Carman, R (on the application of) v Secretary of State for the Home Department

A prisoner released on licence retains rights under article 8, but challenges to licence conditions are subject to intense respect for the expertise of prison and probation services in assessing risk. The court should intervene only in the most exceptional case. A risk assessment may rely on professional value judgment and intelligence beyond convictions, but it must not proceed on a materially mistaken or unfair account of the offender’s criminality. Where the written assessment is flawed and materially influences the risk classification, a resulting residence condition may be quashed and the risk reassessed. The court does not substitute its own assessment or direct the outcome of the reassessment.

The claimant, a convicted prisoner released on licence, challenged conditions requiring him initially to reside at Brigstocke Road Probation Hostel in Bristol and to comply with strict reporting requirements. He alleged irrationality, breach of article 8, failure to comply with the victim-consultation requirements of the Criminal Justice and Court Services Act 2000, and personal hostility by the probation officer.

His convictions had previously been reduced by the Court of Appeal Criminal Division from nine counts to three. The central issue was whether the probation service’s medium-to-high risk assessment, on which the hostel condition depended, was legally sustainable.

1. Disposition. The application succeeded on a limited ground. Condition (vii) of the licence, requiring residence at Brigstocke Road Hostel, was quashed. The claimant was to remain at his existing address pending reassessment. The court did not decide that hostel residence, or a medium-to-high risk classification, was unjustified in principle.
2. The purpose of licence conditions under section 37 of the Criminal Justice Act 1991 is protective rather than punitive. Conditions may be imposed to assess and monitor risk to the public. The probation and prison services possess the relevant expertise, and the court must show considerable reluctance to interfere with their judgments. The initial two-hour reporting requirement was rational once hostel residence was otherwise justified.
3. The claimant retained article 8 rights, but the authority of Craven (R on the application of) v Secretary of State for the Home Department and The Parole Board [2001] EWHC Admin 850 provided only limited assistance. It did not justify routine judicial review challenges to licence conditions.
4. Professional risk assessment is a value judgment. The court will not interfere with discrete assessments or scores absent legal error or countervailing expertise. However, the OASys document, read as a whole, conveyed guilt for substantially more than the three offences and three victims of which the claimant remained convicted. Post-decision explanations could not overcome that defect. The document therefore materially undermined the medium-to-high risk assessment and the residence condition founded upon it.
5. The victim-consultation challenge under section 69 of the Criminal Justice and Court Services Act 2000 fell away because the Victim Liaison Unit had attempted to contact the victims. The allegation of personal hostility by the probation officer was rejected.

Court of Appeal Criminal Division: on 27 January 2004, quashed six of the claimant’s nine convictions and upheld three, while increasing the total sentence to 18 months.

High Court (Administrative Court): condition (vii) of the licence was quashed, with reassessment required.