R Omar Latif v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ,Mr Justice Swift |
| Judgment Date | 14 April 2021 |
| Neutral Citation | [2021] EWHC 892 (Admin) |
| Docket Number | Case No: CO/2027/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 April 2021 |
[2021] EWHC 892 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE LORD CHIEF JUSTICE & Mr Justice Swift
Case No: CO/2027/2020
Dan Squires QC & Anita Davies (instructed by Birnberg Peirce LLP) for the Claimant
Neil Sheldon QC, Melanie Cumberland & Ben Tankel (instructed by Government Legal Department) for the Defendant
Hearing dates: 3 rd and 4 th February 2021
APPROVED JUDGMENT
A. Introduction
In June 2018 the Claimant was released from prison on licence pursuant to the provisions of Chapter 6 of Part 12 of the Criminal Justice Act 2003 (“the 2003 Act”). In December 2019 the Secretary of State for Justice varied the conditions contained in that licence. The Claimant's case is that the decision to vary the licence conditions was unlawful for any or all of five reasons. First, the Claimant submits that the provisions of the 2003 Act required any such decision to be either taken or approved by the Parole Board. He submits this is so either because that is the effect of the provisions of Chapter 6 of Part 12 of the 2003 Act ordinarily construed or if necessary, that those provisions are to be so construed by reason of the interpretive obligation at section 3 of the Human Rights Act 1998 to give effect to his Convention rights. Second, the Claimant contends that the imposition of new licence conditions had an adverse impact on him and as a result he should have been given an opportunity to make representations before they were imposed. He submits that the decision to impose them was not taken in circumstances which precluded the usual application of the duty to allow representations. Third, the Claimant submits that the decision to vary the licence conditions was invalid because, contrary to the Secretary of State's policy, the decision was not initiated by the Claimant's Offender Manager. Fourth, he submits that one of the conditions added to the licence was unlawful because it was insufficiently certain. Fifth, he contends that it is a disproportionate interference with his Convention rights for that same condition to remain in force.
B. Facts
(1) The Claimant: conviction, release, recall, release .
In 2012 the Claimant pleaded guilty to an offence of engaging in conduct in preparation for acts of terrorism contrary to section 5(1) of the Terrorism Act 2006. He admitted that he had attended meetings in November and December 2010 with the intention of assisting others to commit an act of terrorism.
The Claimant was one of nine defendants sentenced by Mr Justice Wilkie on 9 February 2012. Usman Khan was one of the others. The sentence passed on the Claimant was an extended sentence of 15 years 4 months comprising a custodial period of 10 years 4 months and an extended licence period of 4 years. That sentence was imposed pursuant to section 227 of the 2003 Act. At the material time, the material parts of that section were in the following terms.
“ 227 Extended sentence for certain violent or sexual offences: persons 18 or over
(1) This section applies where—
(a) a person aged 18 or over is convicted of a specified offence committed after the commencement of this section, and
(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, but
(c) the court is not required by section 225(2) to impose a sentence of imprisonment for life or, in the case of a person aged at least 18 but under 21, a sentence of custody for life.
(2) The court may impose on the offender an extended sentence of imprisonment or, in the case of a person aged at least 18 but under 21, an extended sentence of detention in a young offender institution, if the condition in subsection (2A) or the condition in subsection (2B) is met.
…
(2B) The condition in this subsection is that, if the court were to impose an extended sentence of imprisonment or, in the case of an offender aged at least 18 but under 21, an extended sentence of detention in a young offender institution, the term that it would specify as the appropriate custodial term would be at least 4 years.
(2C) An extended sentence of imprisonment or, in the case of an offender aged at least 18 but under 21, an extended sentence of detention in a young offender institution is a sentence of imprisonment or detention in a young offender institution the term of which is equal to the aggregate of—
(a) the appropriate custodial term, and
(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences”
On 25 February 2016 the Claimant was released on licence, as required by section 247 of the 2003 Act. The material part of that section, at that time, provided:
“ 247 Release on licence of prisoner serving extended sentence under section 227 or 228
(1) This section applies to a prisoner who is serving an extended sentence imposed under section 227 or 228.
(2) As soon as—
(a) a prisoner to whom this section applies has served the requisite custodial period,
… it is the duty of the Secretary of State to release him on licence.
…
(7) In this section—
“the appropriate custodial term” means the period determined by the court as the appropriate custodial term under section 227 or 228;
“the requisite custodial period” means—
(a) in relation to a person serving one sentence, one half of the appropriate custodial term, and
(b) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2).”
The conditions in the licence were set in accordance with section 250 of the 2003 Act. At the material time, section 250 was in these terms 1:
“ 250 Licence conditions
(1) In this section—
(a) “the standard conditions” means 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.
…
(4) Any licence under this Chapter in respect of a prisoner serving a sentence of imprisonment (including a sentence imposed under section 226A, 227 or 236A) or any sentence of detention under section 91 or 96 of the Sentencing Act or section 226A, 226B, 227, 228 or 236A of this Act—
(a) must include the standard conditions, and
(b) may include—
(i) any condition authorised by section 62, 64 or 64A of the Criminal Justice and Court Services Act 2000 or section 28 of the Offender Management Act 2007, and
(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.
(5) A licence under section 246 must also include a curfew condition complying with section 253.
(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison, to—
(a) a prisoner serving an extended sentence imposed under section 226A or 226B, other than a sentence that meets the conditions in section 246A(2) (release without direction of the Board), or
(b) a prisoner serving a sentence imposed under section 236A.
(5B) The Secretary of State must not—
(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or
(b) vary or cancel any such condition included in the licence,
unless the Board directs the Secretary of State to do so.
…
(8) In exercising his powers to prescribe standard conditions or the other conditions referred to in subsection (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.”
The standard licence conditions are set out at paragraphs 3–5 of the Criminal Justice (Sentencing) (Licence Conditions) Order 2015 (“the 2015 Order”). Article 7 of the 2015 Order identifies the types of matter that may be included in a licence as prescribed conditions.
“ 7. — Other types of licence conditions
(1) The conditions in paragraph (2) are the kinds of condition that may be included in an offender's licence in accordance with section 250(4)(b)(ii) of the Act.
(2) A condition concerning–
(a) residence at a specified place;
(b) restriction of residency;
(c) making or maintaining contact with a person;
(d) participation in, or co-operation with, a programme or set of activities;
(e) possession, ownership, control or inspection of specified items or documents;
(f) disclosure of information;
(g) a curfew arrangement;
(h) freedom of movement;
(i) supervision in the community by the supervising officer, or other responsible officer, or organisation;
(j) restriction of specified conduct or specified acts.
(3) For the purpose of this article, “curfew arrangement” means an arrangement under which an offender is required to remain at a specified place for a specified period of time which is not an arrangement contained in a curfew condition imposed by virtue of section 250(5) of the Act.”
On 2 September 2016 the Claimant's licence was revoked and he was recalled to prison by the Secretary of State pursuant to the power at section 254...
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The Queen (on the application of Audi Johnson) v Parole Board for England and Wales
...conditions there is a prescribed division of labour between the SSJ and the Board: see R (Latif) v Secretary of State for Justice [2021] EWHC 892 (Admin) [2021] 4 WLR 61. Licence conditions may be “standard conditions”, or they may be ‘bespoke’ conditions, species of both of which are ide......