Gunn, R (on the application of) v Secretary State for Justice & Anor

Licence conditions imposed on a prisoner released into the community must pursue a lawful statutory purpose and comply with Article 8 of the European Convention on Human Rights. Risk assessment is for the expert multi-agency decision-maker, not the reviewing court. Relevant material may include confidential, hearsay or disputable intelligence, but it must be assessed carefully and fairly, with attention to counter-indicators and the offender’s response. The court reviews the decision-making process with context-sensitive intensity and does not substitute its own assessment of risk. Proportionality requires consideration of the importance of the objective, rational connection, necessity and fair balance. A geographically limited exclusion zone may be proportionate where it protects the public while preserving reasonable opportunities for rehabilitation and family contact.

The claimant, released on licence after serving a sentence for conspiracy to supply amphetamine, challenged stringent conditions requiring residence in Northampton, curfews, monitoring and exclusion from Nottingham. The conditions followed his classification under the MAPPA scheme as a Category 3, Level 3 risk case, based on his convictions, alleged organised-crime connections and police intelligence.

He argued that the risk assessment was unreliable, that the decision-making process was unfair, and that the conditions were irrational and disproportionate interference with his private and family life under Article 8. The court considered whether the risk classification was lawful and whether the licence conditions were proportionate.

1. Risk assessment. The challenge to the Category 3, Level 3 classification failed. Risk assessment is an evaluative judgment for the expert multi-agency panel. It is not a matter for the court to determine afresh. The material may include confidential, hearsay, fragile or disputable information, but the decision-maker must assess it carefully, consider counter-indicators and possible source unreliability, take account of the gist of the offender’s response, and place the information in its wider evidential context. The court reviews the fairness and rationality of the process with an intensity appropriate to the evidence, issues and context.
2. The panel was entitled to rely on the claimant’s convictions, intelligence concerning his alleged continuing influence within organised crime, and the assessed risks of violence, drug activity and harm to the community. The reduction in reported crime while he was imprisoned was not inconsistent with continuing criminal links. The Secretary of State was therefore entitled to adopt the panel’s advice and impose Category 3, Level 3 management.
3. Article 8 and proportionality. Licence restrictions affecting residence, travel and family contact interfere with private and family life and the home. Imprisonment does not, by itself, remove Article 8 protection. The conditions were prescribed under the statutory release regime, imposed through a lawful and rational process, and pursued the legitimate aim of public protection.
4. The proportionality assessment required consideration of the importance of the objective, rational connection, necessity and fair balance. Restricting access to Nottingham’s central and northern areas was rationally connected with public protection and rehabilitation because those areas were said to be associated with the claimant’s criminal influence. A whole-county ban was not required: the decision-maker had to balance public protection against the claimant’s family and private life. Residence in Northampton remained sufficiently close to permit family contact while reducing the risk of extended presence in the relevant areas.
5. The conditions were not disproportionate or unfair. They were capable of relaxation as the claimant demonstrated rehabilitation and lawful employment. The application for judicial review was dismissed.

Permission to apply for judicial review was granted by Mr Justice Plender on 13 March 2009. The High Court (Administrative Court) dismissed the claim after considering the legality of the risk classification and the proportionality of the licence conditions.