Davis v Secretary of State for the Home Department [2004] EWHC 3113 (Admin)

Case No CO/6365/2004[2004] EWHC 3113 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 21 December 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE TUCKEY
MR JUSTICE FIELD
Between
OWEN DAVIS (AKA NICHOLAS SLOCOMBE)Claimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JOHN LLOYD (instructed by Eastleys Defence Service) appeared for CLAIMANTMR C SHELDON (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE TUCKEY:

This

[1]is an application by Owen Davies, with the permission of Davis J for judicial review of a notice issued on behalf of the Home Secretary, on the claimant's release from custody under the provisions of section 65 of the Criminal Justice Act 1991.[2]The claimant, who was born on 5th March 1983, was released from Dartmoor on 16th November 2004, after serving the whole of a sentence of 30 months in a Young Offender Institution for four offences of obtaining by deception, six of burglary and theft and one of aggravated vehicle taking.[3]Section 65(1) of the 1991 Act says, so far as is material to this case:
"Where a person under the age of 22 years (the offender) is released from a term of detention in a Young Offender Institution ... he shall be under the supervision of a social worker of a local authority social services department."
By subsection (3), the supervision period begins on the offender's release and ends 3 months later.[4]Subsection (5) says:
"Where a person is under supervision under this section, he shall comply with such requirements, if any, as may for the time being be specified in a notice from the Secretary of State."
It is such a notice with which this case is concerned. Two of its requirements are said to be in breach of Article 5 of the Human Rights Convention.[5]The licence issued in this case was to expire on 15th February 2005. It was largely in a standard form used by the Home Office. It recited the objectives of supervision, which were to protect the public, prevent re-offending, and achieve the offender's successful reintegration into the community.[6]The first six requirements of the licence are uncontroversial. They contain the usual terms of a conventional supervision order, requiring contact and cooperation with the supervising officer and good behaviour. The seventh and ninth requirements relate to the fact that the claimant is on the sex offender's register and so restricted his contact with any person under the age of 18. These requirements are no longer in issue in these proceedings.[7]It is the eighth and tenth requirements which the claimant has permission to challenge. They say:
"While under supervision you must... (viii) Permanently reside at Lawson House Probation Hostel, 13/14, Paradise Place Stoke Plymouth and must not leave to live elsewhere without obtaining the prior written approval of your supervising officer; thereafter you must reside as directed by your supervising officer...(x)Not leave Lawson House Hostel unescorted by hostel staff, without the prior approval of your supervising officer, Hostel Senior Probation Officer or the Hostel Probation Officer. (This condition will be reviewed on a monthly basis)."
[8]The evidence from the Home Office explains that requirement (vii) is commonly applied in such cases for reasons which are self evident. Requirement (x) is applied very rarely and has to be specifically approved by the Early Release and Recall Unit of the Home Office, which it was, in the claimant's case, on November 22nd 2004.[9]The evidence from the Home Office explains, by reference to the claimant's previous convictions and background, why these conditions were imposed in this case. But it is not necessary to go into the detail of this because the issue for us is not whether the conditions should have been imposed, but whether they could have been imposed. All I need say is that if the Secretary of State was entitled to impose these conditions, I think he was entirely justified in doing so in this case.[10]There is some evidence from the claimant as to the manner in which the requirements in issue have been implemented in his case, a good deal of which is disputed by the probation service. It is not possible to resolve such a conflict of evidence on an application of this kind, so I think we must simply proceed on the assumption that the licence requirements have been implemented in accordance with their terms. Their legality is best judged in this way in any event.[11]All I need add about the facts is that on arrival in Plymouth, following his release from prison, the claimant failed to comply with the disputed and other requirements of the licence and was arrested under the provisions of section 65(6) of the 1991 Act, under which he was liable to be dealt with summarily and to a fine or a custodial sentence not exceeding 30 days. He has still to be dealt with for this and other offences committed since his release, but, at the moment, he is in custody, so we are told, for breach of the terms of the conditional bail, which he was allowed following his arrest for the section 65 offence and the other offences.[12]I turn then to the legal issue. Article 5(1) of the convention provides that:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law..."
The Secretary of State accepts that on the facts of this case the situations in which a person can be deprived of his liberty under the provisions of Article 5(1) do not apply because the claimant has served the full sentence imposed by the Crown Court.[13]Nevertheless, the Secretary of State contends that the requirements, whether looked at individually or cumulatively, do not deprive the claimant of his liberty and therefore do not offend Article 5.[14]The convention jurisprudence distinguishes the right to liberty in Article 5 and mere restrictions upon liberty of movement, which are governed by Article 2 of the fourth protocol to the convention, which the United Kingdom has not ratified. Such restrictions upon liberty of movement do not amount to a breach of Article 5. The aim of Article 5 is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion.[15]In Guzzardi v Italy3 EHRR 333, at paragraphs 92 and 93, the European Court of Human Rights said:
"In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. "
The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends."[16]These principles were helpfully summarised by Keene LJ in the Secretary of State for the Home Department v The Mental Health Review Tribunal (PH) 2002, EWCA Civ 1868, a case concerning the Tribunal's powers to attach conditions to a direction to discharge a restricted patient. At paragraph 16 Keene LJ added to what was said in Guzzardi, a further relevant consideration based upon other decisions of the Strasbourg court. This was that:
"The purpose of any measure of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise."
[17]On behalf of the claimant, Mr Lloyd submits that the requirements in question, read together, amount to a deprivation of liberty and their effect is to confine the claimant to the hostel 24 hours a day for 3 months, unless he is escorted or has the prior approval of one of three probation officers. This is more than a curfew. It equates, he submits, to the conditions which apply in an open prison.[18]In support of his submissions Mr Lloyd relies on the finding of breach of Article 5 by The European Commission in Cyprus v Turkey (1976) 4 EHRR 482. There, one of the many questions which the Commission had to consider, following the occupation by Turkey of the northern part of Cyprus, was whether a requirement that a number of Greek residents in northern Cyprus should be confined indefinitely to a hotel deprived them of their liberty. Paragraph 278 of the report states that these people could only leave the hotel under escort after having obtained permission which was only given for such things as shopping, visits to church and walks twice a week. They had only once been allowed out to inspect their own houses.[19]The other case relied on by Mr Lloyd to show how the line has been drawn between mere restriction of movement and deprivation of liberty is Guzzardi itself. There Mr Guzzardi was suspected of being a Mafioso. He was placed under special supervision for three years with an obligation to reside on the island of Asinara. The court considered the conditions of his confinement there in paragraph 95 of its decision and held that there was a breach of Article 5.[20]Both these cases can very obviously be distinguished from the facts of this case. The Greek Cypriots were gratuitously confined in the hotel and kept away from their houses for no better reason than that they were unfortunate enough to be Greek Cypriots residing in the area which had been occupied by Turkey. Mr Guzzardi was confined to an island for three years, under very restricted conditions, for no better purpose, one supposes, than to keep him out of harm's way. The difference between those situations and the present case is, I think, self evident.[21]Mr Lloyd has helpfully taken us through the Guzzardi factors, to which I have referred, and emphasised those points, which he says show that this is more than a case of mere restriction on the claimant's liberty of movement. He makes the additional point that, insofar as these restrictions were directed, for example, to the fact that the claimant had a previous conviction for a sex offence, they were disproportionate and I think he would have submitted illegal. I do not accept the latter submission. It seems to me that it is perfectly proper for the Secretary of State to take into account the whole of an offender's previous record when considering what, if any, requirements to specify in a licence for his release under section 65.[22]On behalf of the Secretary of State, Mr Sheldon submits that the requirements in question do not amount to a deprivation of liberty. The claimant is not confined to any particular part of the hostel and may go out with an escort or on his own, if he has the necessary permission. He has not yet gone out unescorted, but this is because he has absconded. One of the purposes of residence at the hostel is to assist the claimant's resettlement into the community, as is the escort requirement. The period of supervision is only for 3 months and the requirements of the licence are not enforced by physical restraint.[23]Mr Lloyd does not suggest that the requirement permanently to reside at the hostel amounts to a deprivation of liberty on its own. It obviously does not. The question is, therefore, whether cumulatively the additional requirement restricting the claimant's ability to leave the hostel, pushes this case across the line into Article 5 territory.[24]I do not think it does for the reasons given by Mr Sheldon. I would add, however, that I think each of the purposes expressed at the beginning of the licence are relevant in considering the cumulative effect of these restrictions. The restrictions are designed to provide the claimant with a fixed address and the support of the probation service so as to prevent him re-offending and therefore to protect the public and to attempt to achieve his successful reintegration into the community. The need for an escort or express permission to be out on his own, was obviously considered to be necessary in his case to further these objectives. This requirement has to be renewed each month, so if the claimant starts to show he can be trusted, which self evidently he has failed to do so far, requirement (x) may be lifted.[25]In any event, the restriction will only last for 3 months, a not unreasonable time considering the claimant was last at large for any length of time nearly 3 years ago. For those reasons I would dismiss this application.

LORD JUSTICE FIELD: I agree.

LORD JUSTICE TUCKEY: Thank you both very much.

[28]MR LLOYD: May I ask for legal aid taxation.

LORD JUSTICE TUCKEY: Do you need it?

[30]MR LLOYD: I believe so, yes.

LORD JUSTICE TUCKEY: You have it, if you need it.

Cited in 4 later judgments