Lee v Secretary of State for Justice

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Fulford
Judgment Date06 December 2013
Neutral Citation[2013] EWHC 4483 (Admin)
Date06 December 2013
Docket NumberCO/4522/2013

[2013] EWHC 4483 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Manchester Civil Justice Centre

1 Bridge Street West

Manchester

Greater Manchester

M60 9DJ

Before:

Lord Justice Fulford

Mr Justice Blake

CO/4522/2013

Between:
Lee
Claimant
and
Secretary of State for Justice
Defendant

Mr Armstrong appeared on behalf of the Claimant

Miss Cumberland appeared on behalf of the Defendant

Lord Justice Fulford

This is the judgment of the court.

Introduction

1

On 2nd September 2005 the Bolton Crown Court imposed a sentence on the claimant of imprisonment for public protection ("IPP"), under section 225 of the Criminal Justice Act 2003 (" CJA"), with a tariff period of 9 months less the time he had spent on remand. The tariff expired 163 days after the sentence was imposed, on 12th January 2006.

2

Section 225 of the CJA as originally enacted was in the following terms:

Life sentence or imprisonment for public protection for serious offences

(1) This section applies where—

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2) If—

(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.

(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) as to the release of prisoners and duration of licences.

(5) […]

3

The claimant had committed a "serious offence" and was deemed by the sentencing judge to be at "significant risk" of causing "serious harm" to the public by the commission by him of a further "specified offence". The terms in quotations were all defined in the CJA. There are 153 specified offences.

4

He was 39 at the time the sentence of IPP was imposed, and the offence was that of burglary with intent to commit criminal damage (at the home of his former wife). The crime was committed when she and her young children were present, on the 13th April 2005. The claimant was said to have been in a drunken rage. He had eight previous convictions for offences which included assault occasioning actual bodily harm and criminal damage.

5

In due course, the claimant became a party to litigation in the courts of England and Wales and the European Court of Human Rights on the issue of whether he was lawfully detained during the period after he had completed the tariff period of his sentence but was unable to access courses that would reduce his suggested dangerousness. We consider those decisions, to the extent to which they are relevant to the present issue, later in this judgment.

6

The claimant was released on 25th July 2011 and he is currently subject to 12 licence conditions, some of which are standard in nature and others have been tailored to meet the risk he is said to pose. They are as follows:

(i) he shall place himself under the supervision of whichever supervising officer is nominated for this purpose, from time to time;

(ii) he shall, on release, report to the nominated supervising officer and keep in touch with that officer in accordance with the officer's instructions;

(iii) he shall, if the supervising officer so requires, receive visits from the officer wherever he is living;

(iv) he shall reside permanently at [a specified address] until his independent accommodation is acquired and approved by his supervising officer. Thereafter he shall live at an address only as directed by his supervising officer;

(v) he shall undertake work, including voluntary work, only where approved by his supervising officer and shall inform that officer of any change in or loss of such employment;

(vi) he shall not travel outside the United Kingdom without the prior permission of his supervising officer;

(vii) he shall be well behaved and not do anything which could undermine the purposes of supervision on licence which are to protect the public by ensuring that their safety would not be placed at risk and to secure his successful reintegration into the community;

(viii) he shall not make direct or indirect contact with the victim […];

(ix) he shall not enter the area of Bolton as defined on a map without the prior written consent of his supervising officer;

(x) he shall continue to address alcohol issues by attendance at a local relapse prevention group within his local community;

(xi) he shall seek immediate medical attention if he feels depressed;

(xii) he shall comply with the directions of his supervising officer to ensure that he participates in offending and relapse prevention work.

7

The licence period is indeterminate because he was found to be a dangerous offender under the provisions of section 225 and he is only entitled to apply to the Parole Board under section 31A of the Crime (Sentences) Act 1997 to have his licence cancelled once 10 years have elapsed following the date of his release. Thereafter, if his application to terminate the licence is refused, he may re-apply at yearly intervals.

8

Section 31A provides:

Imprisonment or detention for public protection: termination of licences

(1) This section applies to a prisoner who—

(a) is serving one or more preventive sentences, and

(b) is not serving any other life sentence.

(2) Where—

(a) the prisoner has been released on licence under this Chapter; and

(b) the qualifying period has expired,

the Secretary of State shall, if directed to do so by the Parole Board, order that the licence is to cease to have effect.

(3) Where—

(a) the prisoner has been released on licence under this Chapter;

(b) the qualifying period has expired; and

(c) if he has made a previous application under this subsection, a period of at least twelve months has expired since the disposal of that application,

the prisoner may make an application to the Parole Board under this subsection.

(4) Where an application is made under subsection (3) above, the Parole Board—

(a) shall, if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force, direct the Secretary of State to make an order that the licence is to cease to have effect;

(b) shall otherwise dismiss the application.

(5) In this section—

"preventive sentence" means a sentence of imprisonment [or detention in a young offender institution] […]for public protection under section 225 of the Criminal Justice Act 2003 or a sentence of detention for public protection under section 226 of that Act [ (including such a sentence of imprisonment or detention passed as a result of section 219 or 221 of the Armed Forces Act 2006)];

"the qualifying period", in relation to a prisoner who has been released on licence, means the period of ten years beginning with the date of his release.

9

Additionally, the supervision element of the licence can be suspended following a minimum of 4 years trouble free existence in the community, if there is evidence of:

(i) a stable life-style, good integration and a balanced outlook on the part of the offender and an open relationship with his supervising officer;

(ii) a gradual reduction in the requirement for contact by him with the Probation area;

(iii) crises, if any, have been faced and dealt with sensibly, with proper involvement of the supervising officer; and

(iv) where appropriate, there has been an indication that the licensee would turn to the Probation area for assistance on a voluntary basis if necessary.

(paragraph 13.9.2 of Prison Service Order 4700)

This is, we note, a policy document rather than a statutory requirement. It is a direction to the probation officer who is supervising the individual concerned.

10

An application to suspend supervision in these circumstances will be considered by the Lifer Review and Recall Section ("LRRS") of the National Offender Management Service following receipt of a written report endorsed by the relevant assistant chief officer within the probation officer or someone of equivalent rank and it will include a complete risk assessment.

11

Where there are conditions on a licence and a recommendation has been made for variation by the probation officer, the case will be referred by the LRRS to the Parole Board. Thereafter, the Secretary of State, in accordance with recommendations from the Parole Board, may add, remove or vary the claimant's licence conditions at any stage during the licence period. In the claimant's case condition 9, which relates to the exclusion area, was recently amended, following a request by the claimant, in order to enable him to visit his mother. The probation officer is entitled to act on his own initiative, regardless of whether there has been a request from the offender.

12

As to the licence conditions generally, the standard conditions and the tailored conditions are only to be placed on the licence when they are necessary for the management of the offender in the community and they are proportionate to the objectives that have been set for...

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2 cases
  • The Queen (on the application of Paul McAtee) v The Secretary of State for Justice
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 Diciembre 2018
    ...Court comprising Fulford LJ and Blake J, sitting in Manchester. By a full and detailed judgment of the court dated 6 December 2013, [2013] EWHC 4483 (Admin), the claim was dismissed. The court decided that such interference with private and family life as was occasioned by the mandatory te......
  • Philip Allan Main Against Scottish Ministers
    • United Kingdom
    • Court of Session
    • 22 Mayo 2015
    ...offence equivalent (R (Irfan) v SSHD (supra)) and the provisions for release on licence (Lee v Secretary of State for Justice [2013] EWHC 4483 (Admin)). [28] The Act discriminated according to the level of sentence and the results of any review. R (F) (supra) had made it clear that an autom......

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