Bentham, R (on the application of) v HMP Usk and Prescoed & Anor [2014] EWHC 2469 (Admin)

Case No CO/1068/2014[2014] EWHC 2469 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Date 23 rd July 2014
SITTING AT NEWPORT CROWN COURT
Before
MR JUSTICE WYN WILLIAMS
Between
THE QUEENClaimant(on the application ofClaimantRICHARD BENTHAM)Claimant(1) GOVERNOR OF HMP USK AND PRESCOEDDefendants(2) SECRETARY OF STATE FOR JUSTICEInterested PartiesSEVEN OTHERSInterested Party
Mr Stephen Field (instructed by Lewis Whittle Solicitors) for ClaimantMr Oliver Sanders (instructed by Treasury Solicitor) for Defendant and First Interested Party for The Second, Third, Fourth and Fifth Interested Parties appeared but were not represented.Hearing Hearing date: 8 July 2014(Sitting at Newport Crown Court)
Judgment

Introduction

[1]On 13 November 2012, in the Crown Court at Newport, the Claimant was sentenced to a term of two years imprisonment for the offence of causing death by dangerous driving. He had pleaded guilty to that offence at a hearing on 28 September 2012. On 22 January 2013, following a reference by the Attorney General, the Claimant’s sentence was increased by the Court of Appeal to three years imprisonment.[2]On 14 May 2014 the Claimant was released on licence. His licence was subject to a number of conditions one of which was:- “Not to enter the area of Monmouth town as defined by the attached map without the prior approval of your supervising officer.” The map attached to the licence delineated three specific areas. The effect of the condition is that the Claimant is prevented from residing in 7 The Vineyard, Monmouth which is his family home; he is also prevented from entering the town centre of Monmouth and its immediate environs although he is not prevented from walking upon or travelling upon a trunk road (the A40) which runs very close to the heart of the town centre. In the remainder of this judgment the condition is referred to as “the exclusion zone”.[3]In these proceedings the Claimant challenges the lawfulness of the exclusion zone. He relies upon a number of grounds which are discussed below. Essentially, however, he challenges the exclusion zone on the ground that it constitutes an unlawful interference with his right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR) insofar as it prevents him from living in his family home.[4]As will be apparent there are a large number of Interested Parties joined in these proceedings. The Second, Third and Fourth Interested Parties are the adult children of Dr Graham Da Gama Howells the person killed by the Claimant’s driving. In the remainder of this judgment and for ease of reference I shall refer to them as MH, SH and GH or collectively as “the victim’s family”. The Fifth Interested Party is the Claimant’s mother; I shall refer to her as such; the Sixth and Seventh Interested Parties are the Claimant’s maternal grandparents; I will refer to them respectively as the Claimant’s grandmother and the Claimant’s grandfather. The victim’s family and the Claimant’s mother attended the hearing before me and they were all given the opportunity to address me. In the event it was only the Claimant’s mother who made short oral submissions. The Claimant himself did not attend the hearing; his counsel explained that he had deliberately absented himself from the hearing so as to avoid any contact with the victim’s family. That explanation for his non-attendance was not challenged and I accept it.

The Relevant Facts

[5]On 15 October 2011 Dr Graham Da Gama Howells was driving his Ford Transit campervan along the A449 trunk road between Newport and Monmouth. He was returning to his home in Monmouth having spent the day with his children and grandchildren in Cardiff. The A449 is a dual carriageway; at all material times Dr Da Gama Howells was driving his vehicle in the nearside lane. His van was in good working order and it was properly lit.[6]That same day the Claimant had been playing golf at the Celtic Manor complex on the outskirts of Newport. Shortly before 7.00pm the Claimant set off in his BMW sports car to drive from the Celtic Manor to his home in Monmouth. He, too, was travelling along the A449. At all material times he was driving in excess of the speed limit (70 mph) and for parts of his journey he was driving very substantially above the limit.[7]There came a point in time when the van of Dr Da Gama Howells and the Claimant’s motor car were travelling in the same lane with the Claimant fast approaching the van from behind. For reasons which the Claimant did not or could not explain he did not see the van until he was almost upon it. Before he could react to avoid it a collision occurred between the front of the Claimant’s motor car and the rear of the van. The collision sent the van onto the grass verge at the side of the road where it hit a road traffic stanchion. Dr Da Gama Howells died of the injuries which he sustained as a consequence of the collision.[8]The Claimant was breathalysed at the scene. He was not over the legal limit for driving. At the scene the Claimant told a police officer that he had been travelling at 70 mph in the outside lane when he decided to return to the nearside lane. As he did so he saw the van which, he claimed, was not properly lit. He said “I slammed the brakes on but it was too late.”[9]The Claimant was interviewed under caution on 16 October 2011. He gave an account which was essentially consistent with what he had said at the scene. Further interviews under caution took place on 12 January 2012 following expert examination of the scene and the vehicles themselves. During these interviews the Claimant admitted driving at an excessive speed.[10]As I have said the Claimant pleaded guilty to the offence of causing death by dangerous driving on 28 September 2012. For the purpose of sentence the Claimant was treated as having pleaded guilty at the first reasonable opportunity although it is to be noted that there had been a hearing at the Crown Court in June 2012 when he did not enter a plea.[11]In anticipation of the hearing in June, the victim’s family made statements pursuant to the victim personal statement scheme. Each of the statements is dated 7 June 2012. Following the hearing in June 2012 GH made a second statement in which he expressed disquiet about events which were occurring in the proceedings.[12]In advance of the sentencing hearing on 13 November 2012 a pre-sentence report was prepared by Ms Kate Powell a probation officer based in Newport. The report was in conventional form. It first analysed the offence to which the Claimant had pleaded guilty; it then made an assessment of the Claimant; the report assessed the likelihood of his reoffending and the likelihood of any reoffending causing harm to the public. Finally, the report put forward sentencing options for consideration by the sentencing judge.[13]Ms Powell’s assessment was that the Claimant was remorseful – she records at paragraph 2.4 of her report that he had offered apologies to the victim’s family. Ms Powell also concluded that there was a low risk of the Claimant reoffending and that, in consequence, he did not represent an ongoing risk of harm to others.[14]Ms Powell’s report recorded that the Claimant lived with his mother and grandparents in Monmouth. She wrote:
“This address is permanently available to him and no issues were identified with its location.”
Ms Powell went on to explain that the Claimant had gone to school in Monmouth having lived in that town with his mother and grandparents following the breakup of his parents’ marriage when he was aged about ten. It is also to be noted that Ms Powell had been provided with information to the effect that the Claimant’s mother had some lifelong neurological and orthopaedic disabilities and that the Claimant was her main support in looking after her elderly parents.[15]At some stage after sentencing the Claimant became a Category D prisoner. He was then held at HMP Prescoed which is a Category D open prison. Prior to his release on licence on 14 May 2014 the Claimant had undertaken a total of 25 day releases and 5 resettlement overnight releases consisting of four nights and five days at approved addresses. In his first period of overnight release, namely from 23 August to 27 August 2013, he had been permitted to reside at his family home. Thereafter, however, in the face of opposition from the victim’s family he was required to stay outside Monmouth.[16]In a letter dated 4 November 2013 from the Claimant’s solicitor to the Governor of HMP Prescoed the Claimant applied to be released on home detention curfew. It was acknowledged on the Claimant’s behalf that such a course would be regarded as exceptional given the offence which he had committed but it was argued that his case was exceptional on account of his family circumstances. Essentially the suggestion was that the Claimant should be released so as to assist his mother in caring for his grandparents each of whom had significant health problems. On 14 November 2013 the Claimant’s application was refused. The decision maker was Mr Steve McGinty, a governor at HMP Prescoed.[17]On 11 November 2013 the Claimant had met with Ms Susan Curley, the person who had become his supervising probation officer. The meeting took place during a period of release. According to Ms Curley the Claimant told her that his plan on release was to play golf on a professional basis, if possible, and to live with his girlfriend following the completion of her studies (she was then a student in Scotland). By this time the Claimant was aware that the victim’s family objected to him residing at the family home in Monmouth during periods of release and Ms Curley says in her witness statement that she does not recall that the Claimant made any complaint about this state of affairs.[18]On 22 November 2013 the Claimant’s solicitor wrote to Ms Curley. In that letter the solicitors addressed the issue of whether it was necessary and proportionate for the Claimant to be prevented from residing in his family home. The solicitor wrote:- “We note that he has agreed previously that he would be excluded from Monmouth and accordingly has not been able to reside at his own address at 7 The Vineyard on licence. We presume that this is in consequence of relevant victim concerns; however, we would be grateful if you would identify what the relevant concerns are? We can appreciate there is a need to, as far as is possible, avoid chance meeting of Richard Bentham with a family member of the victim which could cause upset or embarrassment and Richard certainly would not wish for this to happen. Clearly if members of the victims’ family reside and work in Monmouth town, then there would be the possibility of such chance meeting were Richard to be frequenting the town. We would have thought, however, that a condition excluding Richard from the Monmouth town centre would suffice enabling him to reside at 7 The Vineyard so long as he does not enter the town itself. There are no logistical problems in achieving this, as he does not have to enter or go through the town centre to get to and from his home. Residence at his home address you will appreciate is required if he is able to fulfil his caring role for his grandparent and mother. In the circumstances, the issue of residence needs to be resolved whether it is for release on HDC or with relation to his eventual release on licence.”[19]Ms Curley replied on 31 December 2013. She asserted that it was the duty of the person responsible for imposing licence conditions to take account of the views of a victim’s family. She continued:- “Mr Bentham’s request to reside at the address of 7 The Vineyard would increase the chances of him coming into contact with the surviving members of the victim’s family. They have expressed much concern with this and are extremely distressed that they may come into contact with Mr Bentham. Therefore the proposed address of 7 The Vineyard is currently deemed unsuitable.” Therefore the proposed address of 7 The Vineyard is currently deemed unsuitable.”[20]On 10 January 2014 the Claimant’s solicitors responded as follows:
“It is fully appreciated that Probation have a duty to take into consideration the views of the victim’s family when deciding upon necessary proportionate and reasonable licence conditions. It is not accepted that it is necessary not to allow Mr Bentham to reside at his home address on licence or to exclude him from the whole of Monmouth town and its surrounding area. We re-refer you to our letter of 22 November 2013. Appropriate conditions can be attached to our client’s residence at 7 The Vineyard, to ensure his residence there does not increase chances of him coming into contact with members of the victim’s family. Any such risk can more than sufficiently be addressed by excluding Richard from Monmouth town centre and requiring that he only gain access and egress to and from 7 The Vineyard by car. You will appreciate that he will be disqualified from driving whilst on licence and will at all times merely be a passenger. It is the case, therefore, that appropriately drafted licence conditions can address relevant risk without the need to exclude him from residing at his home address. We are asking that Probation make a balanced decision in this case and clearly Probation need to take account of the effects of excluding Mr Bentham from his home address on his mother and grandparents.”
On 17 January 2014 Ms Curley responded by saying that the decision upon appropriate licence conditions would be made by the appropriate officer at HMP Prescoed and she suggested that objections to any proposed condition be taken up with that person.[21]On 18 February 2014 the Claimant’s solicitors sent a pre-action protocol letter to the Governor of HMP Prescoed. On 20 February the solicitors wrote to Mr McGinty, the governor who had refused the Claimant’s application for home detention curfew in November 2013. The purpose of the letter was to seek a review of that decision on the grounds that the Claimant’s mother had fallen and broken her femur.[22]Between late February 2014 and the date of the Claimant’s release Ms Curley took a number of steps to ascertain the impact upon the Claimant and his family if he was made subject of the exclusion zone. In particular she sought information from the social services department of the local authority and she had face to face meetings with the Claimant and members of his family. She also sought to ascertain and take account of the views of the victim’s family. The steps which she took are set out in more detail in paragraphs 3.14 to 3.24 of her witness statement (see Trial Bundle pages 234 to 238).[23]On 9 May 2014 Ms Curley submitted a recommendation as to appropriate licence conditions to the prison authorities. She recommended a number of conditions including the exclusion zone. As it happens it was on that day that HHJ Jarman QC sitting as a Deputy Judge of the High Court granted permission to apply for judicial review in these proceedings and, further, granted interim relief which had the effect of permitting the Claimant to visit the family home daily between specified hours so as to help with the care of his family. It is clear from Ms Curley’s statement that she was aware of the grant of permission and the terms of the interim relief when she made her recommendation.[24]The reasoning underpinning Ms Curley’s recommendation is to be found in the following paragraphs of her witness statement. “4.1 I submitted my formal recommendation for a non-contact condition in relation to the victim’s family and an exclusion zone to cover Monmouth to the prison on 9 May 2014. (SC1 PP32-35). The extent of the exclusion zone was based on a map which had been discussed between Jason Jenkins [a Probation Officer assigned to ascertain the views of the victim’s family] and Martha Da Gama Howells in April 2014 and it excluded from it the A40, the main road route bisecting Monmouth leading to the Midlands (SC1 P35). 4.2 By this point the court had granted Mr Bentham’s application for interim relief to the extent that he was permitted limited access to the family home between specified hours for the purpose of providing care to his family subject to limitations on his mode and route of access. 4.3 In the light of the information available to me, as outlined above, I considered the likely impact on Mr Bentham and his mother and grandparents of the exclusion zone and the likely impact on his victims of the alternatives that had been proposed, including the arrangements reflected in the Court’s order for interim relief. On balance, I considered that the need to protect the victims from the distress and anxiety they would feel knowing Mr Bentham was residing in or even just visiting Monmouth whilst serving his sentence, outweighed the impact this would have on his family’s preferred care arrangements. 4.4 In my view, Mr Bentham’s presence in Monmouth would clearly cause his victims unwarranted distress and anxiety. Although this would be much greater if they should happen to see or encounter Mr Bentham in the town, their concerns about the prospect of a chance sighting or encounter and their distress at the thought of Mr Bentham residing in or visiting their community and area whilst serving his sentence were also important factors. Furthermore, it would not be right to expect the victims to avoid certain places at certain times in order to minimise the risk of a chance sighting or encounter and or to facilitate Mr Bentham’s access to his family home: they should be able to go about their daily lives unhindered and without anxiety. 4.5 When submitting my recommendation to Governor McGinty, I confirmed that I would be giving my approval for Mr Bentham to enter the exclusion zone in accordance with the Court’s Order and pending the final hearing in this matter.” I should also set out paragraph 3.24 of Ms Curley’s statement which deals, specifically, with the care needs of the Claimant’s family. It reads:
“3.24. In response to my specific query regarding the availability of care should Mr Bentham be excluded from the family home, Carol Philips indicated in an email dated 8 May 2014 that the Integrated Care Team would implement a package of care if that became needed (SC1 P31). Accordingly, I took my decision in relation to the recommendation of additional licence conditions on the basis of the care needs of Mr Bentham’s mother and grandparents could and would be met if he were excluded from the family home in Monmouth.”
Carol Philips was the social worker within the local authority responsible for assessing the care needs of the Claimant’s family. It is worth noting, however, that in an email to Ms Curley of 29 April 2014 Ms Philips had written:
“I anticipate that I will have completed my assessments of Mr and Mrs Davies by the end of the week. Stacy Hall has completed a carer’s assessment for Tracy Benson. Since the start of the assessments, Mr Davies has sustained two falls which have led to an urgent referral to the START Team (Short Term Assessment and Re-ablement Team to offer support). Mr Davies has substantial care needs. At present, re-ablement workers from the START Team are supporting Mr Davies with washing every morning as part of the assessment process in order to determine Mr Davies’ long term care needs. Given Mr Davies risk of falling, as well as Mrs Davies health needs and Mrs Bentham’s current disabilities due to have sustained a broken leg, it is my professional opinion, that Mr Davies (and Mrs Davies post op) will require on-going support with personal care. With regard to Mr Davies rights to privacy and dignity he would prefer his care needs to be met by a male family member.”
The reference to Mrs Davies, “post op” was a reference to the fact that Mrs Davies was booked in to have surgery on 2 June 2014.[25]Mr McGinty took the decision to approve the licence conditions on 13 May 2014. He has made a witness statement in these proceedings (Trial Bundle pages 285 to 290) in which he explains his decision-making process, see, in particular, paragraphs 9-12. These paragraphs demonstrate that Mr McGinty had available to him all relevant information and that the stance he took, in summary, was that the sensitive victim issues which arose for consideration outweighed the likely impact upon the Claimant and his family of the Claimant being unable to reside in the family home and assist in caring for his grandparents and mother.[26]The Claimant, his mother, MH, SH and GH have made witness statements in these proceedings. I do not propose to set out the detail of those statements but, rather, distil those aspects which are relevant. MH lives in Monmouth in a dwelling which was the family home when she and her siblings were children and in which her father stayed when he was in the UK. SH and GH do not live in Monmouth but, from time to time, visit their sister at her home. The death of Dr Da Gama Howells and the subsequent criminal process has had a profound effect upon MH, SH and GH. In her witness statement MH maintains that she and her family remain traumatised by her father’s death and there is no reason to doubt the sincerity of that assertion. It is equally clear that MH, SH and GH found the criminal process very difficult. They do not accept that the Claimant behaved appropriately in relation to admitting his guilt and GH, in particular, does not accept that he received an appropriate sentence. MH is convinced that the exclusion zone is necessary to prevent a chance meeting between the Claimant and herself. Further she finds the thought of the Claimant being in Monmouth “unbearable”. In these views she is supported by SH and GH. For example SH says that she feels “sad” and “stressed” at the thought of the Claimant entering Monmouth and she would be left with a sense of injustice if that were to be permitted.[27]The Claimant’s mother considers the position taken by the victim’s family to be unreasonable. That is the clear thread which runs through her witness statements. Her view is that the chances of MH and the Claimant meeting in Monmouth are utterly remote since the Claimant is content to abide by a restriction which will prevent him from being in the town centre of Monmouth and its immediate environs (apart from his home) and, further, a prohibition upon him travelling to and from the family home except by motor vehicle. The Claimant’s mother considers that no or no sufficient regard is being paid to the very difficult family circumstances which result from her aged parents being sick and infirm and the fact that she, too, is incapacitated to a significant extent. She maintains that the Claimant did not behave inappropriately during the criminal process and he has received a sentence which is commensurate with his culpability when account is taken of mitigating factors.[28]The Claimant has made one short witness statement. In it he says, in terms, that he would not have objected to the exclusion zone but for the effect his inability to live at home has on the needs of his mother and grandparents.

The Law and Policy relating to Licence Conditions

[29]It is common ground that the Defendant has the power to impose a condition which creates an exclusion zone. The power to impose such a condition arises by virtue of Section 250 of the Criminal Justice Act 2003 and article 3(2)(g) of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005. It is common ground, too, that the victim’s family had the right to make representations about the Claimant’s licence conditions and that the person making the decision about the conditions was bound to take account of the representations which were made. When devising appropriate licence conditions a decision maker must take account of the protection of the public, the prevention of re-offending and the securing of the successful re-integration of the prisoner into the community.[30]In R (Craven) v Secretary of State for the Home Department [2001] EWHC Admin 850 Stanley Burnton J (as he then was) had to consider the lawfulness of a licence condition amounting to an exclusion zone which had been imposed upon a convicted murderer pursuant to the statutory regime then in force for that category of offender. The first issue for his consideration was a factual one – why was the condition imposed? The judge concluded that the condition had been imposed in order to minimise the distress caused to the victim’s family by the release on licence of the Claimant and with a view to minimising the risk of distress being caused to them by a chance encounter with him. It was against this factual background that the judge considered whether the imposition of an exclusion zone was capable of infringing the rights of Mr Craven pursuant to Article 8 of the European Convention on Human Rights. The Judge held that it was. He posed the following question:- “30. Was distress to the victim’s family a consideration that could lawfully be taken into account by the Parole Board and by the Home Secretary?” His answer is to be found in the same paragraph of his judgment. “There are two linked aspects to their distress for present purposes. There is their knowledge that, following Mr Craven’s release, there is a risk of an accidental encounter with him; and there is the risk that there would be such an encounter, which might cause them considerable distress. In my judgment these are matters which both the Parole Board and the Home Secretary are entitled to take into account in the exercise of their powers under the 1997 Act. They fall within the scope of the “broad considerations of a public character” that the Home Secretary is entitled to taken into account.” The expression “broad considerations of a public character” did not (and does not) appear in any statutory provision relating to licences. It has its origin in the speech of Lord Steyn in R –v- Home Secretary Ex parte Stafford [1999] AC 38. No submissions were advanced to me to seek to persuade me that “broad considerations of a public character” were not proper considerations for the decision maker in this case and I proceed on the basis that I am bound to take account of such considerations.[31]I should also refer expressly to paragraphs 34 to 36 of Stanley Burton J’s judgment. They read:
“34. It follows that, subject to the issues of rationality and proportionality, the interference with Mr Craven’s (and his family’s) Article 8 rights represented by the exclusion zone condition is “in accordance with the law” within the meaning of Article 8.2. The next question is whether it is “necessary in a democratic society…….for the protection of the rights and freedom of others”? (It is not suggested the condition was imposed “for the prevention of disorder or crime” or any of the other grounds permitted by Article 8.2). 35. This question in turn raises the question whether “the rights and freedoms of others” are limited to convention rights, or whether a broader range of rights and freedoms is covered by that expression. In the R on the application of P, Q, and QB v The Secretary of State for the Home Department, the Court of Appeal cited with approval the passage from the judgment of Hale LJ in In re Mr W & B (Children) [2001] EWCA Civ 757 at paragraph 54, in which he stated that the rights of a child to be taken into account under Article 8.2 are not confined to his Convention rights, and include his interests. The same must apply in the present context. Article 8.2 could have been, but is not, expressly limited to Convention rights and liberties. The citizen whose Article 8 right is infringed has the protection of the requirements of legal process, necessity and proportionality, so that it should be unnecessary too closely to circumscribe the interests of others to be taken into account under Article 8.2. Too close a definition of those rights and liberties may be too difficult and too restrictive of a variety and development of human interests. In any event, however, the respect for private life protected by Article 8 should include the victim’s family’s right to go about their business with a minimum of anxiety, and without undue restriction on their own movements. As Sedley J said in R v Secretary of State ex p McQuillan [1995] ALL ER 400, 421, freedom of movement is a fundamental value of the common law, and, I would now add, of the Convention. But a restriction on movement resulting from fear and anxiety may be just as real as one resulting from a legally enforceable prohibition, and equally deserves to be taken into account. 36. For similar reasons, I consider that the imposition of an exclusion zone on the movement of a convicted murderer, in order to minimise the risk of accidental contact between him and the family of his victim, should be considered as capable of being necessary in a democratic society. A democratic society should be sensitive to the emotional harm caused to victims of crime, particularly of the most serious of crimes, to their anxieties and concerns, and to the risks of emotional and psychological harm in the event of an encounter between convicted murderer and the family of his victim.”
[32]As I have said the decision in Craven and the reasoning which supports it is made in the context of different statutory provisions from those which govern the imposition of the licence in the instant case. That said, no one has suggested that the general approach advocated by Stanley Burnton J is not equally applicable in the present case although there is some dispute as to parameters of his judgment.[33]In the written skeletons and during the course of argument I was also referred to the decisions of Moses J (as he then was) in R (Carman) v Secretary of State for the Home Department [2004] EWHC 2004 (Admin) and Bean J in R (George O’Dowd) v National Probation Service London [2009] EWHC 3415 (Admin).[34]In Carman the issue was whether a licence condition which required the claimant to reside at a particular probation hostel was lawful. At paragraph 18 of his judgment Moses J said:- “It must be stressed at this stage that the purpose of the licence conditions is not to punish but, on the contrary, to protect the public in general or specific individuals from potential risks of harm based on risk assessment undertaken by the probation service…….” Mr Field, for the Claimant, relied in particular on this passage. Mr Sanders 35. relied upon paragraphs 32 and 33 which read:- “32. The Probation Service work hard enough as it is in seeking to protect the public while in the front line of an effective and humane criminal justice system designed to reduce the risk of re-offending. 33. They deserve the protection of this court from spurious time-consuming and expensive challenges. The court should be astute to prevent such challenges at the permission stage. 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 the 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.” At paragraph 52 Moses J expressed similar sentiments.

Mr Field, for the Claimant, relied in particular on this passage. Mr Sanders

[35]In O’Dowd Bean J was asked to determine the lawfulness of a licence condition which provided that any work undertaken by the Claimant had to be approved by his supervising probation officer and, the lawfulness of the officer’s decision to refuse to permit the Claimant to appear on the television programme “celebrity big brother”. Bean J first posed the question “is the licence period part of the Claimant’s punishment?” He answered that question, definitively, in the affirmative. He next considered whether “public perception was a legitimate element of penal policy”. Having referred to decisions of the Court of Appeal the learned judge expressed himself thus:- “33. I consider that right-thinking members of the public would take the view that an offender serving a non-custodial part of a sentence of imprisonment should not be allowed to take part in a high profile, controversial television production, promoting his status as a celebrity and with considerable financial gain. At any rate that is a reasonable view which Mr Wilson [the decision maker] was entitled to reach …..It is quite plainly not a decision “so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.” As is clear from the last part of the quotation Bean J was considering the issue of the account to be taken by a decision maker of legitimate public perception in the context of a challenge to the rationality of the decision in question. It seems to me, too, however, that public perception may be a legitimate factor to be taken into account when assessing whether or not an infringement of a convicted prisoner’s rights under Article 8 is justified.[36]I should also record that Mr Sanders relied upon the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN General Assembly Resolution 40/34 of 29 November 1985), passages within the UN Handbook on Justice for Victims (1999), EU Council Framework Decision 15 March 2001 and its replacement, EU Directive 2012/29/EU, which established minimum standards relating to the rights, support and protection of victims of crime. It is unnecessary to set out in this judgment extracts from this material. I say that because Mr Sanders acknowledged that European law is appropriately incorporated into our domestic law by the combined effect of the statutory provisions set out in paragraph 29 above and the broad principles set out in the UN Declaration as explained in the Handbook can reasonably and sensibly be equated to the “broad considerations of a public character” which permeate our case law.[37]On 1 May 2014 the Defendant published a policy document (PSI 18/2014) which is pertinent to my consideration. This document represents the up to date policy guidance relating to licence conditions and it was applicable as at 14 May 2014 when the decision in this case was made. The PSI contains two sections which are worth setting out in full. “Exclusion Zones 2.25. In some instances it will be necessary to apply for an exclusion zone to prevent an offender from entering or visiting a specific area whilst under supervision. This could include restrictions around schools, addresses of previous victims or locations where the individual is at risk of drug and/or alcohol misuse. Exclusion zones are normally used to prevent further offending associated with a particular area, for example gang related offences or to address an identified threat to a victim or other person identified as being at risk. 2.26. The purpose of an exclusion zone condition must be clear and necessary, and the size of the exclusion zone reasonableand proportionate. Furthermore there may be occasions when it is necessary to balance the views of the victim with the need to support an offender’s effective resettlement. For example, in some cases the offender, with prior approval from the supervising officer, may need to cross an exclusion zone by a prescribed route to get to work, or to enter the zone in order to seek medical care. However, it should be presumed that the access is only granted where there are no other alternatives – the offender’s convenience is not a reason for modifying an exclusion zone. 2.27. It is important that an exclusion zone is drawn as proportionately as possible, to effectively manage the risk that the offender presents and remain practical to manage and enforce. It may be necessary to obtain lifestyle details relating to the victim(s) and their families, such as where they live, work and socialise, together with similar information about the offender’s family and lifestyle patterns. Where there is a Victim Liaison Officer (VLO) involved, the supervising officer must discuss the case with them so that the victim’s views are taken into account and the VLO understands the supervising officer’s reasoning for the particular zone (see also 2.29 below with regard to victim considerations). 2.28. Any exclusion zone must be spelt out clearly where possible in terms of road or geographical boundaries such as canals and rivers, and should leave the offender and supervising agencies in no doubt as to whether a breach has occurred. For instance, an exclusion zone drawn across a middle of a field or park where it would leave any doubt as to whether the offender is inside or outside of the zone should be avoided unless there is no way to draw the zone proportionately otherwise. 2.29. The offender must be given a map of the exclusion zone(s) by the supervising officer, and a list of the road/geographical boundaries (if the map is not detailed enough to show each road or boundary). A copy of the zone boundaries (and list of boundaries if appropriate) must be sent to the appropriate decision maker when applying for the condition. 2.30. Where a large exclusion zone is being considered, supervising officers must consult with the Post Recall Review Team of PPCS for advice, who in turn may seek legal advice. The term “large” will have a different meaning in a city compared to a rural area, and different considerations will need to be adopted. For instance, the lack of road junctions in a rural area may require a zone to be drawn larger than intended in order to ensure that there are clearly defined boundaries, which would not be an issue in an inner city. Victims and Licence Conditions 2.31. Victims who qualify for the statutory victim contact scheme have the right to make representations about licence conditions that relate to them and must be informed about relevant conditions which are included in the offender’s licence under the statute of section 35 of the Domestic Violence, Crime and Victims Act 2004 (2004 Act). In cases where the victim does not qualify for statutory contact, but where the National Probation Service has used discretion to provide them with the Scheme, the victim receives the same level of service as those with a statutory entitlement, and will be able to make representations about licence conditions. 2.32. The Craven Judgement (2001) has allowed for conditions to be imposed on the licence in order to prevent distress caused to the victim by a possible encounter between the victim and offender, rather than to protect them from a specific risk posed by the offender. 2.33. Exclusion zones constitute an interference with the rights of offenders under article 8 of the ECHR (right to a private and family life). However, this interference can be justified if it is necessary and proportionate. Necessary means an appropriate way of interfering with the right bearing in mind the objective it is sought to achieve and proportionate means there is no less intrusive means of achieving that objective. R (Craven) v Home Secretary is authority that sparing the victim and the victim’s family from the emotional harm that may arise from a chance meeting with the offender is an objective that can justify the interference constituted by an exclusion zone. However, the zone and any applicable restrictions must be considered carefully and be no greater in extent or severity than is needed to minimise the risk of chance encounters whilst taking into consideration the effects on the offender’s ability to visit family or friends, undertake work or carry out other legitimate activities. The interference with the article 8 rights of the offender’s family must also be considered and it should be recognised that the complete eradication of any risk will often not be achievable whilst maintaining a proportionate exclusion zone. 2.34. A “no contact” condition or exclusion zone (see below) does not have to be restricted to the victim of the index offence. It could be the victim of a previous offence where they have been brought into the victim contact scheme on a discretionary basis, or the family of the victim of the index offence, where there is grounds to believe that the offender may target them or seek to make contact even though contact may cause distress. These conditions can even be imposed for the protection of the offender although typically it will suffice to advise the offender to avoid confrontations which could increase his risk. It might also be appropriate to have a “no contact” or exclusion zone condition for someone who is at risk of becoming a victim, or who is vulnerable to the particular risk posed to the offender. This may be particularly pertinent with offenders who have a history of domestic violence, as evidenced by previous call outs, or intelligence from children’s services etc. 2.35. While there is a preference for including the victim’s name in any non-contact conditions, this is not a requirement and in some circumstances there will be strong grounds for not doing so. In such cases the licence condition should only refer to the individual as “victim” or “victim of the index offence”. Where this is required for members of the victim’s family, they should be listed as “victim’s brother” or “victim’s mother”. A non-contact condition should never specify the “victim’s family” as it is not a clearly defined group of people. 2.36. The 2004 Act requires the probation provider to forward the victim representations about licence conditions to whoever is responsible for making the decision to place those conditions on licence (either the Parole Board/Prison Governor as appropriate). If there is a disagreement between the supervising officer and VLO on behalf of the victim about the licence conditions requested, the VLO inform the victim of those concerns, particularly if there are concerns that the requested zone is too large or not based on evidence and could be disproportionate. While the victim’s expectations should be managed, the VLO must try to ensure that pressure is not applied to a victim to change their requests which would only result in additional distress. 2.37. However if agreement cannot be reached with the victim about the appropriate licence conditions to propose, the provider of probation services is under a statutory duty to forward the victim’s representations to the Governor of the releasing establishment as per the responsibilities as per 2.9. The provider of probation services is, of course, not obliged to agree with or advocate the victim’s representations and the supervising officer may apply for a condition that differs from that proposed by the victim. In such circumstances the Governor would be required to choose the appropriate condition to include in the licence based on the evidence provided by the supervising officer and the VLO/victim.” Victims and Licence Conditions Discussion Ground 1

Discussion

[38]Mr Field submits that the exclusion zone imposed upon the Claimant is an unjustified interference with his rights under Article 8 of the European Convention on Human Rights. He also complains that the decision to impose the exclusion zone was irrational. Mr Sanders, on behalf of the Defendant and First Interested Party, concedes that the imposition and the enforcement of the exclusion zone is an interference with the Claimant’s right to respect for his private and family life. He also accepts that the interference is significant enough to engage the operation of Article 8. He submits however that the interference in this case is in accordance with the law, is necessary to protect the rights and freedoms of others and is proportionate to that aim. There was nothing irrational about the decision to impose the exclusion zone, submits Mr Sanders.[39]Let me turn to the salient facts as I find them to be. 7 The Vineyard is the Claimant’s family home; he began to live at this house at the age of ten, or thereabouts, and he lived there continuously until he began serving his sentence. The house is in a quiet residential area in reasonably close proximity to the A466 which is the road between Monmouth and Hereford.[40]The Claimant’s family home is currently occupied by his mother and maternal grandparents. The grandparents, clearly, are elderly and suffer ill health to varying degrees. On the basis of the investigations undertaken by the First Interested Party the grandparents require care on a daily basis. No doubt, the Claimant’s mother is the primary carer in normal circumstances but earlier this year she suffered a significant fracture to her leg and there is no dispute about the fact that this has incapacitated her to a degree. On the evidence there can be no doubt that the Claimant’s grandparents require a level of care which the Claimant’s mother cannot provide alone.[41]The Claimant’s grandfather has expressed a clear preference that his care should be provided by a male family member. That is hardly surprising.[42]The Claimant is a young man with a girlfriend. At a meeting with Ms Curley on 11 November 2013 he expressed the view that he would live with his girlfriend as soon as he reasonably could following his release from prison. At a meeting between the Claimant and Ms Curley on 25 February 2014 that view had changed but apparently only by reason of the state of health of his grandparents and mother.[43]I accept the Claimant’s evidence that his wish to return to the family home is motivated, primarily, by reason of the health of his grandparents and mother. In my judgment but for their state of health the Claimant would accept the exclusion zone in its entirety.[44]The Claimant has maintained, consistently, that he would accept an exclusion zone which prevented him from being within Monmouth town centre and its immediate environs at any time. His concern since February 2014 has always been to maintain a means of living at the family home. He has suggested, consistently, that he should be subject to a licence which, in effect, imposes the exclusion zone but which also permits him to reside at the family home and travel to and from the family home by car.[45]I am satisfied that the Claimant is genuinely remorseful. I am prepared to accept that this may not have been his state of mind in the immediate aftermath of the collision and in the early stages of the criminal proceedings. However by the time of sentencing I am satisfied that his remorse was genuine. That is attested to in the pre-sentence report and all the Claimant’s utterances since that time are consistent with genuine remorse.[46]I am satisfied too that the Claimant is anxious not to cause upset to the victim’s family. That is well illustrated by his express acknowledgement in his witness statement that he would not have sought to avoid the exclusion zone as imposed but for the needs of his own family.[47]MH lives in Monmouth. Her home is in a different part of Monmouth to 7 The Vineyard. As I understand her most recent statement MH accepts that the walking time between her home and 7 The Vineyard is about 20 minutes. There is no suggestion in any of her statements that she has any reason to go to The Vineyard or its immediate surrounds for any purpose connected with her normal day to day life or social activity within the town. All of her normal activities take place in and around Monmouth Town Centre and the centre lies between her own home and The Vineyard. As I have said, 7 The Vineyard is within a quiet residential area and, on the evidence, the only reason why MH would be anywhere near the Claimant’s family home would be if she was travelling along the A466. That, of course, is quite possible since the road links Monmouth with Hereford.[48]MH’s place of work is Cardiff. Inevitably, therefore, she spends a significant part of each working week away from her own home.[49]Neither SH nor GH live in Monmouth and, as I have said, their visits to Monmouth, on the evidence, are confined to those occasions when they visit their sister.[50]Mr Field submits that in the light of the evidence available to the court and, for that matter, in the light of the evidence which must have been available on 14 May 2014 it can be concluded, safely, that there is no realistic possibility of a chance encounter between the Claimant and the victim’s family even if the exclusion zone is modified as sought by the Claimant. He submits that there is no realistic possibility that any of the victim’s family would go to The Vineyard itself. It is fanciful to think, for example, that the Claimant might be standing on his doorstep at 7 The Vineyard when MH, SH, or GH was nearby. It is almost as fanciful to think that there would be any encounter in any realistic sense should there be the coincidence of the Claimant being driven along the A466 at the same time as MH or SH or GH was driving along that road. That is no more likely to happen than the coincidence of the Claimant being driven along the A40 in the vicinity of Monmouth at the same time as the victim’s family are upon that road yet that is permitted under the terms of the exclusion zone.[51]All these submissions have considerable force. I have reached the clear conclusion that the prospects of a chance encounter between the Claimant and the victim’s family are non-existent provided he is prevented from entering Monmouth Town Centre and its immediate environs (except for the family home) and provided that he travels to and from his family home by motor car. In my judgment the blanket exclusion of the Claimant from his family home is not necessary to prevent a chance encounter between the Claimant and the victim’s family.[52]I have no doubt whatsoever that the presence of the Claimant in his family home during his period of licence causes great upset to the victim’s family. That said it is not entirely easy to understand why that should be. As I have found, and as the Claimant himself has consistently maintained, his reason for wanting to be in the family home is to assist his mother to care for his grandparents. There is no proper basis to conclude other than he means what he says. I do not consider that his true motivation is any different from that which he discloses and I am satisfied that he is not uncaring of the feelings of the victim’s family in any way.[53]In all the circumstances as I find them to be I do not consider that an exclusion zone which has the effect of preventing the Claimant from visiting his family home is proportionate. I reach that conclusion having considered the possibility of a chance encounter between the Claimant and the victim’s family taking place but also having taken account of broad considerations of a public character. In this case those considerations include the views of the victim’s family not just about the possibility of unwanted contact but also relating to the Claimant being in the family home, the likely reaction of reasonable and objective members of the public with knowledge of all the relevant facts, the important consideration that the Claimant is still serving his sentence and that, therefore, his punishment is still continuing and, of course, the fact that an exclusion zone will remain in place until the expiry of the licence period which will be a very significant restriction upon the Claimant’s freedom of movement and which, for the avoidance of any doubt, is a restriction which I regard as entirely justified.[54]Before reaching this conclusion I have considered, too, whether there are undue difficulties in enforcing an exclusion zone which does not prevent the Claimant from visiting his family home. I cannot find any such difficulties exist in this case. Since 10 May 2014 the Claimant has been permitted to visit his family home between 8am and 11am and 6pm and 10pm each day subject to well defined provisions which prescribe his routes of travel. There is no evidence to suggest that he has broken the terms of the order of HHJ Jarman QC and there is no compelling evidence which suggests that there would be any real practical difficulties if a similar arrangement remained in place for the remainder of the licence period.[55]Finally I should say that there is nothing in the Defendant’s most recent policy guidance which is in any way in conflict with my conclusions thus far. On any fair reading of the policy guidance the main justification put forward for the imposition of an exclusion zone is the need to prevent chance encounters between a convicted person on the one hand and a victim or a family member of the victim on the other - see paragraph 37 above.[56]In my judgment the exclusion zone in this case constitutes an infringement of the Claimant’s right to respect for his private and family life pursuant to article 8 of the ECHR. I hope it is implicit from what I have said, thus far, that I have reached that conclusion having considered and applied the five-stage test set out in the speech of Lord Bingham in R(Razgar) v SSHD [2004] 2 AC 368. For the avoidance of doubt let me say expressly that the approach set out in Razgar is the approach which I adopted.[57]I turn to deal with the issue of whether the Claimant should be permitted to reside in his family home during the period of his licence which is the primary position adopted on behalf of the Claimant in the pleadings and in Mr. Field’s submissions.[58]I am satisfied that the prospects of a chance encounter between the Claimant and MH and/or her siblings are not increased, materially should the Claimant reside at 7 The Vineyard. Those restrictions on his movements to and from the house to which he would consent are sufficient to remove the risk of a chance encounter or at least of a chance encounter consisting of anything more than a fleeting glance. Since that might occur quite legitimately as the Claimant is being driven along the A40 in the vicinity of Monmouth I would not regard it as proportionate to prevent the Claimant from living in his family home simply on the basis of a chance encounter taking place.[59]I understand, however, that the distress which would be caused to the victim’s family should the Claimant be permitted to reside in his family home would be very substantial. How should this issue be approached? First, I accept that it is permissible to impose an exclusion zone even when the prospects of a chance encounter are minimal. As I have said broader considerations need to be addressed. Second, it is now well recognised that the families of persons killed as a consequence of dangerous driving can react towards the perpetrator of the crime in very different ways. The perpetrator must accept that some families will be appalled at the thought of him living on licence in a small town in which a close relative of the victim also resides. Further the person deciding the issue of whether an exclusion zone is to be imposed must take account of the views of the family notwithstanding that other “notional” families might express very different views. Third, I am inclined to think that reasonable and objective members of the public who were in possession of all the facts would be split as to the proportionality of preventing the Claimant from living in the family home given the very strongly held views of the victim’s family and the undoubted distress which they would suffer as a consequence of a decision which permitted the Claimant to reside in the family home. Fourth, there is no evidence that the Claimant suffers any significant disadvantage from having to reside away from the family home. As I understand it he lives within a short journey of the family home. It may very well be by now that he lives with his girlfriend or at least he could do so if that was his choice.[60]I have reached the conclusion that it would not be disproportionate to prevent the Claimant residing in his family home unless it was demonstrated, unequivocally, that he would not be able to assist appropriately with family care without also living in the home. Ultimately, that is a matter which must be resolved by the decision maker on the evidence available at the time of the decision. Certainly, as of the 14 May 2014 and the date of this judgement, it has not been demonstrated that the Claimant’s ability to provide appropriate and substantial care to his family and, in particular, to his grandfather is substantially impaired unless he resides in the family home. On the available evidence he is able to perform his caring functions if he is able to visit the home at appropriate times.[61]In reaching this conclusion I do not need to consider the human rights of the Claimant’s mother and grandparents separately. If their care needs are such that the Claimant needs to reside in the family home to contribute appropriately to the care there would be an unwarranted infringement of his Article 8 rights regardless of the rights of his mother and grandparents.[62]I should make it clear, however, that it follows from my conclusion at paragraph 60 above that should the circumstances of the Claimant’s mother or grandparents change for the worse during the licence period the issue of what constitutes an appropriate exclusion zone may have to be re-visited. On the available evidence there seems no reason to suppose that the grandparents will improve significantly so there will always be a need for substantial care. It may be, however, that during the licence period an issue will arise as to whether the exclusion zone should be relaxed to allow the Claimant to live at the family home. The Defendant and the First Interested Party will need to address that issue with an open mind should it arise and it goes without saying that an assessment should be made on the basis of the most up-to-date information.[63]For completeness, I should say that the Claimant’s challenge on the grounds of lack of rationality is rendered otiose in the light of my conclusions under Article 8.

Grounds 2, 3 and 4

[64]The Claimant did not pursue ground 4 which was a challenge based upon lack of reasons. I need say nothing about it. Grounds 2 and 3 alleged a failure to take account of material considerations. Given the manner in which I have considered the challenge under Article 8 and the conclusions I have reached these two grounds add nothing as Mr Field recognised in oral submissions.

Conclusion

[65]For the reasons set out above I consider that the exclusion zone imposed upon the Claimant is an unjustified interference with his right to respect for his private and family life. I have also indicated the extent to which I consider the exclusion zone should be relaxed although I think that the best course is that the Defendant and First Interested Party should obtain up-to-date information about the care needs of the Claimant’s family and how the care regime has been working in practice before determining precisely the relaxation of the exclusion zone which should operate henceforth.[66]To this point I have said nothing about that part of the Claimant’s mother’s third witness statement which, in effect, accused MH of lying about where she lived. The evidence given by the Claimant’s mother did not reflect well upon her. Further, and without any doubt, it added considerably to the distress felt by MH and to an extent by her siblings. Had I thought that the Claimant himself was involved in “investigating” MH and then making assertions about her which turned out to be unsubstantiated I would have concluded that his remorse was not genuine and that his apparent concern for the victim’s family was a charade. I do not think, however, that it was the Claimant who instigated investigations; I do not think he was behind the false accusations. I am persuaded that this episode was orchestrated by the Claimant’s mother and regrettable though this episode is it has no bearing upon whether or not the exclusion zone should be relaxed to permit the Claimant to participate in the care of his family.[67]I will hand down this judgment at 10.30am on Wednesday 23 July 2014 at the Cardiff Civil Justice Centre. No one need attend. Any submissions about the form of relief, costs or permission to appeal must be exchanged and filed by 4.30pm on Tuesday 22 July 2014 so that I can make the appropriate orders when the judgment is handed down. If, of course, the parties can agree an order consequent upon this judgment I will respect its terms.

Cited in 2 later judgments