Human rights and public law challenge to prisoner’s release conditions fails

Prisoners releaseR(Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) – read judgment

Mr Gul had been imprisoned for a period, on 24 February 2011, for disseminating terrorist publications. When he was released on 6 July 2012, this was under licence, as is common following the release of dangerous prisoners. Mr Gul challenged some of the conditions of his licence by judicial review. The court rejected his challenge.

The purposes of releasing offenders from prison on licence, allowing them liberty under conditions to be supervised by a probation officer, are clear enough – protecting the public, preventing reoffending, and securing the successful reintegration of the prisoner into the community, as set out in Section 250 (8) Criminal Justice Act 2003.

The conditions which Mr Gul challenged were in the category of “other conditions” (as opposed to “standard conditions”) and were imposed in accordance with Article 3(2) Criminal Justice (Sentencing) (Licence Conditions) Order 2005 SI 2005/648 (dealing with conditions generally) and Annex B Probation Instruction 07/2011 (dealing with extremist offenders).

The first was a “non-association” requirement – not to attend meetings other than for worship, without prior approval – and the second was a “restricted activity” requirement – summarising, not to have any printed material which contains information about military technology, without prior approval (see the judgment at paragraph [16]).

Procedural unfairness

Mr Gul, through his solicitor, objected to these conditions. It cannot, he said, “be the intention of the licence to prevent him from reading a newspaper or from observing his religious practice”. It isn’t, said the London Probation Trust. In accordance with the non-association requirement, he was already allowed to attend one mosque, and when he sought permission to attend another one as well the Trust granted it. If he wanted to go out to see Arsenal play, though, he would still have to ask permission of his probation officer first, who would try to make a decision as quickly as possible. The relevant condition of the restricted activity requirement, they said, only covered “materials which could be reasonably used to promote violence” – newspapers would be fine. Still unsatisfied, Mr Gul brought a judicial review.

His first point was procedural unfairness. The court was unimpressed by this. Mr Gul had met the probation officer responsible for supervising his licence three times in prison prior to his release. He had an opportunity to discuss the licence conditions in some detail with her. One of the matters which he raised with her was which mosque he could attend, and this was dealt with prior to his release. Procedural fairness, the court said, whether under the common law or under Article 8, requires only involvement in the decision-making process as a whole sufficient to provide him with protection of his interests – [39]. The recent decision in R(L) v West London Mental Health NHS Trust [2014] EWCA Civ 47 – see David Hart’s post - did not assist him. In that case, the claimant had less input into the relevant decision than Mr Gul did, but the Court of Appeal held that because he was able to put his side of the story before a decision was made, it was not procedurally unfair.

In fact, the court was so unimpressed by the procedural unfairness point that at [44] it said the following:

It is important for claimants and legal practitioners not to lose sight of their obligations of disclosure and reconsideration… 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.

While no such order was made in this case, the point is very much worth remembering.

Human rights aspects

The second broad point made by Hugh Southey QC on Mr Gul’s behalf was, in essence, that, on Article 8 grounds, the provisions of the 2003 Act are insufficiently specific to authorise the conditions of his licence (or, if he was right, any of the standard licence terms commonly used across the country, such as keeping in touch with a responsible parole officer, as the court pointed out at [50]).

The court rejected the submission that the language of either the 2003 Act or the 2005 Order was insufficiently clear to fall foul of either the common law principles of certainty or the ECHR requirement that they be “in accordance with law”. It went on to say that the licence conditions imposed on Mr Gul may not have even gone far enough to engage Article 8 at all – see paragraph [70] – but that, if they did, they would be justified as “necessary in a democratic society”, and proportionate, given that Mr Gul had been convicted of a terrorism-related offence.

The court went on to comment in general on the imposition of licence conditions on offenders, saying at [72]:

it is important to recall the nature of release on licence… 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… I respectfully agree with the observations of Moses J (as he then was) in R(Carman) v SSHD [2004] EWHC 2400 (Admin) at [33] 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

Although Beatson LJ did go on to say that while he would not describe the cases in which the court should interfere as necessarily being exceptional, he 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”.

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