Imposing strict conditions on release of terrorist offender did not breach Article 8

15 August 2013 by Rosalind English

Tabbakh, R (on the application of) v Staffordshire and West Midlands Probation Trust and others  [2013] EWHC 2492 (Admin) – read judgment

The claimant, a Syrian national,  was serving the non-custodial part of a seven year sentence imposed for an offence of preparing a terrorist act. He was released automatically on licence on 23 June 2011, having served half his sentence. He took proceedings for judicial review contending that he had had no meaningful opportunity to participate in the process when his licence conditions were determined and that this constituted a breach of the procedural guarantees under Article 8 of the European Convention on Human Rights.

Whilst the claimant was in prison he had been allocated an offender manager who completed a risk assessment, which stated that he posed a high risk in the community which was likely to be greatest if he was released without stringent supervision.  The panel responsible for determining those conditions considered that the licence conditions it agreed were necessary and proportionate to the level of risk of serious harm which the claimant posed.  The claimant objected to the licence conditions, namely residence in a probation hostel in Birmingham; electronic tagging; and reporting at 11am and 3pm every day, in addition to a curfew from 7pm to 7am. It was the claimant’s case that these conditions prevented him from accessing his preferred treatment for his post traumatic stress disorder, which was available in London but not in Birmingham. In the intervening period those conditions were either removed or varied.

Although he dropped his specific objections to the conditions, the claimant submitted that he had had no meaningful opportunity to participate in the decision-making process, namely the meetings when his licence conditions were determined and that that constituted a breach of the procedural guarantees under Article 8 .

The application was dismissed.

Reasoning behind the judgment

The concept of private life in  Article 8 has been given a broad interpretation to cover the physical and psychological integrity of a person and to protect the right to personal development and to establish and develop relationships with others:  Pretty v United Kingdom (2002) 35 EHRR 1 and R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414.  Although there was no mention of the procedural rights in Article 8, those rights were therefore implicit in its provisions:

There is clear authority that Article 8 may be engaged in relation to the licence conditions of those serving the non-custodial part of a sentence of imprisonment: for example, R(Craven) v Secretary of State for the Home Department [2001] EWHC 850 (Admin) (licence condition imposing exclusion zone from where the offender’s family lived):[27]; R(Corbett) v Secretary of State for Justice [2009] EWHC 2671(Admin);  [2010] HRLR 3 (licence condition requiring offender to participate in polygraph sessions with a view to monitoring his compliance with other licence conditions and improving the way in which he was managed during his release: [30]

The decision making process involved in measures of interference had to be fair to ensure due respect of the interests safeguarded by Article 8 (Turek v Slovakia (2007) 44 EHRR 43). Regard had to be had to the circumstances of each case, notably the serious nature of the decisions taken. That was the same approach as the common law; the standards of fairness were not immutable.

As a matter of principle, procedural rights contained in Article 8 could be engaged in relation to licence conditions of those serving the non-custodial part of a sentence of imprisonment. The requisite procedural rights were the very basic that the law required so that an offender was able to make meaningful representations. On the other hand, there was no need for the claimant’s presence or for oral representations and no requirement for the licence conditions to be fixed by an independent body such as the Parole Board. Moreover, the impact which such representations could be expected to have would be limited in the situation where the assessment of risks was quintessentially one of judgment. Where offenders were considered to pose a significant risk of real harm to the public, the restrictions liable to be imposed were likely to be severe and strictly applied. Cranston J found in the case of this prisoner,  whatever objections he may have raised to the additional conditions would be “substantially discounted”:

The reality was that this claimant had committed terrorist offences. He refused to engage in rehabilitative work in prison. Nor would he accept responsibility for his offending. His [Offender Assessment System], which had been given to him, were that he posed a high risk of harm in the community. Obviously he would be subject to the most stringent additional conditions in his licence. With this as background, and the security problems in the hostel where he would live, the electronic tag was in my view an obviously proportionate response.

The imposition of the conditions was not set in stone. The licence conditions were varied over time. In the claimant’s circumstances, the procedural requirements were satisfactorily met.

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