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

Licence conditions imposed on a released prisoner may restrict Convention rights where authorised by the statutory scheme and justified by the purposes of supervision. The Secretary of State may prescribe the kinds of additional conditions permitted by section 250 of the Criminal Justice Act 2003, including conditions engaging privacy, expression and assembly rights.

Conditions must be interpreted purposively, in context and in accordance with necessity and proportionality. A condition is not unlawful merely because its language could have a wider literal meaning. The court should recognise the expertise of the prison and probation services and intervene where there is a clear error of law or other public law flaw. Procedural fairness requires a sufficient opportunity to participate in the decision-making process, not necessarily a separate formal hearing.

The claimant, who had been convicted of disseminating terrorist publications, challenged two conditions of his release licence. One restricted attendance at or organisation of meetings and gatherings without prior approval. The other restricted possession of material promoting hatred or violence, or containing information about military or paramilitary matters, without prior approval.

He argued that the conditions lacked statutory authority, were uncertain, disproportionately interfered with Articles 8, 10 and 11 of the ECHR, and had been imposed without procedural fairness. The Administrative Court considered the statutory and policy framework, the claimant’s opportunities to make representations before release, and the operation of the conditions in practice.

1. Claim dismissed. The process was not procedurally unfair. The claimant had attended three pre-release meetings at which the licence conditions were discussed and had the opportunity to make representations. Fairness required an opportunity to participate in the process, which had been provided; it did not require a further formal invitation to comment on every condition.
2. Section 250 of the Criminal Justice Act 2003, read with the purposes in section 250(8), authorised the Secretary of State to prescribe the kinds of additional conditions specified in article 3 of the Criminal Justice (Sentencing) (Licence Conditions) Order 2005. Those conditions could potentially engage Convention rights. The challenged conditions were therefore not ultra vires.
3. The statutory provisions and Order were sufficiently clear for the common-law principle of certainty and the ECHR requirement that restrictions be prescribed by law. The relevant test was whether the person affected could reasonably foresee the consequences of conduct, with appropriate advice if necessary. The Policy supplied additional guidance on necessity, proportionality and risk.
4. The court assumed, without deciding, that Articles 8, 10 and 11 were engaged. The conditions were justified and proportionate when interpreted purposively. The material restriction applied only to material which could reasonably be used to promote violence. The meeting condition could properly require prior approval for events such as sporting fixtures, given the claimant’s offending and the risks associated with large gatherings.
5. The court recognised the particular importance of unimpeded communication with lawyers. Reading condition 5(x) in the light of its statutory purpose, it did not restrict access to legal advice or subject communication with lawyers to prior approval. The court left open whether genuinely chance, unplanned meetings were within the condition.
6. In judicial review proceedings, claimants must make full and frank disclosure and reconsider the merits after receiving the defendant’s evidence. Failure to comply may affect relief and costs, including, where appropriate, a wasted-costs order.