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||Neutral Citation Number:  EWHC 373 (Admin)
||Case No: CO/3156/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
MR JUSTICE SIMON
|| The Queen on the application of Mohammed Gul
||- and -
||Secretary of State for Justice
National Probation Service
Hugh Southey QC (instructed by Irvine Thanvi Natas) for the Claimant
Stephen Whale (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 4 February 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Beatson :
I. Overview of questions for decision and conclusions:
- The claimant, Mohammed Gul, was convicted of five counts of disseminating terrorist publications contrary to section 2 of the Terrorism Act 2006 and sentenced to a term of imprisonment of five years. His offence consisted of posting films on YouTube and other websites of material showing footage of attacks on military targets, and images of armed conflicts including those in Afghanistan, Chechnya, Gaza, Iraq and Lebanon, and improvised explosive devices being used against United States, British and other Coalition forces. He was released from prison on licence on 6 July 2012. Taking account of time spent on remand, his sentence and licence period expires on 6 January 2015.
- In these proceedings, he challenges two of the licence conditions imposed on him by the first defendant, the Secretary of State for Justice ("the Secretary of State"), pursuant to section 250 of the Criminal Justice Act 2003 ("the 2003 Act") and the Criminal Justice (Sentencing) (Licence Conditions) Order 2005 SI 2005 No. 648 ("the 2005 Order"). The 2005 Order was made in the exercise of the Secretary of State's power under section 330 of the 2003 Act to prescribe what the Act refers to as "standard conditions", which must be included in a licence, and "other conditions", which may be included as additional conditions. Save for excepted categories of prisoner, section 244(1) of the 2003 Act imposes a duty on the Secretary of State to release a fixed-term prisoner who has served the requisite custodial period of his sentence on licence. The second defendant is the National Probation Service, and it is the London Probation Trust which supervises the claimant.
- The two conditions challenged are not "standard conditions", but "other conditions" imposed because of the nature of the claimant's offences. Condition 5(x) provides that the claimant must not:
"attend or organise any meetings or gatherings other than those convened solely for the purposes of worship without the prior approval of [his] supervising officer".
Condition 5(xii) provides that the claimant must not:
"have in [his] possession any printed or electronically recorded material or handwritten notes which…promote the destruction of or hatred for any religious or ethnic group or that celebrates, justifies or promotes acts of violence, or that contain information about military or paramilitary technology, weapons, techniques or tactics, without the prior approval of [his] supervising officer".
- In what was a very wide-ranging challenge on behalf of the claimant, Mr Southey QC contended that, at common law, conditions 5(x) and 5(xii) are ultra vires as being made without legal authority, and also violate common law principles requiring certainty. He also contended that they violate Articles 8, 10 and 11 of the European Convention on Human Rights ("ECHR"), because they are not in accordance with the law, or if they are, they disproportionately interfere with the claimant's rights under those provisions. The third limb of his challenge is the submission that the conditions were tainted by procedural unfairness because the claimant was not invited to make representations before the defendants set them. This last point is largely advanced as an aspect of the implied procedural safeguards required by Article 8 of the ECHR. Formally, this challenge is only to the two conditions, and Mr Southey sought to downplay the impact of his submissions on the standard conditions of licences. But, if accepted, his submissions would put into question the legality of many of the other conditions, including a number of the standard conditions. This challenge thus has implications for the entire system of release on licence subject to conditions.
- For the reasons I give in section V of this judgment, I have concluded that the claim should be dismissed. I consider (see  – ) that the contention that the process for determining licence conditions is procedurally unfair is utterly misconceived, and (at  – ) make two observations about the way this part of the case was handled. For the reasons given in  – , the conditions challenged do not violate common law principles of "certainty" and there is, in my view, legal authority for them. Notwithstanding a degree of doubt (particularly in relation to Article 8), for the purposes of these proceedings I am prepared to assume that Articles 8, 10 and 11 of the ECHR are "engaged", in the sense that the two conditions challenged restrict rights protected by those provisions and thus interfere with them. However, for the reasons given in  – , I am satisfied that any interference with those rights is in accordance with the law and for those given in  –  that it is not a disproportionate interference, and is therefore justified. I would therefore dismiss this application.
II. These proceedings:
- These proceedings were issued on 15 March 2013, some nine months after the claimant's release and the inception of the licence and its conditions. The explanation given for the delay is that the claimant's application for legal aid funding, made on 23 August 2012, was refused by the Legal Services Commission on 8 October 2012. It was not until 6 February 2013, following a successful appeal, that legal aid was granted to the claimant. On 23 May 2013 an order made by Collins J stated that "permission is hereby granted". Paragraph 5 of his observations, however, stated that "there is no merit in the contention that there has been no involvement of the claimant in advance". The words of the order do not qualify the grant of permission, but it is clear from paragraph 5 of Collins J's observations that he did not intend to give permission on the "procedural unfairness" ground. Mr Southey maintained that permission had been given, and that the court should not take into account the observations, but accepted that, if the hearing of this part of the claim proceeded as a "rolled-up" hearing, the claimant would not be prejudiced.
- When these proceedings were filed, the evidence in support of the application consisted of the attestation on the form N461 by the claimant's solicitor that the statement of facts in section 8 of the form were true. The claimant has only recently filed a statement. This, made on 3 January 2014, states that it is made in response to the defendants' detailed grounds which were filed six months earlier on 5 July 2013. The case management directions required the claimant to lodge an application to file further evidence within 21 days of the service of the detailed grounds; i.e. by about the end of July 2013. No reason was given by the claimant for the delay before or at the hearing. On 29 January 2014, seven days before the hearing, the Secretary of State applied for an adjournment because it had not been possible to finalise instructions, and written evidence in response to the claimant's statement, and consequently not possible to complete a skeleton argument. That application was refused. A statement, dated 3 February 2014, of Cynthia Tuitt, the manager responsible for the supervision of the claimant's licence, was filed shortly before the hearing.
III. The legal and regulatory framework
- The material parts of section 250 of the 2003 Act are:
"(1) In this section –
(a) 'the standard conditions' mean such conditions as may be prescribed for the purposes of this section as standard conditions, and
(b) 'prescribed' means prescribed by the Secretary of State by order…
(3) Any licence under this chapter in respect of a prisoner serving a sentence of imprisonment…
(a) must include the standard conditions, and
(b) may include –
(ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of this paragraph as the Secretary of State may for the time being specify in the licence.
(8) In exercising his powers to prescribe standard conditions or the other conditions referred to in sub-section (4)(b)(ii) the Secretary of State must have regard to the following purposes of the supervision of offenders while on licence under this chapter –
(a) the protection of the public,
(b) the prevention of re-offending, and
(c) securing the successful re-integration of the prisoner into the community."
- By section 330 of the 2003 Act, the power conferred on the Secretary of State to make an Order is exercisable by statutory instrument subject to the negative resolution procedure in either House of Parliament. The prescription of conditions is contained in the 2005 Order. Article 2 of the 2005 Order specifies the standard conditions to be contained in a licence and Article 3 the "other conditions". Article 2 provides that the standard conditions are to:
"(a) keep in touch with the responsible officer as instructed by him;
(b) receive visits from the responsible officer as instructed by him;
(c) permanently reside at an address approved by the responsible officer and obtain the prior permission of the responsible officer for any stay of one or more nights at a different address;
(d) undertake work (including voluntary) only with the approval of the responsible officer, and obtain his prior approval in relation to any change in the nature of that work;
(e) not travel outside the United Kingdom without the prior permission of the responsible officer…;
(f) be of good behaviour and not behave in a way which undermines the purposes of the release on licence, which are to protect the public, prevent re-offending and promote successful re-integration into the community;
(g) not commit any offence."
- Article 3(2) provides that the "other conditions" about the offender are:
"(a) a requirement that he reside at a certain place;
(b) a requirement relating to his making or maintaining contact with a person;
(c) a restriction relating to his making or maintaining contact with a person;
(d) a restriction on his participation in, or undertaking of, an activity;
(e) a requirement that he participate in, or co-operate with, a programme or set of activities designed to further one or more of the purposes referred to in section 250(8) of the Act;
(f) a requirement that he comply with a curfew arrangement;
(g) a restriction on his freedom of movement, which is not a requirement referred to in sub-paragraph (f);
- The last element of the legal framework is Probation Instruction 07/2011 ("the Policy"), issued on 21 April 2011 and published on the internet. This contains advice for the setting of conditions and a menu of the additional conditions available to facilitate the effective management of risk in respect of offenders on licence and, if necessary, in respect of extremist offenders: see paragraphs 1.2 and 1.3.
- I stated (at ) that it is the Secretary of State who imposes the licence conditions. Before summarising the provisions of the Policy, I should explain how the process works and the roles of the different agencies. The process was summarised in R (Ahmed) v National Probation Service and Secretary of State for Justice  EWHC 1332 (Admin) at  and R (Tabbakh) v Staffordshire and West Midlands Probation Trust, Secretary of State for Justice, and London Probation Trust  EWHC 2492 (Admin) at  and . Additional licence conditions are formally imposed by the Secretary of State upon the recommendation of the relevant branch of the National Probation Service. The standard practice is that, while the offender is in prison, his or her Offender Manager makes recommendations as to the conditions to the Governor of the prison as the representative of the Secretary of State. In some cases, the offender is also subject to the Multi-Agency Public Protection Arrangements ("MAPPA") and a MAPPA panel will make recommendations. In deciding on conditions, the Governor is guided by the relevant Probation Trust, since it is the body responsible for undertaking the risk assessment which informs the licence conditions.
- The section of the Policy on conditions for extremist offenders makes it clear (in paragraph 2.25) that additional conditions must only be used "where they are necessary and proportionate". Those terms are explained in paragraph 2.15. Paragraph 2.15 states that "necessary means that the condition is necessary to enable the Offender Manager to manage the risks identified within the risk management plan, and no other less onerous risk will suffice". The condition "must be needed to allow for effective management of the offender". "Proportionate means that any restriction or loss of liberty arising from the imposition of the condition is proportionate to the level of risk presented by the offender" and "no other less intrusive means of addressing the risk is available or appropriate".
- Paragraph 2.26 of the Policy states that "pre-release planning for extremist offenders should start with a multi-agency meeting at least six months before release". Paragraph 2.40 deals with explanation of licence conditions to offenders. It states that staff must ensure that the offender understands such conditions and that this is particularly important with additional and bespoke conditions as they may contain complex or detailed requirements. Paragraph 2.16 states that an Offender Manager requesting the Governor on behalf of the Secretary of State to impose additional licence conditions "must provide a full explanation as to why [they] are deemed necessary and by the required deadline of no later than 28 days before the offender's release". Paragraph 2.41 deals with the position after release. It states that Offender Managers must ensure additional or bespoke licence conditions are regularly reviewed to ensure that they remain both necessary and proportionate.
- The additional licence conditions available for extremist offenders are contained in Annex B. The introduction to Annex B states that these conditions "may be used in addition to" the additional licence conditions at Annex A "providing proportionality is met". It also states that "extremist offenders may pose specific risks which cannot be sufficiently managed by the application of conditions designed for other offending groups" and the list in Annex B was prepared to address the risks that had been identified and "should significantly reduce the need for bespoke conditions". It is also made clear that a case must be made for the application of the additional conditions to each individual offender, and the Offender Manager must have clear evidence that they are necessary and proportionate, and should review all conditions on a regular basis and evidence that this has been done.
- The additional licence conditions for extremist offenders include:
"2, Non-association requirement:
Not to attend or organise any meetings or gatherings other than those convened solely for the purposes of worship without the prior approval of your supervising officer.
3, Restricted activity:
(c) Not to have in your possession any printed or electronically recorded material or handwritten notes which contain encoded information or that promote the destruction of or hatred for any religious or ethnic group or that celebrates, justifies or promotes acts of violence, or that contain information about military or paramilitary technology, weapons, techniques or tactics without the prior approval of your supervising officer."
- The advice given about condition 2 is that the exclusion of places of worship from the condition could be removed if there is a concern that it would undermine the purposes of supervision, but that would need to be clearly articulated. It is also stated that account has to be taken of the nature of the offending to check that the condition is justified. As to condition 3(c), it is stated that it is the nature of the offending and evidence from the circumstances of the index offence that justifies the need for this condition.
IV. The material facts:
- The remainder of the material facts can be summarised briefly. The claimant, now aged 25, was convicted on retrial at the Central Criminal Court on 24 February 2011. Appeals against his conviction were dismissed by the Court of Appeal on 22 February 2012 ( 1 WLR 3432) and, after the institution of these proceedings, by the Supreme Court on 23 October 2013 ( UKSC 64).
- At some stage before the claimant's release, he was assessed using the OASys assessment tool. He is assessed as posing a "High Risk of Causing Serious Harm". The assessment was not before the court, but paragraph 23 of the defendant's detailed grounds of resistance stated that in his second note in reply to the defendant's summary grounds, the claimant in effect conceded that he poses such a risk. That statement was not contested in the recently filed evidence or in Mr Southey's submissions.
- In preparation for the claimant's release on licence, he was visited in prison on three occasions by probation officers, including Ms Tuitt, the manager responsible for his supervision. Her evidence is that she first met the claimant on 19 April 2011 for a Multi-Agency Assessment and Sentence planning meeting at which the generality of licence conditions, including the standard conditions and those tailored to the claimant's offences, were discussed.
- Ms Tuitt's evidence is that the second meeting was on 13 December 2011. She met the claimant with two of her colleagues, one of whom was from the Probation Service's "Central Extremism Unit". Again, licence conditions and possible release addresses were discussed. She states that on this occasion she and the officer from the Central Extremism Unit went through each of the individual licence conditions with the claimant, including conditions 5(x) and 5(xii) which are now challenged. Her evidence is (see paragraph 2.3 of her statement) that the claimant did not dispute either of those conditions or raise them for discussion. He wanted to discuss other conditions; namely those concerning where he would live, electronic tagging, and the mosques that he wished to attend. She states that those issues were discussed in some detail, that she told the claimant she would seek clearance for his requests, and that he indicated that he would comply with all requirements.
- The third prison visit by Ms Tuitt was on 11 June 2012, shortly before the claimant's release. A note dated 14 June, three days after the meeting, was made by one of the officers present, probably but not necessarily Ms Tuitt. The note records that the officer from the Central Extremism Unit was present, as was a member of the prison psychology department, who attended at the claimant's request. It also states that the officers went through all the licence conditions with the claimant as the meeting would be the last time she would see him prior to his release, and that "the licence conditions were discussed and all agreed". What was discussed on this occasion, according to the note and Ms Tuitt's evidence, was the GPS tracking and whether, during the Olympic Games, the claimant was excluded from Stratford, where his solicitor was located. The note states that the claimant was not excluded but that it was suggested to him that, during the Games, he should meet his solicitor elsewhere because in Stratford he was likely to be detained by the police. Ms Tuitt's evidence is that again the claimant did not discuss conditions 5(x) and 5(xii). His evidence is that he was not asked for his views about the conditions.
- On his release, the claimant was served with the licence. He signed a copy of it acknowledging its receipt and that its requirements had been explained to him. The document is also signed by a prison governor. Since the claimant's release from prison, he has met with Ms Tuitt on a weekly basis.
- The next development was that, in a letter dated 6 August 2012, Irvine Thanvi Natas, the claimant's solicitors, wrote to the Probation Service raising concerns about the conditions. They asked for a number of them to be modified or removed "to ensure that the licence is proportionate to the ends sought". The solicitors stated they were concerned about the breadth and lack of clarity in condition 5(x), not to attend meetings or gatherings. They considered it appeared to be an absolute bar to him attending meetings with his legal team or probation officer and to require the prior approval of any meeting with a friend or a relative. The letter asked whether, if the claimant wished to attend an Arsenal football match at the Emirates Stadium, he would be required to give notice even though there was no intention to meet anyone in particular at the match.
- In relation to the obligation not to possess the materials specified in condition 5(xii), the letter stated that "it is clear that the purpose of the obligation is to prevent Mr Gul [from] possessing materials that are 'extremist' in nature". But, as drafted, the condition was insufficiently precise for the claimant to be able to foresee whether or not possession of materials would amount to an infringement of his licence and to enable him to regulate his conduct. It was, for example, arguable that reading a newspaper concerning the current events in Syria "may break" the condition, and "the breadth of the prohibition cover[ed] any historical account of military history, potentially including the Quran".
- Other concerns were raised in the letter. They concerned the place of worship, because the claimant wished to attend two mosques rather than the only one authorised at that time, the prohibition (in condition 5(xv)) on having a computer at his address without prior approval, and a point concerning his passport. These were addressed in the London Probation Trust's letter dated 6 September to which I refer below, and do not arise in these proceedings. It suffices to state that the Probation Trust granted the request to attend the second mosque, and stated that it did not have the claimant's passport, and that it had assisted the claimant in obtaining documentation necessary for him to apply for a bank account and jobseeker's allowance.
- There was no response to this letter and, in a letter dated 23 August, headed "Letter Before Claim", the points in the earlier letter, including the question about attending an Arsenal FC match and reading newspapers, were reiterated. The letter stated:
"it cannot be the intention of the licence to prevent Mr Gul from reading a newspaper or from observing his religious practice. We therefore request that you clarify the breadth of this obligation by either: (1) narrowing the provisions to unambiguous materials of concerns; or (2) removing the provision from the licence".
The solicitors stated that they were of the view that the matter would give rise to a judicial review.
- The London Probation Trust responded in a letter dated 6 September. This stated that attending a football match was considered to be a gathering for which permission was required. The condition was considered necessary and proportionate to manage the risk posed by the claimant's offending history. It was said that the claimant would be required to give sufficient time for his supervising officer to ascertain the nature of the meeting and to make a decision, and that the Probation Trust would endeavour to make a decision as quickly as possible.
- As to condition 5(xii), the possession of specified materials, the letter stated that the materials covered by the condition were "materials which could be reasonably used to promote violence". The request that the provision be removed was refused on the ground that the condition was considered necessary and proportionate to manage the risk posed by the claimant's offending history. The request to have a computer was also refused but it was stated that the condition was under constant review.
- There do not appear to have been any further exchanges between the claimant's solicitors and the defendant until a revised letter before claim dated 15 February 2013 was sent. There was no response to this, and, as I have stated, proceedings were issued on 15 March.
- (i) Procedural Fairness: I first deal with the contention that the process by which the conditions were determined was procedurally unfair. Mr Southey based his case on the implied procedural safeguards required by Article 8 of the ECHR rather than the common law's requirement of procedural fairness. He relied on R (Tabbakh) v Staffordshire and West Midlands Probation Trust  EWHC 2492 (Admin) at , R (SP) v Secretary of State for the Home Department  EWCA Civ 1750 at , and the decisions of the Strasbourg Commission in Application No. 8317/79 McFeeley v United Kingdom 15 May 1980, and the Court of Appeal in R (L) v West London Mental Health NHS Trust  EWCA Civ 47. He maintained that the defendants failed adequately to involve the claimant in the decision to impose the very restrictive conditions as part of his probation licence because he was given no opportunity to make representations before the conditions were imposed, as Cranston J envisaged were required in Tabbakh's case. This was because the process used meant that the decision-maker was likely to have a closed mind by the time the conditions were explained. Moreover, the claimant does not know whether the conditions have been imposed for reasons other than a concern about a risk posed by him of serious violence.
- Whether the submissions rely on the common law or Article 8, for the reasons I give below, it is, in my judgment, wholly unarguable, on the facts of this case that the process by which the conditions were determined for the claimant's licence was procedurally unfair. If, as I believe, on the true construction of Collins J's order and observations, permission to apply for judicial review has not been given on this ground, the proper order is to refuse permission. But, in the light of the ambiguity resulting from the unqualified nature of the order itself and because there has been full argument on this point, I would simply dismiss this part of the claim.
- I have referred (at  – ) to the three meetings the claimant had in the fifteen months before his release with his supervising officer and other probation officers and to the evidence of Ms Tuitt and the claimant about the meetings. To the extent that the claimant's evidence conflicts with that adduced by the defendants, it is well established that the court is obliged to take the facts as they are deposed to on behalf of the defendant: see the summary of the relevant authorities in Flattery v Secretary of State for Communities and Local Government  EWHC 2868 (Admin) at  – . But in fact, the claimant has not challenged Ms Tuitt's evidence. He simply contends that he was not asked for his views about the conditions.
- That submission ignores what procedural fairness requires. It is clear from decisions in the last sixty years that what is required is an opportunity to be heard, an opportunity to participate in the procedure by which the decision is made. It suffices to give two examples; the classic statement at the beginning of the period by Denning LJ in Abbott v Sullivan  1 KB 189 at 198, and the very recent statement of Lord Reed in Osborn v Parole Board  UKSC 61 at .
- The claimant had such an opportunity at the three meetings. He took it in relation to the conditions that were of concern to him. His representations had some, albeit a very limited effect. He failed to take the opportunity to make representations about conditions 5(x) and 5 (xii). At the first meeting, on 19 April 2011, the general thrust of the conditions, including those tailored to the claimant's offences, were discussed. At the other two meetings the officers went through all the licence conditions with him.
- Ms Tuitt, the claimant's supervising officer, stated at the second meeting that she would seek clearance for the requests he made. It is implicit from the note of the June 2012 meeting that in relation to meetings by the claimant with his solicitor, there was no problem although, during the Olympic Games, it might be better that such meetings did not happen in Stratford, where there would be heightened security. The first two meetings clearly happened before a final decision as to the conditions was made by the prison Governor on behalf of the Secretary of State on the advice of the Probation Service. The claimant has, as he is entitled to, now raised a substantive challenge to those conditions, which I consider below, but his failure to take the opportunity to make representations about conditions 5(x) and 5 (xii) is fatal to his submissions based on procedural fairness.
- Mr Southey can gain no assistance from the authorities upon which he relied, or the others before the court. I consider them chronologically. In R (Ahmed) v National Probation Service and Secretary of State for Justice  EWHC 1332 (Admin) Keith J concluded (at  – ) that there is no requirement that a prisoner be afforded an opportunity to make representations as to his licence conditions prior to their imposition by virtue of Article 6 of the ECHR. He also stated that, on the facts of that case (see ) the conditions challenged did not engage the operation of Article 8.
- In Tabbakh's case Cranston J stated ( EWHC 2492 (Admin) ) that "as a matter of principle…the procedural rights contained in Article 8 can be engaged in fixing an offender's licence conditions" (emphasis added). Mr Southey sought to rely on Cranston J's statement without putting it in its context, but it must be seen in that context. First, the claimant in that case did not (see ) have an opportunity to have his views taken into account at the MAPPA meetings. Secondly, Cranston J recognised that the impact which representations can be expected to have about licence conditions will be limited because the question for the decision-maker essentially involves an assessment of risks which is "quintessentially one of judgment". Thirdly, and most importantly, he held that the procedural requirements were satisfactorily met in that case because Mr Tabbakh's concerns were "on the table" at the MAPPA, and the Offender Manager with responsibility for overseeing his sentence was at those meetings and fed in his perspective. The claimant in this case had not only indirect input of the sort referred to in Tabbakh's case in the Multi-Agency Assessment process, but direct input at the three meetings. His input was made against a background in which the application of the OASys assessment tool to his circumstances had resulted in him being assessed as "high risk of causing serious harm".
- What of the implicit procedural requirements required where Article 8 is engaged, which were at the core of Mr Southey's submissions? It is clear that these require only involvement in the decision-making process as a whole to a degree sufficient to provide the person affected with the requisite protection of his interests: see e.g. Re M (Care: Challenging Decisions by Local Authority)  2 FLR 1300 at 1310C – D and 1311A. The opportunities for participation by the claimant at the meetings I have described clearly satisfy this requirement.
- Finally, the decision in R (L) v West London Mental Health NHS Trust  EWCA Civ 47 does not assist the claimant. In one sense L had less input to the decision than the claimant in this case. There was no evidence in that case that the referring or assessing doctors carefully went through their draft reports about transferring L to Broadmoor with him, as the probation officers in this case went through the licence conditions with the claimant. Even so, the Court of Appeal held (see ) that because L was able, either personally or through his solicitor, to put his side of the story about the incident which triggered consideration of his transfer to Broadmoor to the relevant authorities before a decision was made, the decision was not procedurally unfair.
- Before leaving this ground, I make two observations about the obligations of claimants in judicial review proceedings and those of their solicitors and barristers. First, claimants in judicial review proceedings have a duty of full and frank disclosure: see, e.g., R (Burkett) v Hammersmith LBC  UKHL 23 at . In this case the statement of facts in section part 8 of the claim form, signed with a statement of truth by a solicitor from Irvine Thanvi Natas does not disclose any of the claimant's pre-release meetings with probation officers, although these meetings are clearly relevant to the "adequacy of procedural safeguards" ground in paragraph 1.1.5. That non-disclosure would in itself have justified refusing relief, at least on the procedure ground, and possibly altogether: see e.g. R v Lloyds of London, ex p. Briggs  1 Lloyd's Rep. 176, at 179 - 182.
- My second observation concerns another obligation which should be familiar to all who practice in this area. It is one that is stated on the form containing an Order granting permission. A claimant in judicial review proceedings and those representing him or her are obliged to reconsider the merits of the claim on receipt of the defendant's evidence. This obligation was identified by Hodgson J in R v Secretary of State for the Home Department, ex p. Brown The Times, 6 February 1984. The material part of his judgment was set out by Brooke J in R v Horsham DC, ex p. Wenman  1 WLR 680 at 701. The obligation was also discussed in R v Liverpool Justices, ex p. P  COD 453 and R v Inland Revenue Commissioners, ex p. Continental Shipping  COD 335. In ex p. Brown Hodgson J stated:
"it [is] highly desirable for counsel and solicitors instructed by an applicant for judicial review to give further careful consideration to the merits of the application once they had received notice of the respondent's evidence, even though leave to move for judicial review had already been obtained".
He did so because, if this was done, "much time, expense and disappointment involved in the hearing of hopeless applications would be saved".
- In these proceedings the merits of the procedural ground of challenge may have been reconsidered some time after the receipt of the detailed grounds. I say this because (albeit only six months later and a month before the hearing, apparently because of funding difficulties), the claimant served evidence in response. But I am very surprised that, after the claimant and his advisers saw Ms Tuitt's statement, they persisted with this ground.
- It is important for claimants and legal practitioners not to lose sight of their obligations of disclosure and reconsideration. Non-disclosure may result in the denial of a remedy, and both non-disclosure and failure to reconsider a claim or a ground in the light of the defendant's evidence may be reflected in the order for costs, including, in an appropriate case, a wasted costs order against the legal representatives
- (ii) Ultra vires and common law certainty: The starting point of Mr Southey's submissions on the substantive challenge was that the terms of section 250 of the 2003 Act make it clear that any conditions included in a licence must be prescribed in the 2005 Order. This, he submitted, requires the Order to authorise the restrictions upon liberty within the licence. He accepted that it is not necessary for the Order to prescribe the language used in a particular condition. He, however, submitted that nothing in the 2005 Order allows a licence to limit the publications that an offender may have in his or her possession – thus restricting the offender's right to freedom of expression pursuant to Article 10 of the ECHR which (see Leander v Sweden (1987) 9 EHRR 433 at ) includes receiving information that another wishes to impart to him. Similarly, nothing in the 2005 Order allows a licence to prevent an offender attending meetings and thus to interfere with the offender's right to freedom of association pursuant to Article 11. The consequence, submitted Mr Southey, is that the principle of legality requires the provisions of the Order to be read narrowly because (see R v Secretary of State for the Home Department, ex p. Simms  2 AC 115 at 131) "fundamental rights cannot be overridden by general or ambiguous words".
- Mr Southey also made a more wide-ranging submission, but stated he did not need to rely on it. This was that, in the light of ex p. Simms, primary legislation is required before there can be a lawful interference with fundamental rights. Accordingly, even if the words of the Order were precise enough, that would be insufficient, because neither section 250 of the 2003 Act nor section 333, which requires the prescription of conditions to be made by Order laid before Parliament, expressly authorise an interference with fundamental rights.
- Probation Instruction 07/2011 is, Mr Southey submitted, irrelevant to this issue. It cannot provide the requisite legislative authority for licence conditions if they are not authorised by the 2003 Act and the 2005 Order because it is merely a policy document. He argued that the decision of Silber J in R (Medical Justice) v Secretary of State for the Home Department  EWHC 1925 (Admin) showed that the fact that the policy had not been challenged, and indeed is not directly challenged in these proceedings, does not mean that it can be assumed that it is lawful
- At times Mr Southey appeared to be submitting that one has to read down section 250 of the 2003 Act and Articles 2 and 3 of the 2005 Order in accordance with the principle of legality so as to preclude any interference with privacy, freedom of expression or freedom of assembly. The principle of legality does not, however, require such a construction. It must be remembered that the rights protected by Articles 8, 10 and 11 are all qualified rights. At most what the principle of legality might do in this context is to require the statute and the Order to be read down so as to preclude disproportionate interferences with those rights.
- The modern purposive approach to statutory construction is so established that it is not necessary to justify its use by extensive citation of authority. But Lord Mance's statement in Bloomsbury International Ltd v Department for the Environment, Food and Rural Affairs  UKSC 25 at , is a useful starting point for this part of the discussion. He stated that "in matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance" and "represent the context in which individual words are to be understood". The 2003 Act, which requires the Secretary of State to release offenders on licence, requires him or her to prescribe conditions for the statutory purposes. The Secretary of State must prescribe standard conditions which must be included in the licence. The wording of section 250(4)(b)(ii) is not entirely easy, but I would interpret it as providing authority to the Secretary of State to prescribe the "kind" of "other conditions" which may be included in the licence.
- When prescribing both standard and other conditions the Secretary of State is required to have regard to the three purposes set out in section 250(8). These are; the protection of the public, the prevention of re-offending, and securing the successful re-integration of the prisoner into the community. The fact that the Secretary of State must have regard to these purposes, in particular the first two, means that the statute must be interpreted as providing authority for the prescription of conditions which restrict privacy, freedom of expression or freedom of assembly. This is because having regard to these purposes will inevitably result in conditions which interfere with the freedom of a released prisoner to live his life in the way he wishes. The standard conditions of licences require a released prisoner to keep in touch with the responsible officer, to reside at an address approved by the officer and to get permission for any stay at a different address, to undertake work only with the approval of the officer, and not to travel outside the United Kingdom without prior permission. It is unarguable that the 2003 Act does not authorise such conditions because its provisions are insufficiently specific. This submission is, in reality, a challenge to fundamental aspects of the entire system of release on licence.
- So far, I have only referred to the standard conditions. I have done this because it is the consideration of those which shows the breadth of Mr Southey's contentions. The kind of "other conditions" prescribed by Article 3 of the 2005 Order are those set out at  above. They are conditions which inter alia restrict the offender making or maintaining contact with a person, participating or undertaking an activity, subject him or her to a curfew arrangement, and subject him or her to other restrictions on freedom of movement. In the light of the purposes in section 250(8) and in the context of the provisions of this part of the 2003 Act, I consider that section 250 authorises the Order to prescribe "kinds" of "other conditions" which potentially engage a right protected by the ECHR. Accordingly, in my judgment conditions such as those in 5(x) and 5(xii) are not in themselves ultra vires. It cannot be said that every application of these conditions will breach the rights of the offender because not every application will be a disproportionate interference and therefore unjustified: see my discussion in R (Chapti and Bibi) v Secretary of State for the Home Department  EWHC 3370 (Admin) at  – . The decision of the Administrative Court in that case was affirmed by the Court of Appeal  EWCA Civ 322 without discussion of this point.
- I turn to the position where, in a particular case, the application of a condition has the effect of disproportionately interfering with an ECHR right which, on the facts of that case, is engaged. The provisions of section 3 of the Human Rights Act 1998 ("the 1998 Act") apply. The court is required to read and give effect to primary and secondary legislation in a way which is compatible with the Convention rights "so far as it is possible to do so". Save where it is not "possible" to read the legislative provision in this way, the legislation will not authorise a condition made pursuant to it to be applied so as to interfere disproportionately with an ECHR right. Similarly, because section 6 of the 1998 Act makes if unlawful for a public authority to act in a way which is incompatible with a Convention right, where the effect of a condition in a particular case is a disproportionate interference, it will be unlawful for the Probation Service, and indeed for the court, to give it that effect. I will return to this when considering the submission that, on its true construction, condition 5(x) restricts the claimant's ability to meet his lawyers.
- I also do not consider that the language of the 2003 Act or the Order is insufficiently clear to fall foul of the common law principles of certainty. The most recent statements of the common law position are in the decision of the House of Lords in R (Gillan) v Commissioner of Police for the Metropolis  2 AC 307, a case concerned with the stopping and searching of members of the public pursuant to sections 44 and 45 of the Terrorism Act 2000 and that of the Court of Appeal since the hearing in R (Roberts) v Commissioner of Police for the Metropolis  EWCA Civ 69. Roberts's case concerned the enlarged power under section 60 of the Criminal Justice and Public Order Act 1994 to stop and search persons and vehicles for offensive weapons even if there are no grounds for suspecting the person or the vehicle is carrying such items. These decisions deal with very different contexts because they concern provisions which potentially apply to all citizens in the exercise of their civil rights in public places and restrict or interfere with those rights. This case concerns on offender whose sentence has not terminated and about whom the state has a legitimate interest in ensuring that he does not re-offend and is rehabilitated. But those two cases are instructive as to the general approach of the common law.
- In Gillan's case, Lord Bingham stated (at ) that the principle of legality did not apply on the facts of that case since, even if the sections were accepted as infringing a fundamental human right, which he stated was itself a debatable proposition, "they did not do so by general words, but by provisions of a detailed, specific and unambiguous character". Section 44 of the Terrorism Act provided for constables in uniform to be authorised by a senior police officer to stop a vehicle in a designated area or place for a period of up to 28 days, and to search the vehicle, the driver of the vehicle, the passenger in the vehicle, anything in or on the vehicle, and a pedestrian and anything carried by the pedestrian, where this was considered expedient for the prevention of acts of terrorism. Section 45 provided that the power could be exercised without a requirement of a condition of reasonable suspicion. The authorisation had to be reported to the Secretary of State and lapsed after 48 hours if not confirmed by him or her. Lord Bingham (at ) stated that these safeguards meant that the rule against arbitrariness was satisfied.
- Before considering Roberts's case, it is necessary to temporarily move from the common law to the requirements of the ECHR. This is because, in Gillan's case, the Strasbourg Court reached a different conclusion to the House of Lords. It considered ((2010) 50 EHRR 45) that the safeguards provided by domestic law had not been demonstrated to constitute a real curb on the wide powers afforded to the executive, and it was concerned (see ) with the breadth of the discretion on individual officers. It also stated that the absence of a requirement at the authorisation stage that the "stop and search" power be considered "necessary" meant there was no requirement of any assessment of its proportionality, and the fact that the authorisation had been continuously renewed on a "rolling programme" since the powers were first granted showed that the temporal and geographical restrictions were no real check: see  –  and . The Strasbourg Court concluded (at ) that the powers were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse, and thus not "in accordance with the law".
- In Roberts's case, relying in part on the Strasbourg Court's decision in Gillan's case, Mr Southey unsuccessfully submitted that the power in section 60 of the 1994 Act is not "in accordance with the law" because it permits the police to stop and search a subject arbitrarily. Maurice Kay LJ's analysis primarily addressed the ECHR requirement that restrictions of protected rights be "prescribed by" or "in accordance with" the law, rather than the common law. But he also stated (at ) that, while the Court of Appeal was bound to "take into account" the decisions of the Strasbourg Court, it was not for it to defer to Strasbourg at the expense of the House of Lords.
- Maurice Kay LJ noted (at ) that the limited period of time and territorial scope of the power under section 60 of the 1994 Act meant that it was narrower than that in the provisions of the Terrorism Act considered in Gillan's case. It also differed from those provisions because the requirement that the authorising officer have a reasonable belief in the specified things incorporated an objective criterion which was more susceptible to judicial review. But he also stated (at ) that the fact that the officer conducting the search was not required to have even a subjective belief in relation to the person stopped and searched did not mean that the power under section 60 was arbitrary. He did so inter alia because the power was underscored by the Code issued under the Police and Criminal Evidence Act 1984. He also relied on the Strasbourg decision in Application 49458/06 Colon v The Netherlands (15 May 2012) that a power to stop and search for weapons within a territorial area was "in accordance with the law" although there was no requirement for reasonable suspicion.
- These cases show that a claimant who contends that a provision is insufficiently clear to satisfy common law requirements of certainty must overcome a high hurdle. That is also shown by the decision of the Court of Appeal in Percy v Hall  QB 924. The court held that, although a by-law's definition of a protected military area was not clear, the by-law was not invalid at common law. It would only be invalid for uncertainty if it was so uncertain in its language as to have no ascertainable meaning, or so unclear in effect as to be incapable of certain application in any case. The decisions on the equivalent requirements under the ECHR I consider in the next section do not mean that a re-evaluation of the common law is required or suggest a different result.
- (iii) The ECHR requirement that a restriction be "prescribed by" or "in accordance with" the law: The Strasbourg Court in Sunday Times v United Kingdom (1979) 2 EHRR 245 at  held that the law must be "adequately accessible" and that "the citizen must have an indication that is adequate in the circumstances of the legal rules applicable to a given case". The court stated that a provision cannot be regarded as "law":
"unless it is formulated with sufficient precision to enable the citizen to regulate his conduct – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail".
- Mr Southey submitted that, because the 2005 Order does not specify the circumstances in which the fundamental rights protected by Articles 10 and 11 may be interfered with, the Order is insufficiently precise. He also submitted that this vice was not made good by the Policy or the terms of the conditions of the licence. The licence itself did not specify the circumstances in which the claimant would be permitted to possess potentially prohibited materials or attend meetings. The "unrestricted discretion" given to the Secretary of State to impose conditions that interfere with Articles 10 and 11 and the "complete discretion" given by the licence to the supervising officer as to whether to permit the claimant to possess particular material or attend meetings means (see Gillan v United Kingdom (2010) 50 EHRR 45) that there is inadequate protection against arbitrary interferences with the protected rights.
- For this part of his submissions Mr Southey relied on statements in decisions of the Strasbourg Court that discretions must be conferred with sufficient clarity as to their exercise to enable the individual subject to them to have protection against arbitrary interference. He also relied on R v Hemsley  EWCA Crim 225,  3 All ER 956 at . In that case the Court of Appeal Criminal Division stated that it was essential that Sexual Offences Prevention Orders were clear on their face and capable of being complied with without unreasonable difficulty because breach of them was a criminal offence carrying a five year maximum sentence.
- I reject Mr Southey's submissions. As Mr Whale observed, the test set out in the Sunday Times case concerned the law itself and not the way a regime is applied. I recognise that there is support, for example in Gillan's case, for the proposition that over-broad and unstructured discretions may mean that a power is too uncertain to be "in accordance with the law" but, for the following reasons I do not consider that this is such a case.
- The passage from  of the judgment in the Sunday Times case I have quoted makes it clear that a provision may be regarded as a law if a person is able, if need be with appropriate advice, reasonably to foresee the consequences of particular conduct. Notwithstanding its very different context, Lord Bingham's judgment in R v Shaylor  UKHL 11,  1 AC 247 is also of assistance. That case concerned restrictions on the right to free expression imposed on members of the security services by the provisions of the Official Secrets Act 1989, obliging them not to disclose without authority any information that came into their possession by virtue of their employment. Lord Bingham stated (at ) that the restriction was prescribed with complete clarity. A member or former member of any of the security services wishing to obtain authorisation could be in no doubt that he should seek authorisation from his superior or former superior. He stated that the restriction was "prescribed by law" and that the real issue between the parties was the question of the necessity, pressing social need, and proportionality of the restriction.
- Despite the difference of context, the position in Shaylor's case is very similar to that in the present case. The restriction is clear. It is subject to a requirement of authorisation. The claimant in this case is able to seek appropriate advice, both from his own legal representatives and from Ms Tuitt, who he meets every week, so as to foresee to a reasonable degree the consequences of his actions. It is telling that the claimant's solicitors' letter dated 23 August (see  above) in effect stated that they understood that it was not the intention of the licence to prevent the claimant from reading a newspaper. It is more telling that in the 19 months since the claimant was released, no request for prior approval has ever been made about the condition 5(xii) prohibition of material or notes containing information about specified matters. There were extensive references in the submissions to the uncertainty about whether newspapers which report on conflicts in different parts of the world were subject to the prohibition in this condition, but it appears that no request for prior approval has ever been made for a newspaper and, in any event, the letter from the London Probation Trust dated 6 September 2012 made it clear that the materials covered by the condition were those "which could reasonably be used to promote violence". In relation to condition 5(x), the claimant has sought and been granted approvals on numerous occasions. His request (see ) for condition 5(xv) prohibiting him from possessing a computer without prior approval – not a condition challenged – was refused in September 2012, although it was said the position would be kept under review. As in Shaylor's case, assuming Articles 8, 10 and 11 are engaged, the real issue in this case is whether the restrictions are justified.
- I finally observe that the Policy provides additional guidance about the scope and meaning of the conditions. In particular, guidance is given about the need for proportionality and the need to link the condition to the level of risk presented by the offender. In R (Munjaz) v Mersey NHS Trust  UKHL 58,  2 AC 148, Lord Bingham (at ) rejected the submission that, because provision for the use of seclusion for detained psychiatric patients was not prescribed by a binding general law, the interference with Mr Munjaz's right under Article 8(1) of the ECHR was not "in accordance with the law". He stated that Parliament was entitled to achieve the required certainty by requiring the Secretary of State to give guidance and to call on hospitals to have clear written guidelines. I therefore reject Mr Southey's submission that the existence of the Policy and its terms is not relevant to this question.
- (iv) Interference and proportionality: Mr Southey submitted that the challenged conditions prima facie interfere with the rights under Articles 8, 10 and 11 of the ECHR because they prevent the claimant from receiving certain information, associating at public and private meetings, communicating with his lawyers and generally interfering with the exercise by the licensee of his private life. He argued that, once there is an interference with the rights protected by those provisions, the familiar process by which consideration of whether the interference is justified applies. It is for the public authority to show that the interference with the rights is "in accordance with the law", "necessary in a democratic society", and that a fair balance has been struck. Mr Southey submitted that the defendants have not done this.
- A strand of this part of Mr Southey's submissions was based on the decision of the Strasbourg Court in Stafford v UK (2002) 35 EHRR 32, that of the Divisional Court in R (Foley) v Secretary of State  EWHC 2184 (Admin), and the Parole Board's most recent guidance on the release of prisoners serving a determinate sentence. Stafford and Foley's cases respectively held that a risk of future non-violent crime could not justify a prisoner's continued detention after serving the minimum term, and that a prisoner subject to a determinate term should not be exposed to a release test that is harder to satisfy than that which applies where a prisoner is of higher risk and hence subject to an indeterminate sentence. The Parole Board's guidance states that "in order to direct release, the Board should be satisfied that it is no longer necessary for the prisoner to be detained in order to protect the public from serious harm (to life and limb). …" Mr Southey submitted (skeleton argument, paragraph 3.22.5) that the judgment in Stafford's case "demonstrates that licence conditions could only be imposed in the case of a prisoner serving a sentence of life imprisonment to address a risk of serious violence" and that the judgment in Foley's case suggests there is no basis for treating a prisoner serving a determinate sentence such as the claimant less favourably.
- Turning to proportionality, Mr Southey submitted that the conditions were neither necessary in a democratic society nor struck a fair balance. This was, he argued, because the condition concerning the possession of material about weapons means that the claimant is prevented from possessing material that is widely and lawfully available, including most daily newspapers, which are likely to include articles regarding weapons and military technology. Similarly, the condition restricting the ability of the claimant to attend meetings is also disproportionate because it appears to prevent him from attending his lawyer's office without prior approval, or meeting a person by accident in the street and going for a coffee with that person. Mr Southey submitted that the fact that the claimant has been told that these conditions would be interpreted in a narrower manner does not answer the objection. Indeed, it produces uncertainty about the scope of the restriction, depending as it does on oral communications by those responsible for his supervision. He maintained that, if the conduct that is to be prevented is narrower than the language of the conditions, they should be drafted in narrower terms.
- Mr Southey described the effect of having to seek approval for meetings and possession of materials as restricting the exercise of the relevant right because the risk of being affected by what is a broad discretion on the part of the probation officer has what might be described as a "chilling effect". This may be so, but, in Application Number 8191/78 Rassemblement Jurassien v Switzerland 10 October 1979, (1979) 17 DR 93, the Commission stated that the subjection of meetings in public thoroughfares to an authorisation procedure "does not normally encroach upon the essence of the right" to freedom of peaceful assembly and of association and, "accordingly, does not as such constitute interference with the exercise of the right".
- I have doubts as to whether the practical effect on the claimant of the operation of these conditions since his release (see  below) has been such as to sufficiently interfere with his rights so as to engage Articles 8, 10 and 11 of the ECHR. I particularly doubt whether the conditions give rise to sufficient interference so as to engage Article 8: see R (Carman) v Secretary of State for the Home Department  EWHC 2400 (Admin) at  –  and R (Ahmed) v National Probation Service and Secretary of State for Justice  EWHC 1332 (Admin) at  – . Notwithstanding these doubts, for the purposes of these proceedings, I am prepared to assume that the two conditions interfere with the rights of the claimant that are protected by those provisions.
- I therefore turn to the question of justification and the requirements that the restrictions are necessary in a democratic society and that a fair balance has been struck between the interests of society and those of the claimant. Giving the impugned conditions a purposive interpretation, and subject to two qualifications, I am satisfied that the defendant has demonstrated that requiring this claimant, who has been convicted of a terrorist-related offence, to comply with these conditions is necessary and strikes a fair balance.
- It is important to recall the nature of release on licence. I have referred to the fact that the submissions on behalf of the claimant made no distinction between the position of an offender in whom the state has a legitimate interest in rehabilitation, and the position of a citizen without a blemish on his record exercising one of the fundamental freedoms of all citizens which are protected by the ECHR. There was also little recognition of the extensive experience built up by the defendants in managing extremist offenders following their release on licence. With one qualification, I respectfully agree with the observations of Moses J (as he then was) in R (Carman) v Secretary of State for the Home Department  EWHC 2400 (Admin) at  that "the licence conditions and assessment of risk to the public, on which they are based, are matters of fine judgment for those in the prison and probation service experienced in such matters, not for the courts. The courts must be steadfastly astute not to interfere save in the most exceptional case". The qualification is that I would not describe the cases in which the court should intervene as "exceptional". I would emphasise the need to show a clear error of law or other public law flaw, and care not to give insufficient recognition to the expertise of the Probation Service.
- The offence for which the claimant was convicted was disseminating terrorist publications. Those publications are defined by section 2(3) of the Terrorism Act 2006 as publications containing matter which is likely to be understood as a direct or indirect encouragement or inducement to the commission, preparation or instigation of acts of terrorism, or to be useful in the commission or preparation of such acts, and made available wholly or mainly for the purpose of being so useful. Section 2(4) provides that material that is likely to be understood as indirectly encouraging the commission or preparation of acts of terrorism includes material which "glorifies" such acts or from which a person could reasonably be expected to infer that such acts are being glorified and should be emulated. In order to be convicted of an offence under section 2, a defendant is (see section 2(1)) required to intend an effect of his conduct to be a "direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism", "the provision of assistance in the commission or preparation such acts", or if the defendant is reckless as to whether his conduct has one of these effects. It is in the light of his index offence that the claimant was assessed as posing a "High Risk of Causing Serious Harm". Conditions designed to prevent him possessing such material and controlling the meetings he can attend are manifestly for the purposes of protecting the public and preventing re-offending, the first two of the three purposes which section 250(8) states the Secretary of State must have regard to in exercising her powers to prescribe conditions. The conditions themselves also relate to these purposes. As to offences of a similar nature, it should be noted that section 58 of the Terrorism Act 2000 makes it an offence to collect or make a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism or to possess a document or record containing information of that kind.
- At first sight, it might appear that, in particular the prohibition on material that contains "information about military or paramilitary technology, weapons, techniques or tactics", could prohibit possession of any book on military history, including books on ancient history. Condition 5(xii) must, however, be given a purposive interpretation, i.e. construed in the light of its context and this claimant's offending and risks. So construed, condition 5(xii) applies only to material which could be reasonably used to promote violence. This is explicitly stated in the first half of the condition. The second half of the condition must be read as implicitly including this limit, as the claimant was told by the defendant in September 2012: see  above.
- In my judgment, the fact that the claimant has weekly meetings with his probation officer/offender manager and the evidence about the way the licence regime has operated and authorisation given shows that the defendants have applied the licence conditions reasonably and flexibly. The claimant has been permitted to attend two mosques. He has been granted permission to attend socially positive gatherings such as weddings. His GPS tag has been removed, and he has been provided with support in his successful efforts to obtain employment. In the light of the nature of his offending, it is understandable and proportionate that prior approval be required before he can attend events such as sporting events, at which many hundreds of people are likely to be in attendance, and which are generally regarded as vulnerable to terrorist action.
- I found Mr Southey's submissions based on the cases of Stafford and Foley and the Parole Board's guidance obscure and unpersuasive. They (skeleton argument, paragraph 3.21) mischaracterise the Parole Board's guidance as "on the recall of determinate prisoners". In fact, the part of the guidance relied on concerns the release of determinate prisoners who have previously been released but recalled: see page 5. The cases of Stafford and Foley are about the continued detention of a prisoner after serving the minimum term, not licence conditions. They are, moreover, not decisions about recall following a breach of condition. Mr Southey went so far as to submit that, where a person convicted of fraud posed no threat to "life and limb", a condition of licence exposing him to be recalled should he commit a further fraud during his licence period was a disproportionate interference. I consider this submission completely unarguable. It was one of the reasons that I concluded that the thrust of Mr Southey's submissions in fact constituted a challenge to the entire licensing system in the 2003 Act.
- I referred to two qualifications. The first concerns the claimant communicating and meeting with his lawyers. On this, the position of the defendants has been unclear and inconsistent. At one stage they appeared to maintain that, while it is not intended to restrict the claimant's ability to meet his lawyers, such meetings fall within the terms of condition 5(x). It was, however, also contended by Mr Whale that it is seen from the note of the pre-release meeting on 11 June that meetings with lawyers are not covered by the condition.
- The position is not at all satisfactory. Although, the claimant's offending was what is classified as "extremist" offending of a nature which would indirectly encourage the commission, preparation or instigation of acts of terrorism, the advice in the Probation Service's Policy 07/2011 emphasises "necessity" and "proportionality". Moreover, the common law attaches particular importance to the freedom of individuals to communicate with their lawyers in an unimpeded way: see Raymond v Honey  1 AC 1 and R v Secretary of State for the Home Department, ex p. Leech (No. 2)  QB 198 at 210, Fordham, Judicial Review Handbook 6th ed. 7.3.3 and 35.2.6. In R v Shaylor  UKHL 11,  1 AC 247 at , Lord Hope stated that "access to legal advice is one of the fundamental rights enjoyed by every citizen under the common law". The Strasbourg Court has also emphasised the importance of a person being able to communicate with his or her lawyers in Golder v United Kingdom (1975) 1 EHRR 524 and Campbell and Fell v United Kingdom (1985) 7 EHRR 165. Not without some hesitation, I have come to the conclusion that, if one reads condition 5(x) in the light of the purpose for which these "other" conditions are imposed, it must be read as not including restricting the right of access to a lawyer or subjecting it to the need for prior approval.
- The second qualification concerns the statements by or on behalf of the defendants that condition 5(x) does not apply to small meetings, such as meeting a friend by chance who invites him for a coffee. This would appear to be another example of a degree of unsatisfactoriness in their position. If the purpose of the conditions is to prevent the claimant from associating with those who may encourage him in further offending, achieving this and purposes set out in section 250(8) of the 2003 Act (set out at  above), there may be a particular need to monitor and authorise small meetings. If what is meant is that chance meetings which are not pre-arranged are not covered, that is another matter.
- For these reasons, I would dismiss this application.
Mr Justice Simon:
- I agree.
Note 1 See  below for the requirements of this provision, including those as to intent. [Back]
Note 2 It appears that Mr Southey took a similar point in R (Ahmed) v National Probation Service and Secretary of State for Justice  EWHC 1332 (Admin), and that Keith J dealt with it in a similar way (see ). [Back]
Note 3 See the similar observations about the nature of the matter to be decided by Maurice Kay LJ in R (King) v Secretary of State for Justice  1 WLR 3602, a case about the regime for adjudication of disciplinary charges brought against prisoners. He stated (at ) that the decisions that have to be made are not made “just in a binary mode as between themselves and an individual prisoner” but in the interests of the security of the institution as a whole. [Back]
Note 4 Parole Board for England Wales, Guidance to Members on LASPO Act 2012 – Test for Release (revised guidance, December 2013). [Back]
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