sister: "I like to think that I can speak to them both privately and the thought that someone is listening affects the openness of conversation of both parties". But this evidence does not raise a therapeutic issue, but serves to illustrate the particular impact the interference will have upon him. To this, it is said, should be added the consideration that he has greater need for contact with his family than others. I do not doubt the need and have taken account of it in assessing the degree of interference with his rights, but it fails to establish the existence of a therapeutic consequence to the claimant, which the Secretary of State or the hospital authority have overlooked. In my judgment the therapeutic consequences to all patients (including the claimant) have been adequately considered. I am satisfied that no circumstance has been established which takes the claimant outside the category of patients who present a security risk and that, whilst the interference may have consequences individual to the claimant, the consequences are neither unique in character nor disproportionately prejudicial.
19. The procedure for controlling telephone calls at Ashworth includes the use of a PIN number and approved numbers which the patient can call having dialled the PIN number. I accept that the system, advantageous as it is, cannot be regarded as foolproof against abuse and manipulation and that the defendants were entitled to take account of the risk of abuse and manipulation. Whilst a call can only be made to an approved number, there is limited control over who participates in the call, either from the hospital or at the premises to which the call is made.
20. In my judgment the material before the court demonstrates that the Secretary of State was entitled to conclude that there was a compelling need for the special hospitals to have the power to implement random telephone monitoring. It is clear, for example, that the presence of illicit substances in the hospitals can be readily facilitated by use of the telephone. Each of the security risks identified in the Directions present the same potential for being furthered by the use of the telephone. Having regard to the extent of the threat, the established degree of manipulation which can occur and the possible serious consequences to patients, staff and members of the public, I am unable to conclude that the defendants have over-reacted in their assessment as to what is required.
21. The present assessment of the hospital authority at Ashworth is that random monitoring need only occur when circumstances exist giving rise to particular security considerations. It is suggested that random monitoring is too imprecise a response to known or suspected circumstances because they are likely to call for specific measures to be taken. In my judgment the obligation not to interfere with human rights save to a degree necessary to achieve a permitted purpose does not place a straitjacket upon public authorities, the design of which is dictated by the exercise of objectively, reasonable prescience and considerations of a range of certainties. A risk assessment involves regard being paid to the possibility of an event occurring in circumstances which are not foreseeable and which cannot be predicted with any degree of precision. The assessment will involve a significant element of subjectivity. The jurisprudential definition or recognition of this subjectivity is the doctrine of the margin of appreciation. None of the matters raised, in my judgment, suggest that the defendants' margin of appreciation has been exceeded.
22. Having scrutinised the material in the case and adopting the approach set out in paragraph 8 above, as illuminated by Isiko, I have concluded that:

(1) the provision for random monitoring is directed to a legitimate aim, namely the discharge of the duty imposed by S.4 of the 1977 Act;

(2) there exists cogent and compelling evidence, sufficient to justify the conclusion that patients in high security hospitals are likely, unless prevented, to abuse the use of telephone calls in a manner which will give rise to security risks to themselves, other patients, staff and members of the public;

(3) random monitoring, whilst an interference with patients' Article 8 rights, goes no further than is strictly necessary to achieve the permitted purpose;

(4) the claimant is within a category of patients who are dangerous and have violent and criminal propensities. There is no evidence which goes anywhere near providing justification for him being regarded as outside the category;

(5) the evidence establishes that random monitoring will achieve a legitimate security aim and that the Secretary of State has established the existence of a compelling need for the measure, which is proportionate to the aim to be achieved.

For all the above reasons this application for judicial review is dismissed.