The Queen (on the application of Richard Bentham) v Governor of HMP USK and Prescoed and Another Seven Others (Interested Parties)

Hearing date: 8 July 2014

Introduction

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.

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".

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.

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

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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.

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...