R Mohammed Gul v Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Simon |
| Judgment Date | 19 February 2014 |
| Neutral Citation | [2014] EWHC 373 (Admin) |
| Docket Number | Case No: CO/3156/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2014 |
[2014] EWHC 373 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Mr Justice Simon
Case No: CO/3156/2013
Hugh Southey QC (instructed by Irvine Thanvi Natas) for the Claimant
Stephen Whale (instructed by The Treasury Solicitor) for the Defendant
I. Overview of questions for decision and conclusions:
The claimant, Mohammed Gul, was convicted of five counts of disseminating terrorist publications contrary to section 2 of the Terrorism Act 2006 and sentenced to a term of imprisonment of five years. 1 His offence consisted of posting films on YouTube and other websites of material showing footage of attacks on military targets, and images of armed conflicts including those in Afghanistan, Chechnya, Gaza, Iraq and Lebanon, and improvised explosive devices being used against United States, British and other Coalition forces. He was released from prison on licence on 6 July 2012. Taking account of time spent on remand, his sentence and licence period expires on 6 January 2015.
In these proceedings, he challenges two of the licence conditions imposed on him by the first defendant, the Secretary of State for Justice ("the Secretary of State"), pursuant to section 250 of the Criminal Justice Act 2003 ("the 2003 Act") and the Criminal Justice (Sentencing) (Licence Conditions) Order 2005 SI 2005 No. 648 ("the 2005 Order"). The 2005 Order was made in the exercise of the Secretary of State's power under section 330 of the 2003 Act to prescribe what the Act refers to as "standard conditions", which must be included in a licence, and "other conditions", which may be included as additional conditions. Save for excepted categories of prisoner, section 244(1) of the 2003 Act imposes a duty on the Secretary of State to release a fixed-term prisoner who has served the requisite custodial period of his sentence on licence. The second defendant is the National Probation Service, and it is the London Probation Trust which supervises the claimant.
The two conditions challenged are not "standard conditions", but "other conditions" imposed because of the nature of the claimant's offences. Condition 5(x) provides that the claimant must not:
"attend or organise any meetings or gatherings other than those convened solely for the purposes of worship without the prior approval of [his] supervising officer".
Condition 5(xii) provides that the claimant must not:
"have in [his] possession any printed or electronically recorded material or handwritten notes which…promote the destruction of or hatred for any religious or ethnic group or that celebrates, justifies or promotes acts of violence, or that contain information about military or paramilitary technology, weapons, techniques or tactics, without the prior approval of [his] supervising officer".
In what was a very wide-ranging challenge on behalf of the claimant, Mr Southey QC contended that, at common law, conditions 5(x) and 5(xii) are ultra vires as being made without legal authority, and also violate common law principles requiring certainty. He also contended that they violate Articles 8, 10 and 11 of the European
Convention on Human Rights ("ECHR"), because they are not in accordance with the law, or if they are, they disproportionately interfere with the claimant's rights under those provisions. The third limb of his challenge is the submission that the conditions were tainted by procedural unfairness because the claimant was not invited to make representations before the defendants set them. This last point is largely advanced as an aspect of the implied procedural safeguards required by Article 8 of the ECHR. Formally, this challenge is only to the two conditions, and Mr Southey sought to downplay the impact of his submissions on the standard conditions of licences. But, if accepted, his submissions would put into question the legality of many of the other conditions, including a number of the standard conditions. This challenge thus has implications for the entire system of release on licence subject to conditions.For the reasons I give in section V of this judgment, I have concluded that the claim should be dismissed. I consider (see [31] – [40]) that the contention that the process for determining licence conditions is procedurally unfair is utterly misconceived, and (at [41] – [44]) make two observations about the way this part of the case was handled. For the reasons given in [45] – [58], the conditions challenged do not violate common law principles of "certainty" and there is, in my view, legal authority for them. Notwithstanding a degree of doubt (particularly in relation to Article 8), for the purposes of these proceedings I am prepared to assume that Articles 8, 10 and 11 of the ECHR are "engaged", in the sense that the two conditions challenged restrict rights protected by those provisions and thus interfere with them. However, for the reasons given in [59] – [65], I am satisfied that any interference with those rights is in accordance with the law and for those given in [66] – [79] that it is not a disproportionate interference, and is therefore justified. I would therefore dismiss this application.
II. These proceedings:
These proceedings were issued on 15 March 2013, some nine months after the claimant's release and the inception of the licence and its conditions. The explanation given for the delay is that the claimant's application for legal aid funding, made on 23 August 2012, was refused by the Legal Services Commission on 8 October 2012. It was not until 6 February 2013, following a successful appeal, that legal aid was granted to the claimant. On 23 May 2013 an order made by Collins J stated that "permission is hereby granted". Paragraph 5 of his observations, however, stated that "there is no merit in the contention that there has been no involvement of the claimant in advance". The words of the order do not qualify the grant of permission, but it is clear from paragraph 5 of Collins J's observations that he did not intend to give permission on the "procedural unfairness" ground. Mr Southey maintained that permission had been given, and that the court should not take into account the observations, but accepted that, if the hearing of this part of the claim proceeded as a "rolled-up" hearing, the claimant would not be prejudiced. 2
When these proceedings were filed, the evidence in support of the application consisted of the attestation on the form N461 by the claimant's solicitor that the statement of facts in section 8 of the form were true. The claimant has only recently
filed a statement. This, made on 3 January 2014, states that it is made in response to the defendants' detailed grounds which were filed six months earlier on 5 July 2013. The case management directions required the claimant to lodge an application to file further evidence within 21 days of the service of the detailed grounds; i.e. by about the end of July 2013. No reason was given by the claimant for the delay before or at the hearing. On 29 January 2014, seven days before the hearing, the Secretary of State applied for an adjournment because it had not been possible to finalise instructions, and written evidence in response to the claimant's statement, and consequently not possible to complete a skeleton argument. That application was refused. A statement, dated 3 February 2014, of Cynthia Tuitt, the manager responsible for the supervision of the claimant's licence, was filed shortly before the hearing.III. The legal and regulatory framework
The material parts of section 250 of the 2003 Act are:
"(1) In this section –
(a) 'the standard conditions' mean such conditions as may be prescribed for the purposes of this section as standard conditions, and
(b) 'prescribed' means prescribed by the Secretary of State by order…
…
(3) Any licence under this chapter in respect of a prisoner serving a sentence of imprisonment…
(4) …
(a) must include the standard conditions, and
(b) may include –
…
(ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of this paragraph as the Secretary of State may for the time being specify in the licence.
…
(8) In exercising his powers to prescribe standard conditions or the other conditions referred to in sub-section (4)(b)(ii) the Secretary of State must have regard to the following purposes of the supervision of offenders while on licence under this chapter –
(a) the protection of the public,
(b) the prevention of re-offending, and
(c) securing the successful re-integration of the prisoner into the community."
By section 330 of the 2003 Act, the power conferred on the Secretary of State to make an Order is exercisable by statutory instrument subject to the negative resolution procedure in either House of Parliament. The prescription of conditions is contained in the 2005 Order. Article 2 of the 2005 Order specifies the standard conditions to be contained in a licence and Article 3 the "other conditions". Article 2 provides that the standard conditions are to:
"(a) keep in touch with the responsible officer as instructed by him;
(b) receive visits from the responsible officer as instructed by him;
(c) permanently reside at an address approved by the responsible officer and obtain the prior permission of the responsible officer for any stay of one or more nights at a different address;
(d) undertake work...
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