Lee v Secretary of State for Justice

An indeterminate licence imposed following an imprisonment for public protection sentence may engage Article 8, but a ten-year minimum period before an application to terminate the licence is not necessarily disproportionate. The question is whether the scheme, viewed as a whole, provides a proportionate means of protecting the public from offenders assessed as dangerous.

A scheme is not an impermissible blanket rule where it permits conditions to be varied or removed at any time, supervision to be suspended after four years subject to specified criteria, and the licence to be terminated after ten years. The availability of judicial review for arbitrary or unjustified refusals is also relevant. Parliament may adopt general rules where individual assessment would create uncertainty, expense or delay, provided the resulting interference remains proportionate.

The claimant received an imprisonment for public protection sentence under section 225 of the Criminal Justice Act 2003. His tariff expired in January 2006 and he was released on licence in July 2011. The licence was indeterminate, but section 31A of the Crime (Sentences) Act 1997 prevented an application for termination until ten years after release.

In judicial review proceedings, the claimant alleged that the ten-year restriction was an unnecessary and disproportionate interference with his Article 8 rights. He did not challenge the separate arrangements under which supervision could be suspended after four years. The central issue was whether the statutory licence regime was incompatible with Article 8 because it lacked earlier individual review of the need for the licence.

1. The court refused the declaration sought and dismissed the claim. The licence requirements constituted an interference with the claimant’s Article 8(1) rights, but the regime was in accordance with law. The claimant’s sentence had not been found unlawful.

2. The court distinguished the objection identified in Regina (F (A Child)) v Secretary of State for the Home Department. This was not an absolute blanket rule incapable of periodic or individual review. The claimant could seek variation or removal of conditions through his probation officer at any stage; supervision could be suspended after four years if the specified criteria were met; and the licence could be terminated after ten years.

3. The possibility of judicial review supplied an additional safeguard. An arbitrary or unjustified refusal to vary or cancel the licence could be challenged where the maintenance of the conditions was no longer necessary and public officials were required to act compatibly with Convention rights.

4. The court applied the proportionality principles reflected in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport, Animal Defenders International v United Kingdom, T v Chief Constable of Manchester, Regina (Irfan) v Secretary of State for the Home Department and R (on the application of) Christopher Prothero v Secretary of State for the Home Department. Parliament was entitled to use a general measure where it provided a feasible means of protecting the public, subject to proportionality.

   The conditions were not excessively onerous or comparable to profound restrictions such as control orders. The ten-year termination period gave time for dangerousness to be assessed, while the available mechanisms allowed many or all conditions to be removed, subject to the circumstances. The regime therefore pursued a legitimate public-protection aim by appropriate means and its adverse effects were not disproportionate.

5. The fact that later sentencing legislation provided more favourable licence arrangements did not require the historical IPP regime to be reopened. The claimant had not challenged the original finding that he posed a significant risk of serious harm.

Permission to bring judicial review proceedings was granted by Turner J on 11 July 2013. The Divisional Court then refused the declaration sought.