R (on the application of ZX) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Lindblom,Sir James Munby P |
| Judgment Date | 17 March 2017 |
| Neutral Citation | [2017] EWCA Civ 155 |
| Docket Number | Case No: C1/2015/4360 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2017 |
[2017] EWCA Civ 155
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE KERR
CO/5437/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lord Justice Davis
and
Lord Justice Lindblom
Case No: C1/2015/4360
Amanda Weston and Shu Shin Luh (instructed by Tucker Solicitors) for the Appellant
David Manknell (instructed by Government Legal Department) for the Respondent
Hearing date: 21 February 2017
Approved Judgment
Introduction
The appellant, a married man with three children, was convicted, on his plea of guilt, of two terrorism related offences. He was sentenced in the Crown Court on 6 June 2014 to a term of 3 years imprisonment. He was subsequently released on licence. Thereafter conditions were imposed on his licence precluding him from having contact with his children, save as directed by the National Probation Service (NPS) and local Children's Services.
He now challenges the imposition of those conditions. It is said on his behalf that the NPS had no lawful entitlement to give a direction separating the appellant from his children. It is submitted that there was no properly identified risk and also that no separation could properly be directed without due compliance with the provisions of the Children Act 1989 and Children Act 2004 and, if need be, without an order of the Family Court.
Kerr J, after an oral hearing, refused the application for permission to apply for judicial review. In a detailed ex tempore judgment given on 16 December 2015 he decided that the grounds raised were not arguable. In due course permission to appeal to this court was granted by the single Lord Justice on the papers.
Before us the appellant was represented by Ms Amanda Weston and Ms Shu Shin Luh. The respondent Secretary of State for Justice was represented by Mr David Manknell.
Facts
The background facts are set out in great detail in the judgment below (albeit not in as great detail as Ms Weston would seem to wish). It is not, however, necessary for the purposes of this judgment to repeat them at any great length.
The appellant, who is of Bangladeshi origin, was born in London on 15 June 1982. He is a British citizen. On 1 June 2002, he married. There are 3 children of the marriage, 2 boys born in 2003 and 2005 and a girl born in 2011. The family has always resided in the London area.
It appeared that whilst at college the appellant had become involved in the proscribed organisation Al Muhajiroun. Thereafter in 2005 he received a community sentence for an offence of possession of an offensive weapon. On 18 April 2008 he was convicted of an offence under s. 15 of the Terrorism Act 2000 and sentenced (after an appeal against sentence) to 18 months imprisonment, together with an additional short further term for a Bail Act offence. On his release, there was a referral to social services because of concerns about potential radicalisation of the children, who were receiving home tuition. In the event he remained living with his family.
On 5 June 2013 he was arrested on suspicion of committing further terrorism related offences. In due course he was charged with 5 offences. He was remanded in custody. On 24 March 2014 he pleaded guilty, on a basis, to a count of dissemination contrary to s. 2 (1) of the Terrorism Act 2006 and a count of publication contrary to s. 1 (2) of that Act. On 6 June 2014 he was sentenced to 3 years imprisonment. On 5 December 2014 he was released on licence.
A number of conditions were attached to his licence. The standard conditions included conditions that, for example, he should not re-offend and should behave properly. Conditions specific to his case were also included, designed to regulate the risk that he might continue to involve himself in activities promoting terrorism. He was also required to live in approved premises in Camden.
Because of the latest charges, and concerns arising in consequence, there had been various visits by local social services to the family home in Tower Hamlets. The children had by now been enrolled in mainstream education. It is recorded that the relevant social workers had been provided with specific training concerning issues of radical beliefs and assessments of families in that context. The view of social workers at the time was that there did not appear to be a risk to the children through their parents' beliefs.
By the beginning of 2015 it was recorded by social services that the appellant was "engaging so far with no concerns." He had resumed daily contact with his children and was, in fact, noted by the NPS (as communicated to social services) to be spending most of his time in Tower Hamlets with his family. There continued to be a number of home visits by social workers at the family home and on the children at school.
In around April 2015 there was discussion, at multi-agency level, as to whether the appellant could leave the approved premises in Camden and return to the family home. It was recorded that the NPS was raising child protection concerns through risk of exposure to extremism within the home; whereas it was recorded that the local authority's own assessment "has shown that this is not in fact the case for these children". The position was further complicated, however, by marital difficulties between the appellant and his wife and her reluctance for him to return to live at home. Thereafter there were numerous discussions of the position between and by the various agencies, the details of which I need not set out. No decision was made at that time as to whether he should be permitted to return home.
On 29 July 2015 there was a Probation Management Review. By this time, the appellant was spending up to 12 hours a day at the family home. Concerns were raised that he still espoused extremist views (he of course among other things had acquired a history of repeat offending in this regard). It was decided that pending further assessment he should be suspended from visiting the family home or having unregulated contact with his children. This was notified to the appellant by letter dated 7 August 2015. It is that letter which is the subject of the present challenge.
The letter referred to the background. It was indicated that it was the current assessment of the NPS that home visits should cease whilst the appellant remained subject to statutory supervision, albeit the situation would be subject to review. It was noted that Children's Services were reviewing the family circumstances and that the children were currently assessed as in need. It was said: "Given NPS' safeguarding children responsibilities, we also need to consider the appropriateness of your having contact with your children other than as assessed by Children's Services. At this juncture, the NPS will be adding the children to your licence. Therefore you may not have contact with them other than as directed by NPS and Children's Services." The letter went on at a later stage to say: "Whilst this assessment is undertaken, you are not to attend the address …. or have direct contact with your children… Both conditions have been added to your licence." I add that there seems to have been some muddle in formally amending the licence conditions but I do not regard that as material.
The appellant complained about this decision. In a further letter from the NPS dated 28 August 2015 in response to his complaint, it was explained that the NPS had undertaken no home visit itself since his release. The decision to preclude contact with his children was a "joint one" between the NPS and Tower Hamlets Social Services. It was said that a further safeguarding assessment was needed: "Safeguarding procedures are paramount in any case that we manage, especially when it concerns the welfare of children." It was also said that it was hoped that the exclusion of access to the children would be limited, pending the further assessment.
An Oasys assessment prepared on 6 November 2015 indicated that Children's Services found no concerns. The view of the MAPPA panel, however, was that there was currently insufficient evidence as to risk posed by the appellant to the children in terms of radicalisation and that further assessment was required.
There had in fact throughout continued to be frequent further multi-agency discussions and assessments. On 18 November 2015 limited contact with the children – extending in due course to unsupervised contact for 5 hours a day – was permitted.
In the meantime, however, solicitors instructed by the appellant had written on 6 October 2015 complaining at the new licence conditions. It was asserted that they were unlawful, unnecessary and disproportionate by reference to his Article 8 rights. It was said that the appellant had behaved well as a prisoner and had abided by his previous licence conditions. None of the previous investigations had expressed concerns about radicalisation of the children and there was no basis for any current concern.
These Judicial Review proceedings were commenced on 6 November 2015. They claimed a quashing order, declaratory relief and damages.
The legislative framework and related policy guidance
So far as concerns the imposition of conditions when a prisoner is released on licence the position is set out in s. 250 of the Criminal Justice Act 2003. By s. 250 (4) it is, in summary, stipulated that the relevant licence for a sentence exceeding twelve months must include the standard conditions (as may be prescribed) and may include other conditions (of a kind that may be prescribed). It is further stipulated by s. 250 (8) that in so prescribing the Secretary of...
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