Bentham, R (on the application of) v HMP Usk and Prescoed & Anor

An exclusion zone imposed as a licence condition engages Article 8 where it prevents a prisoner from living in his family home. Victim impact and broader public considerations may legitimately be taken into account, even where the risk of a chance encounter is minimal. The restriction must nevertheless be necessary and proportionate. A town-centre exclusion, combined with controlled vehicular access to the family home, may sufficiently prevent encounters. Preventing residence at the home is disproportionate unless the evidence shows unequivocally that the prisoner cannot provide appropriate family care without living there.

The claimant had been released on licence after serving a sentence for causing death by dangerous driving. His licence imposed an exclusion zone covering Monmouth, including his family home, where his mother and elderly grandparents lived. The condition was intended to prevent distress to the victim’s family and the possibility of contact.

He sought judicial review, contending that the condition unlawfully interfered with his Article 8 rights and was irrational. The defendant accepted that Article 8 was engaged but relied on the victim family’s views, public protection and the continuing punitive context of the sentence. The central issue was whether the exclusion zone was necessary and proportionate, particularly insofar as it prevented residence at the family home.

1. Article 8 and applicable approach. The exclusion zone interfered with the claimant’s private and family life. The court applied the five-stage approach in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. The power to impose the condition arose under section 250 of the Criminal Justice Act 2003 and article 3(2)(g) of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005.
2. Victim impact and public considerations. Following the approach in R (Craven) v Secretary of State for the Home Department [2001] EWHC Admin 850, distress to the victim’s family and the risk of an unwanted encounter were legitimate matters. Broader considerations of a public character could also be considered. The court further accepted, with reference to R (George O’Dowd) v National Probation Service London [2009] EWHC 3415 (Admin), that public perception might be relevant to proportionality.
3. Town-centre exclusion. The restriction preventing the claimant from entering Monmouth town centre and its immediate environs was justified. It remained a significant restriction on freedom of movement, but was necessary and proportionate in light of the victim family’s distress and the continuing sentence.
4. Residence at the family home. The blanket prohibition on visiting the home was not necessary to prevent a chance encounter. Controlled travel by car and exclusion from the town centre removed any realistic prospect of such an encounter. Nevertheless, the victim family’s substantial distress and strongly held views remained relevant. Preventing residence was not disproportionate unless it was demonstrated unequivocally that the claimant could not provide appropriate and substantial care without living there.
5. The defendant and first interested party were required to obtain up-to-date information about the family’s care needs and reconsider the precise relaxation of the condition with an open mind if circumstances changed. The irrationality and material-considerations grounds added nothing to the Article 8 conclusion.

First-instance judicial review in the Administrative Court. No lower-court decision is stated.