England and Wales High Court (Administrative Court) Decisions

The facts

“Mr and Mrs Laing have asked that they be kept informed of all developments relating to Stephen Craven’s sentence and in particular wish to be informed of arrangements for release. In order to minimise any possibility of chance encounters, the family ask that Stephen Craven should not return to reside in the Newcastle or North Tyneside area.

If SC is released on life licence the family would ask for conditions to be incorporated in the licence:

(i) Excluding SC from the Newcastle/North Tyneside area.

(ii) Prohibiting SC from any form of contact with (the family and Penny Laing’s boyfriend).”

These requests were the origin of and the reason for the imposition of these conditions in Mr Craven’s licence.

“Included in the papers before the Board when it considered Mr Craven’s case, was a report from the Northumbria Probation Service Victim Liaison Unit. This provided the outcome of several interviews held with the parents of your client’s victim during which they expressed a desire, in the event that Mr Craven was released on licence, for a condition to be imposed preventing his exclusion (sic) from the Newcastle/North Tyneside area and from attempting to contact his family.

The Board noted that Mr Craven was to be released to an address in Newton Aycliffe, Co Durham. It further noted the following from the dossier:

‘The victim’s family live to the north of Newcastle upon Tyne approximately seven miles by road. Mr Craven has informed me that he would not intend to contact the family and he would be agreeable to a condition being included in his Resettlement Licence which prevents this.

Notwithstanding that Mr Craven continues to maintain his innocence he has always co-operated fully with the Probation Service. He is aware that if he is released subject to Licence conditions he will be required to comply fully with those conditions. On the basis of my own involvement with him I am satisfied that he would do so and would also be supported by his family in this.’ (report of J Kemmish, probation officer, 13/9/99).

‘Mr Craven’s plan is to live with his aunt and uncle. Whilst he would prefer to return to Newcastle, he understands the reasons he cannot. He has two offers of employment; one as a glazier, the other as a plumber. He (sic) head offices of both are in Newcastle which could present a problem, though not an intractable one.’ (Parole Board member’s interview report, 11/4/00).

Weighing the understandable interest of the victim’s family and Mr Craven’s apparent willingness to adhere to licence conditions restricting his movement in the area in which the family live, against the inconvenience which might be caused to Mr Craven, it did not appear disproportionate to recommend the inclusion in Mr Craven’s licence of a condition to that effect. The condition allows probation officers discretion in authorising his entry into Newcastle/North Tyneside should the need arise, so there is a degree of flexibility. In the circumstances, the Board is satisfied that its recommendation does not amount to a breach of article 8.”

“The panel accepted that the reasons for the family’s request was reasonable. The Parole Board has a duty to balance the information contained in all the material placed before it. In carrying out this task it is necessary to evaluate the strength and reasonableness of the recommendations contained in any of the reports by, for example, examining the basis on which the recommendations are made and whether the recommendations are founded on reliable evidence. The Panel also needs to be satisfied that the recommendations presented in the reports are balanced and proportionate. On this occasion the Panel considered that the anxieties of the victim’s family had been carefully examined and that, balanced with the totality of the evidence contained in the Parole Board dossier, they were such as to justify the recommendations made by Mrs Mantey. The Panel accordingly recommended that the suggested conditions be imposed.”

“I have been advised that any request by Mr Craven may make to go into the areas from which he is currently excluded for a day, an overnight stay or to work would be explored and considered in the light of the nature and circumstances of the individual request. Such requests would be expected to be exceptional rather than routine. Any consideration would need to take into account the deep distress the victim’s family continue to experience”

It appears that any decision by his supervising officer to give permission would be made only after consultation with both the Northumbria Police and the Northumbria probation service, i.e. different authorities from those primarily responsible for Mr Craven, who are the Durham Police and the Durham probation service. By letter dated 24 May 2001, permission was given for him to visit his parents in Heaton on a specific occasion.

“Zone A

To be the area around Annitsford, including Cramlingford. Your client would be excluded from this area except that he would pass through if necessary for the purposes of work using main roads and using private transport only. In addition to this, the coastal area lying to the east should be included, bordered to the north by the A1061, to the south by the River Tyne and to the west by the A19. The same terms to apply to this area.

Zone B

A separate zone allowing your client to work, using private transport, within the are which is essentially the Newcastle city area bordered by the ring road A1/A1056/A19 and the River Tyne. Within this area your client would also be able to visit his parents at Heaton, assuming he would be using private transport and main roads to reach Heaton.”

The statutory framework

“(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies.

(2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice.”

Section 28 of the Act does not apply to Mr Craven. Section 31, so far as is relevant, provides:

“(1) Where a life prisoner is released on licence, the licence shall, unless previously revoked under section 32(1) or (2) below, remain in force until his death.

(2) A life prisoner subject to licence shall comply with such conditions (which shall include on his release conditions as to his supervision by a probation officer) as may for the time being be specified in the licence; and the Secretary of State may make rules for regulating the supervision of any description of such persons.

(3) The Secretary of State shall not include on release, or subsequently insert a condition in the licence of a life prisoner, or vary or cancel any such condition, except –

(a) in the case of the inclusion of a condition in the licence of a life prisoner to whom section 28 above applies, in accordance with recommendations of the Parole Board: and

(b) in any other case, after consultation with the Board.

(4) For the purposes of subsection (3) above, the Secretary of State shall be treated as having consulted the Parole Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the implementation of proposals of that description generally or in that class of case.”

“ARTICLE 8: RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The issues

(i) What were the grounds for the recommendation of the Parole Board and the decision of the Secretary of State to impose the original and revised exclusion zones as conditions of Mr Craven’s licence.

(ii) Does Article 8 of the Convention have no application to Mr Craven, by reason of his conviction and his life sentence, which justify interference with his liberty and his personal rights?

(iii) Were the grounds for the imposition of the exclusion zone condition such as could lawfully be taken into account in making the recommendation and decision to include it in the licence? In relation to the European Convention on Human Rights, are the concerns and sensibilities of Miss Laing’s family within the “rights and freedoms of others” within Article 8.2 that may justify an infringement of the rights conferred by Article 8.1?

(iv) If the exclusion zone condition was of a kind that the Home Secretary might lawfully include in the licence:

(a) did the Claimant agree to its imposition?

(b) was the inclusion of the original exclusion zone in Mr Craven’s licence reasonable and (if Article 8 applies) proportionate?

(c) Is the requirement of the modified exclusion zone reasonable and (if Article 8 applies) proportionate?

The grounds for the imposition of the condition

Does Article 8 apply?

Was the ground for imposition of the condition an admissible ground?

“The victim must be offered the opportunity of expressing any anxieties about the release of the victim, but it must be made clear that the victim is not being invited to comment on whether the prisoner should be released, but on the conditions under which the release might take place.”

Probation Circular 61/1995 on the Probation Service’s contact with victims is to similar effect: paragraph 10 states:

“Where release is to be considered, the victim should be offered the opportunity of expressing any anxieties he or she may have so that these may be included in the probation officer’s report and inform any recommendations regarding licence conditions. It needs to be made clear that the victim is not being invited to comment on whether a prisoner should be released but on the conditions under which release might take place. It should also be made clear that release plans are determined by many factors, and that it may not always be possible to act on the victim’s views.”

“(1)…

(2) In cases where this section applies, the local probation board for the area on which the offender is sentenced must take all reasonable steps to ascertain whether any appropriate person wishes to –

(a) make representations about whether the offender should be subject to any conditions or requirements on his release and, if so, what conditions or requirements, or

(b) receive information about any conditions or requirements to which the offender is to be subject on his release.

(3) In this section, “appropriate person”, in relation to an offence, means any person who appears to the local probation board in question to be, or to act for, the victim of the offence (“the victim”).

(4) Where it is ascertained that an appropriate person wishes to make representations in accordance with paragraph (a) of subsection (2), the relevant local probation board must forward those representations to the person responsible for determining the matter mentioned in that paragraph.”

The Claimant’s agreement to the condition

“I would say that my overall impression was that whilst the Claimant had all sympathy for the victim’s family and he recognised why they might be seeking the conditions, he did not welcome them, but would reluctantly accept them if it was the price he had to pay for his freedom.”

The original exclusion zone: reasonableness and proportionality

The revised exclusion zone: reasonableness and proportionality

(i) The lack of support for an exclusion zone from the professionals whose reports on him were taken into account by the Parole Board and the Home Secretary is not surprising: they did not have responsibility for considering the anxieties of the family of the victim, but principally for considering the risk Mr Craven presented of re-offending.

(ii) Mr Craven should now be able to visit his parents at their home.

(iii) The lack of any detail in his evidence referring to his close friends in Newcastle precludes any real weight being given to any inability to visit them without specific consent.

(iv) His inability to watch Newcastle Football Club when they play at home, while regrettable, in the scheme of things is of insufficient weight to lead me to reject the revised exclusion zone.

(v) The revised condition will affect Mr Craven’s ability to find work. However, he will be able to work in most of Newcastle, and to travel for work throughout the area. According to Mr Swaysland’s Lifer Interview Report dated 11 April 2000, at his interview Mr Craven said:

“Whilst he would prefer to return to Newcastle, he understands the reasons he cannot. He has two offers of employment: one as a glazier, the other as a plumber. (The) head offices of both firms are in Newcastle which could present a problem, though not an intractable one. As the glazing job offers more opportunities of work out of the City, that is the one he is likely to take. He has already discussed with his Outside Probation Officer how he will be able to meet reporting requirements if he is offered work on a contract away form the home area.”

This is a fair summary of the position.

MR JUSTICE STANLEY BURNTON: My judgment in this case has been distributed in draft. Copies are available of the approved version. It sets out my findings and decision.

MR BOWEN: My Lord, I did send some proposed corrections.

MR JUSTICE STANLEY BURNTON: They have not been received, I am afraid.

MR BOWEN: I am sorry, my Lord.

MR JUSTICE STANLEY BURNTON: Were there many?

MR BOWEN: Just a couple. Would it be more convenient if I was to send them afterwards to your Lordship's clerk.

MR JUSTICE STANLEY BURNTON: Are they minor or major?

MR BOWEN: There are a couple where the meaning of the paragraph --

MR JUSTICE STANLEY BURNTON: If you can send it through to my clerk I will ensure -- there is nothing of significance I take it?

MR SWIFT: My Lord, no, they are typographical.

MR JUSTICE STANLEY BURNTON: I would like to repeat that it is important that these corrections come before judgment is given, because I can see a number of people here who would like to take the judgment away and deal with it as an approved judgment. Do you have the corrections you want in writing?

MR BOWEN: I am afraid I used this fancy new fax machine on my computer which does not seem to have saved, so I do not have a copy.

MR JUSTICE STANLEY BURNTON: I was going to say if you do it immediately, I do not anticipate being in court very long, I could go away, correct it and get a corrected copy to all those who would like one before the close of the afternoon. I am sure they would like that. If you could get to me as soon as possible then I shall do that.

MR BOWEN: There is a matter in relation to costs. My learned friend has handed up a draft consent order.

MR JUSTICE STANLEY BURNTON: If that is agreed I will certainly make an order in those terms.

MR BOWEN: My Lord, there is one other matter with regard to leave to appeal. I do seek leave to appeal. I am not going to spend much time troubling your Lordship about it, it is more a matter of form because at the moment I do not actually have any instructions. We do need to seek the leave of the Court of Appeal and at least ask your Lordship to rule, firstly, as to whether there are grounds for appeal and, secondly, there is a compelling reason why the appeal should be hear. It is my submission that there are matters of great public interest that arise out of your Lordship's judgment, in particular in relation to the considerations that the Secretary of State could take into account in posing conditions upon the release of a mandatory lifer in the circumstances.

MR JUSTICE STANLEY BURNTON: My recollection is there was no issue about what he could take into account. You accepted he could take into account the position of the relatives of the victim.

MR BOWEN: My Lord, paragraph 24 of your Lordship's judgment, it was argued that the acceptability to the family of the claimant's release and return to Newcastle was not a matter to be taken into account, and your Lordship ruled against him on that matter. It is also relevant in relation to whether that amounts to the rights of others for the purposes of Article 8.2, so it is the same point, but firstly in a domestic context and, secondly, in the Convention context whether the distress to the family can be taken into account under Article 8.2 and, for the purposes of the discretion, domestic law. That is a point of interest and it is my submission, with respect, that that is sufficiently important for there to be a compelling reason for the Court of Appeal to consider it. I do not advance any submissions at this stage in relation to prospects of success that that might have.

MR SWIFT: My Lord, in my submission, the decision that you have reached is wholly consistent with the decision in the House of Lords in the Stafford case, although not directly on the point but clearly covered the general issue. My Lord, in those circumstances I would say that if leave to appeal is to be granted, it should be a matter that should be considered and dealt with by the Court of Appeal. I do not see any reason why my Lord should grant permission this afternoon.

MR JUSTICE STANLEY BURNTON: I think you should go to the Court of Appeal for your permission on the ground that my decision was consistent with previous authorities and was otherwise a matter that turned on the facts.

MR BOWEN: I am obliged.

MR JUSTICE STANLEY BURNTON: If you can get me those corrections, then I will make sure that, hopefully by about 3 o'clock, they are incorporated into the final judgment.

MR BOWEN: I will do that now.