Gunn, R (on the application of) v Secretary State for Justice & Anor [2009] EWHC 1812 (Admin)

[2009] EWHC 1812 (Admin)Case No CO/2399/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/07/2009
Before
MR JUSTICE BLAKE
Between
The Queen on the application of David GUNNClaimantSecretary State for Justice and the Nottinghamshire Multi Agency Public Protection Arrangements BoardDefendant
Flo Krause (instructed by VHS Fletchers) for ClaimantJames Lewis QC (instructed by Treasury Solicitors) for DefendantHearing Hearing dates: 23 June 2009
Judgment

The Hon Mr. Justice Blake :

[1]This is an application for judicial review pursuant to permission granted by Mr Justice Plender on the 13th March 2009. The claimant was born in November 1965. He has for long lived in the northern part of the city of Nottingham. On the 6 October 2006 on his plea of guilty to an offence of conspiracy to supply Class B drugs (amphetamine), in the city of Nottingham between February 2004 and February 2005, he was sentenced to 102 months imprisonment. By reason of the time spent on remand before that sentence was imposed, and the operation of automatic release provisions the Criminal Justice Act 2003 (CJA), he was due to be released from custody on the 4th April 2009. Since that day was a Saturday he was in fact released on the 3rd April.[2]Under the regime established by Sections 244, 249 and 250 CJA 2003 the claimant was released on licence for the remainder of his sentence, that is to say April 2013. The conditions attached to such a licence can either be standard conditions that are prescribed generally by the Secretary of State by order, court prescribed conditions, or, in the case of a prisoner serving a sentence for a period of twelve months or more, “such other conditions of a kind prescribed by the Secretary of State for the purpose of this paragraph the Secretary of State may for the time being specify in the licence” (CJA 2003 s. 250(4)(b)(ii)).[3]In exercising his powers to prescribe standard or other conditions the Secretary of State must have regard to the statutory purpose of the supervision of offenders while on licence namely: i) The protection of the public ii) The prevention of re-offending iii) The securing of successful re-integration of the prisoner into the community (CJA 2002 s. 250 (8)).[4]Following a process that continued through to March 2009, the claimant was assessed to be a Category 3, Level 3 risk case for management purposes and had imposed upon him stringent non-standard licence conditions as follows:- “To permanently reside at .. approved premises and must not leave to reside elsewhere without obtaining the prior approval of your supervising officer; thereafter must reside as directed by your supervising officer. Confine yourself to remain at approved premises additionally from 11p.m. to 6 a.m. and 1 p.m. to 3 p.m. each day, and, thereafter, for such a period as may be reasonably notified to you by your supervising officer; can comply with such arrangements as may be reasonably put in place and notified to you by your supervising officer so as to allow for your whereabouts and your compliance curfew requirement being monitored (whether by electronic means involving your wearing an electronic tag or otherwise). Provide your supervising officer with details such as make, model, colour, registration of any vehicle you own, hire or have use of, prior to any journey taking place. Not to contact or associate with six named persons (who were the co-defendants in the conspiracy of which the claimant was convicted) without the prior approval of your supervising officer. Not to enter the city of Nottingham as defined by the attached map without the prior approval of your supervising officer”.[5]The approved premises at which the claimant was directed to reside are located in the city of Northampton some 70 miles south of the city of Nottingham. The exclusion zone which the claimant is not permitted to enter without the prior permission of his officer includes the city boundary of Nottingham. At the centre of the exclusion zone is the city centre of Nottingham itself. To the north the zone includes the residential area of Bestwood, and Bulwell. The claimant’s former residence was in Bulwell. His parents live in the vicinity of Bestwood. As a long established resident in that area of north Nottingham he has family and friends resident within the exclusion zone, including a number of children by a previous relationship, and a partner and a child of relationship current when he was sentenced.[6]In this application for judicial review the claimant submits that the licence conditions imposed upon him are unreasonably excessive, disproportionate in their impact upon his family and private life, and are not rationally connected with the reason for which they were imposed: the protection of the public and his rehabilitation. Further, it is submitted that the high level of risk assessment of the claimant that led to these licence conditions is not supported by the evidence relied upon by the defendant. It has led to more stringent and intrusive conditions than are necessary for the relevant statutory purposes.[7]There is a background to this case. The claimant is a man with previous convictions for substantial offences. In January 1993 for convictions of wounding and perverting the course of justice he was given a total of 15 months imprisonment. In November 1998 on conviction for intent to do grievous bodily harm and threats to kill he was given a total of four years and nine months imprisonment. He was released in 2001.[8]The claimant is a brother of a man called Colin Gunn who has a notorious reputation in the city of Nottingham and beyond as a gang leader and violent offender. In 2006, Colin Gunn and two others were convicted of conspiracy to murder an elderly couple Mr and Mrs Stirland. Colin Gunn was sentenced to life imprisonment with a minimum term of 36 years. That killing was said to be a revenge killing targeted at the parents of a man called Michael O’Brien who himself had been convicted of murder of a man who was a close friend of Colin Gunn’s nephew, Jamie Gunn. Jamie Gunn was very upset at his friend’s death and died subsequently of natural causes, some reports suggest he died as a result of grief for his friend.[9]The claimant was himself charged with conspiracy to murder Mr and Mrs Stirland. He was acquitted of that charge. He has been associated with his brother in the local and national media where there are allegations that he is a senior member of his brother’s gang concerned with drug related and violent crime in the city of Nottingham and a number of places in the wider county of Nottinghamshire. The claimant denies such a status or being concerned with gang related activity whilst he has served his sentence. He wants to be able to return to the part of Nottingham city where he has family and other social connections.[10]The first defendant is responsible for the licence conditions imposed upon the claimant. In deciding what licence conditions to oppose he is advised by the multi-agency public protection arrangements board (MAPPA) now governed by the regime under the Criminal Justice Act 2003. In turn the first defendant is authorised to publish guidance to be taken account of by the MAPPA panel. There is before the court the MAPPA Guidance 2007 Version 2 produced by the National MAPPA Team under the auspices of the first defendant.[11]Broadly, there are three categories of offender who can be considered for risk management by MAPPA. Categories 1 and 2 are defined by the nature of the offence or the sentence imposed on the offender. Category 3 is described at 2.16 of the Guidance as follows:
“This category is comprised of offenders not in either Category 1 or 2 but who are considered by the RA (risk assessment) to pose a risk of serious harm to the public which require active inter-agent management. The inclusion of offenders in this category is determined by the RA. Unlike Categories 1 and 2, identification is not determined by the sentence or other disposal of the court. To register a Category 3 offender, the RA must: 1. Establish that the person has committed an offence which indicates that he/she is capable of causing serious harm to the public. This is not limited to those formally cautioned by the courts, rather it includes adults who have been formally cautioned and juveniles who have been reprimanded or warned. This is because all of those processes require an admission of guilt in relation to an offence. 2. Reasonably consider that the offender may cause serious harm to the public and that a multi-agency approach at level 2 or 3 is necessary to manage the risks. The offence may have been committed in any geographical location which means offenders convicted of a similar offence abroad fall with the MAPPA remit. Establishing that a previous offence demonstrates a capability to cause serious harm can be complex. In some cases it will relate to the circumstances surrounding the offence, rather than the seriousness of the offence.”

To register a Category 3 offender, the RA must:

[12]Assignment of an offender to Category 3 does not of itself require intensive case management. Having decided on a category of multi-agency concern there is next assessment of a person as to what level of management within that category is required. The options are level one: ordinary agency management; level two: multi-agency public protection meeting and level three multi-agency public protection meeting.[13]The Guidance at 7.2 indicates: “The three different levels enable resources to be deployed to manage identified risk in the most efficient and effective manner. Whilst there is a correlation between level of risk and level of MAPPA management (the higher the risk, the higher the level), the levels of risk do not equate directly to the levels of MAPPA management. The central question in determining the correct MAPPA level is: ‘what is the lowest level a case can be managed at which provides a defensible risk management plan?’ This means that all high risk cases will need to be managed at level two or three and similarly the complexities of managing a low/medium risk case might in exceptional circumstances, justify it being managed at level two or three especially where notoriety is an issue”. (original emphasis)[14]In the end this judicial review application has been directed at two separate but related issues. Logically the first is whether the Secretary of State and the local MAPPA board advising him were entitled to conclude that the level of risk this claimant presented to the public on release on licence was such as to put him at Category 3 and level 3 within the MAPPA guidance scheme. Secondly, whether the decision to require the defendant to live in Northampton preventing him from either travelling to Nottingham City Centre or other parts of north Nottingham within the exclusion zone, or by use of the timed curfews, severely restrict his capacity to spend time in other parts of Nottinghamshire, close to where he had previous connections, without special arrangement and prior authorisation.

Was the defendant entitled to reach the conclusion as to the level of risk?

[15]It is not necessary to recite in this judgment all the voluminous evidence relied upon by the defendant in answer to this part of the claim. The starting point is that the judge who sentenced the claimant for these offences noted that it was accepted by him that he was the senior man in a sophisticated wholesale business where very large quantities of amphetamine drugs were taken around the country, several kilos at a time, and sold for many thousands of pounds in a regular and sophisticated business like fashion. It was a large and profitable organisation. The prosecution evidence supporting that conspiracy included the product of listening devices attached to the claimant’s BMW vehicle indicating that there were conversations when the defendant was present at discussions about two of the co-defendants beating people up for money, intimidating or otherwise discouraging people from attending court. It is pointed out that the listening device did not provide any direct evidence of the claimant himself using violence on people.[16]In the application for permission to bring judicial review proceedings the claimant produced and commented on the OASys assessment dated the 24 June 2008. This was the only relevant assessment of risk that was before the permission judge. However, from the evidence filed by the defendant in response to the grant of permission, a great many more assessments and reports have become available. The process of how matters developed from June 2008 is identified at section 2 of the MAPPA meeting minutes executive summary for 27th November 2008:
“The probation service referred David Gunn to a Level 3 MAPPA meeting due to the risks he was assessed as presenting to the general public, his notoriety and the media interest in the Organised Crime Group he was part of. This assessment was based upon his previous convictions and background behaviour relating to his index offence. The referral did acknowledge that the probation service did not have a full picture of David Gunn’s past and potential activities in the community, which would have a further bearing on his risk assessment. Police assistance was sought in relation to his risk management on release, communication with other agencies and in the making and implementing of decisions about licence conditions. Level 3 management was requested as it was felt that Senior Managers needed to be involved and to have over-sight of the case as public confidence in the criminal justice system needed to be maintained.”
[17]Once the police teams had become involved and shared information which they had about the claimant and his background the focus shifted from risks attached to his high profile by reason of media reporting to intelligence- based assessment of risk. The November minutes continue:
“A police representative reported that David Gunn was part of the Gunn Crime Group and that Colin and David were still working the crime group from within the prison with particular emphasis on Bestwood. There is intelligence to suggest that Colin is first in the hierarchy and that David is second or third in command. Anything that happens in Bestwood is attributed to the Gunns. Serious crime has decreased in the north of the city – GBH, abduction; control and supply of drugs since the Gunns have been in prison. Community competence has grown on the estate and a sense of normality returned. Now that it is known that David Gunn will soon be released the estate is closing down and there is unwillingness to give police intelligence. Notts police assess the Gunn Organised Crime Group as being the top threat of harm to the community. The Gunn crime network and associations with Bestwood, Mansfield, Worksop, Kimberley and Eastwood.”
[18]A prison assessment, collated in November 2008 but referring to an earlier period, identified a former co-defendant who has been collecting money for the claimant and his brother, Colin noted a number a number of visitors to the claimant in prison and concluded:
“Escort risks assessments state: gang forming, intimidating staff, violent nature, vast history of drugs, mobile history, threats to staff and others, escape risk 23/07/2007.”
[19]On 3December 2008 the claimant was informed by letter from MAPPA “Under Section 325 of the Criminal Justice Act 2003 you fall under the MAPPA arrangements. This means that the probation, police and prison services are required to assess and manage the risk posed by certain offenders. You fall under these arrangements by virtue of having a conviction for a violent offence in the past and you will be managed as a Category three and will be managed at level three. The risks you may pose are assessed and managed through agencies who are involved with you meeting to share information. A risk management plan will be agreed and regular reviews of this and your management level will take place. Your case manager will keep you informed of these meetings”.[20]On 5 December an offender assessment system analysis (OASys) reported that the claimant’s involvement in organised crime with the Gunn crime group in Nottingham based on police intelligence presented a risk to all members of the public. That assessment was not initially made known to the claimant but was produced on the 22 April 2009 in response to the decision granting permission.[21]A police intelligence assessment produced on the 12 January 2009 stated as follows:
“(the Claimant) is head of an organised crime group based around the Bestwood area of Nottingham but impacting upon Nottinghamshire and surrounding counties. Intelligence suggests that upon his release that Gunn will resume a position of control within the OCG and will ‘settle scores’ with witnesses and others involved in the trial against him and his brother Colin Gunn and with others who he believes have acted inappropriately whilst David has been in prison. There are individuals who are believed to owe money to David Gunn and he will be enforcing these debts upon his release. The Gunns are believed to have a contract out on Michael O’Brien, currently serving a life sentence for murder and held responsible by the Gunns for the death of Jamie Gunn. David Gunn has close ongoing associations with individuals involved in the supply of firearms and class A drugs and who are believed to deal on behalf of the Gunn brothers. David Gunn is still receiving an income from this activity with some of this money being forwarded to him in prison. In conclusion, while in prison, David Gunn has continued associating with known criminals and still exercises a significant degree of control within the community. Upon release it is his intention to make his presence more prominent by reasserting himself within the criminal community and OCG. • The risk of significant violence potentially with firearms is assessed as high. • The risk of continued activities involving the supply of class A controlled drugs is assessed as high. • The threat posed to communities in Nottinghamshire is assessed as high. • The impact on communities in Nottinghamshire is assessed as high.” • The risk of significant violence potentially with firearms is assessed as high. • The risk of continued activities involving the supply of class A controlled drugs is assessed as high. • The threat posed to communities in Nottinghamshire is assessed as high. • The impact on communities in Nottinghamshire is assessed as high.”
[22]That assessment is supported in these proceedings by two witness statements filed in the present proceedings by Detective Superintendent Howick of the Nottinghamshire constabulary. Unsurprisingly the sources of the intelligence and the means by which the police make that assessment have not been revealed in these proceedings. It was apparent from the executive summary of the minutes that more information was available to the multi-agency panel if anybody had wanted it or considered it necessary to probe it.[23]The panel was well aware that the claimant disputed these assertions. It recognised that he presented himself as a family man who had complied with requests made of him during his prison sentence and wanted to return to Nottingham where he had family connections. In his witness statement filed in these proceedings the complainant again vigorously asserts that his criminal connections and current risk assessment based upon them are ill-founded and inaccurate. He also points out that there is a probation hostel that could accommodate him nearer to Nottingham than Northampton.[24]Although the claimant was not provided with all the documents adduced in evidence by the defendant, he was not kept completely in the dark about the process that led to the licence conditions under challenge. It is clear from the minutes of meetings between January and the end of March 2009 that a certain amount of information as to the assessment of risk was shared with the claimant, and proposals for his location and licence regime had been intimated to him. Equally the panel has been concerned to consider the impact on the claimant of family relationships particularly his relationship with his then current partner and five year old son by her. The executive summaries for the meetings in January and February identified Northampton as a location to keep the claimant out of Nottingham but close enough to his partner and child to maintain contact. It was recognised that conditions should be “reasonable, justified and proportionate”. Later there was discussion of funding arrangements for travel to maintain this contact.[25]I appreciate that the claimant believes that the police may have a jaundiced view of him because he was acquitted of conspiracy to murder, and has been associated with his more notorious brother in media reporting and public reputation. All those are points that the claimant has made to those supervising his licence arrangements. They have had the benefits of his statements and representations from his solicitors and were able to give such weight to those matters as they think fit.[26]In response to a submission made by the claimant as to the accuracy of the police assessment given above, I am aware that the claimant’s nephew, Jamie Gunn, was not murdered by Michael O’Brien but the victim was said to be a close friend of Jamie Gunn’s, and Jamie became very upset and subsequently ill as a result of the death of his friend. I am confident that these facts were well-known to the police as well, and the report noted above was not acting on a mistaken assumption that O’Brien had murdered Jamie Gunn. No other specific basis has been identified for challenging the accuracy of the information disclosed.[27]For the claimant, Miss Krause submits: i) There has been a shift in the assessment of the claimant from media based risk in June 2008 to intelligence based risk from December 2008 through to March 2009. That inconsistency in approach undermines the reliability of the assessment. ii) There is insufficient hard evidence disclosed to support the underlying intelligence assessment produced by the police. iii) There is inconsistency in the assertions that the claimant has continued to lead a criminal organisation which is still active whilst in prison, and the information that levels of drug related and gang related crime in relevant parts of northern Nottingham city have gone down. iv) There is inconsistency that the allegations that the claimant’s criminal activities extend to other parts of Nottinghamshire with the exclusion zone not being extended to include those parts. It is suggested that either there is no rational connection between the allegations and the subsequent exclusion zone and licence conditions, or that indicates a lack of confidence in the reliability of the information in the first place.[28]The claimant is not facing trial for these allegations; nor are his licence conditions intended to form a supplementary punishment for him, although he remains serving his sentence during the period when he is released on licence. It is not necessary that they be proved either by a criminal trial or by a civil balance of probabilities before they can be taken into account in a matter of risk assessment. The assessment of risk is not for this court to make. It is very much for an expert multi-agency panel sharing relevant information that they consider to be credible and current and pertinent to the issues in hand.[29]Assessment of risk is always an exercise in judgement based on all the available material, some of which may be fragile, hearsay, confidential and disputable. The decision-maker will have to act fairly. Having regard to the nature and purpose of the exercise, it is the duty of those entrusted with making assessments in the absence of a trial or full disclosure to the person concerned to assess such material with care before relying on it. It is necessary for the decision-maker to consider any counter-indicators against the assessment in question, to consider any reason why any particular source of information may be unreliable in some respects, to have regard to what the claimant says in response to the gist of the material and to set the information against what is known, admitted or provable. However the decision is for the panel to make and not this court. The function of this court is to review the process with an appropriate intensity of scrutiny depending on the evidence, the issues and the context; but not one of appeal or making an independent determination for itself of questions of risk.[30]In my judgment, the level of disclosure that has been provided to this claimant more than meets the requirements of common law fairness. He has been provided with substantially more than a bare gist of allegations made against him. He has now been provided with all the reports of the Panel and their minutes of the 17 October, 27 November, 29 January 2009, 26 February 2009, 26 March 2009 and the resulting OASys report of the 31 March 2009. He has been provided with police intelligence assessments and a witness statement from an officer supporting those assessments. He has had an opportunity to adduce any exculpatory evidence in response since the 22 April 2009. He has not done so.[31]It is said that crime reduced in the area of Bestwood since the claimant has been in prison and that cooperation with the police has increased. There is a fear that both these trends may reverse unless the claimant is subject to very active management. I do not accept the submission that there are inconsistencies in these assessments. The fact that there may be evidence of continuing links to organised crime while the claimant is serving his sentence in detention is not inconsistent with the indication that the levels of reported crime in the areas where the claimant was said to be active has gone down.[32]I conclude, in the context of what was known to the panel about this claimant, and the careful process of evaluation that preceded the assessment, merely summarised above, it was fully entitled to conclude that the claimant was a dangerous offender whose future activities may cause real risk of harm to members of the public. Acting on the advice of the panel, the Secretary of State could lawfully assign his case to Category 3 and Level 3 management of risks.[33]It is that assessment that informs the second question in this case, namely whether the licence conditions were proportionate in all the circumstances of the case. Were the licence conditions proportionate to the risk identified and the claimant’s rights to family and private life?[34]It is common ground between the parties that the legitimacy of the conditions attached to the claimant’s release on licence is to be judged in accordance with the principles developed in human rights law and in particular with the requirements of Article 8. It is clear from both principle and decided authority that the mere fact of being sentenced for a serious offence does not deprive the offender of his Human Rights. In the case of the Queen on the application of Craven v Secretary of State for the Home Department and the Parole Board [5 October 2001] CO/1428/2000 (unreported), Mr Justice Stanley Burton (as he then was) rejected a submission by the Secretary of State that Article 8 did not apply to licence conditions because the applicant had been lawfully deprived of his liberty by the sentence of the court (Paragraphs 25-29). This decision was followed by Mr Justice Moses (as he then was) in the case of R on the application of Carman v SSHD [2004] EWHC 2400 (Admin) 30 July 2004 (unreported).[35]Article 8 of the ECHR provides as follows:- 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with an exercise of this right expect such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others[36]The starting point is that the claimant has the right to respect for his private and family life and his home. The mere fact that the claimant has been sentenced to a substantial term of imprisonment and under the relevant sentencing regime he was to be released on licensing conditions on conditions that the Secretary of State thought appropriate in all the circumstances of the case, does not of itself answer the question whether the licence conditions imposed were lawful, were for a relevant purpose, and proportionate in all the circumstances.[37]By contrast to the assessment of risk for management purposes, these are questions for the determination of the court in these proceedings. The court’s assessment is assisted by the fact that the public authorities concerned (the Secretary of State and the MAPPA panel) both had duties to consider and act in accordance with the claimant’s human rights (Human Rights Act 1998 s.6). These duties have, in my judgment, assisted a sensible and transparent process in this case where the claimant’s rehabilitation and restoration of community ties has been promoted with the interests of the public in securing that he does not resort to a crime life style and re-offend.[38]Miss Krause complained that in the MAPPA minutes considering the question, the discussion focused upon the justification of interference with the rights, and there was no emphasis on the duty to respect the right to family and private life itself. I do not accept that submission. There are abundant references in the reports to concerns as to the impact of licence conditions upon the claimant’s ability to maintain family life with his then partner and young child, as well as his former partner and children by her. The board was well aware of the claimant’s wish to maintain contact with his parents and social circle in north Nottingham. It spent much of its time considering the practical means to maintain that contact. There is no reason to believe that the panel misunderstood or attached no importance to those factors. Indeed, it is only if the panel recognised of the right to respect for private and family life under Article 8(1) that it is necessary to consider the justification of interferences provided in accordance with Article 8(2).[39]It is common ground that licence conditions restricting the complainants ability to live in his previous residence and visit family members at their residence interferes with the exercise with the right to respect for his private and family life and home. The licence conditions are provided for in the law governing release from the custodial term. They were imposed following a procedure that I have found to be lawful and rational. The assessment of risk has followed a procedure and published criteria set out in the MAPPA guidance. For all these reasons the interference is in accordance with the law within the meaning of Article 8(2). It is apparent that the basis of the MAPPA level 3 assessment was the protection of the public. Accordingly this is a legitimate purpose for interference with such rights as is provided for in Article 8(2).[40]The central question is, therefore, whether the interference is necessary in a democratic society for the reasons identified. The House of Lords has given importance guidance on how that concept is to be applied having regard to the case law of the European Court of Human Rights. The case of R v Secretary of State to the Home Department ex-parte Daly [2001] 2AC 532 is particularly pertinent as it was a case concerning a prisoner’s rights to access to his correspondence with his lawyer. In the case of Huang v Secretary of State for the Home Department [2007] 2AC 167, the House of Lords indicated what the task of the court was in assessing proportionality. Summarising this jurisprudence Clayton and Tomlinson The Law of Human Rights, (2nd Edition 2009), volume 1, paragraph 6.92 states “The House of Lords has held that proportionality requires the court to examine four distinct issues:• Whether the objective justified the interference is sufficiently important to justify limiting the right;• Whether the measures designed to meet the objective of the interference are rationally connected to it;• Whether the means used to compare the convention right are no more than is necessary to accomplish that objective;• And whether the interference strikes a fair balance between the rights of the individual and the interests of the community, which require carefully assessing the severity and the consequences of the interference.”• Whether the objective justified the interference is sufficiently important to justify limiting the right;• Whether the measures designed to meet the objective of the interference are rationally connected to it;• Whether the means used to compare the convention right are no more than is necessary to accomplish that objective;• And whether the interference strikes a fair balance between the rights of the individual and the interests of the community, which require carefully assessing the severity and the consequences of the interference.”[41]Ms Krause submits that the licence conditions in this case do not meet these tests. If the claimant’s gangland connections were all over the county of Nottinghamshire there is no point in preventing him from entering only part of it. If he can influence criminal conduct from prison or even Northampton then the restrictions on entering Nottingham are pointless. She submits that taken as a whole they are neither fish nor fowl but an inconsistent amalgam that had damaged the claimant’s ability to continue a relationship with his girlfriend, take employment where he is most likely to find it and therefore undermine his ability to rehabilitate himself and lead an useful life.[42]I do not accept these submissions. If central Nottingham and the residential areas to the north of the city have a particular significance as places where the claimant’s criminal activity occurred, and where he and gang members associated with him are said to have particular influence, it assists both the claimant’s rehabilitation and the safety of the public if the claimant is prohibited from the time being from entering these areas without good reason and the prior approval of his probation officer. The intelligence background suggests reasonable concerns about settling old scores, intimidating witnesses, and putting members of the public fear. A supervised return to society in areas where the claimant is less well known rationally promotes the purpose behind the licence conditions.[43]As to the submission that if the defendant accepted the intelligence case against the claimant, he should have imposed a whole county ban, that ignores the fact the defendant has to achieve a fair balance between very different rights, the interests of the public and those of the claimant and his family members. The MAPPA guidance, the information derived from the meetings of the panel, and the witness statement of Detective Superintendent Howick that there was concern that the licence conditions should be limited to the conditions least intrusive to the claimant’s family and private life but nevertheless gave a reasonable degree of protection to the public. It is neither surprising nor a matter of complaint that the claimant was not exiled to some remote corner of the United Kingdom or banned from the whole county of Nottingham. Mr Lewis QC was able to demonstrate that Northampton is sufficiently proximate to permit visits to parts of Nottinghamshire but sufficiently far away to prevent extended stays there, at least without the prior permission of his supervising officer.[44]I do not consider that the overall effect of these conditions on the claimant was disproportionate or unfair. The minutes disclose that arrangements were to be made for the claimant to be able to contact his partner and child if she had wanted the relationship to continue. It appears that she did not, and no evidence has been forthcoming from her as to why that was. The claimant is not banned from driving by his licence conditions, but like anyone else will have take a test and acquire a vehicle. Financial restraints were not prayed in aid as a problem in this case. It is likely that his licence conditions will become gradually more relaxed if he responds to the present level of supervision and demonstrates an ability to earn an honest living away from his former criminal haunts. They cannot last indefinitely.[45]Applying all the criteria for assessing whether an interference with Art 8 (1) rights is justified in this case on the facts, I am quite satisfied that it is. The application therefore fails under this head of challenge as well.

Post script:

[46]In the light of the evidence recited above and my clear conclusions based on it, it is perhaps surprising that permission was ever granted in this case. It seems that the papers came before Plender J on an urgent application for expedition by curtailing the time for the acknowledgement of service (AOS) from 21 days to 14. At that stage he would not have had the defendant’s grounds for acting as he did.[47]It is a general principle that permission should not be granted when the court is considering directions only and without hearing the proposed defendant. This was emphasised in the context of a challenge to licence conditions by Moses J in the case of Carman (above) at [19]- [20]. The most that can be sought is an application for curtailment of the time for lodging an AOS, and it may be in the future that such applications can be considered by a practice master.[48]For myself, I would not have regarded this case even as one where time for lodging the AOS should have been abridged from the 21 days allowed under CPR 54. I understand the claimant’s objection to the licence conditions, but no irreparable harm was caused by submitting to them for a short period whilst the application is considered on the best information reasonably available within the time permitted by the rules. The appropriate time for judicial case management is when permission is to be considered. If appropriate a direction for expedition in listing can then be made. This was not a case where the liberty of the subject was stake. There is a very real and important distinction between deprivation of liberty and restriction of it.[49]Too many claims for expedition or curtailments of the time for filing summary grounds of resistance will prevent the court being able to respond appropriately in cases where a failure to act quickly could result in real harm being caused. It is to be hoped that there is restraint and economy in the making of such applications. It would have been better if the assessments relied on had been obtained by the claimant from the defendant before the application was made, and then the true picture could have been considered.

Cited in 2 later judgments