O'Dowd (Boy George) v National Probation Service London

A prisoner released on licence remains subject to the punitive element of the sentence. Probation officers must therefore have regard to the proper punishment of offenders, as well as protection of the public, prevention of reoffending and rehabilitation. Public confidence and the reasonable expectations of the public may be relevant considerations, provided the decision-maker forms an independent judgment rather than simply reacting to press coverage. A chief officer may lawfully overrule a supervising officer within a hierarchical probation service. Restrictions on high-profile employment and temporary residence were not irrational. The claimant’s Article 8 rights were not engaged; alternatively, any interference was proportionate.

George O’Dowd, known as Boy George, was serving a sentence of imprisonment for false imprisonment and was released on licence. He sought approval under his licence conditions to participate in Celebrity Big Brother, involving temporary residence in the programme’s house and substantial media exposure and financial gain.

A supervising probation officer initially indicated that approval could be given subject to assurances from the programme’s producers. The chief officer subsequently refused approval, citing the victim’s interests, public confidence in the criminal justice system and the risk of adverse media coverage. The claimant sought judicial review on grounds including irrelevant considerations, irrationality, material error of fact, breach of Article 8 and improper overruling of the supervising officer.

1. Claim dismissed. Permission was granted, but the substantive claim for judicial review was dismissed.
2. Under Criminal Justice and Court Services Act 2000, s 2(2), the unqualified duty to have regard to the proper punishment of offenders applies when managing offenders released on licence. The licence forms part of the sentence imposed by the court. The rehabilitative and preventive purposes of licence conditions do not remove their punitive character, consistently with R (Uttley) v SSHD [2003] 1 WLR 2590.
3. Public confidence in the penal system and the expectations of right-thinking members of the public may be relevant to restrictions imposed during the licence period. The decision-maker must form an independent view of those expectations; they are not determined simply by newspaper editorials, articles or petitions. The chief officer was entitled to regard participation in a high-profile, controversial programme, promoting celebrity status and producing substantial financial gain, as inconsistent with a reasonable view of the proper punishment of an offender. The decision was not irrational under the approach stated in the CCSU case.
4. The potential effect on the victim was not confined to identification. The appearance itself could cause distress and revive the circumstances of the offence in the media. The disputed factual material was therefore immaterial.
5. Following R (Countryside Alliance and others) v A-G [2008] AC 719, the claimant’s loss of the proposed work and temporary residence did not engage Article 8. If Article 8 were engaged, the restriction was limited and proportionate to maintaining public confidence in the criminal justice system.
6. The licence did not create an irrevocable statutory office of supervising officer. The probation service was hierarchical, and the chief officer was entitled to overrule a subordinate officer’s approval.

This was a first-instance judicial review in the Administrative Court. The judgment records that Ouseley J ordered a rolled-up permission and substantive hearing on the papers.