ZX, R (on the application of) v The Secretary of State for Justice

The National Probation Service may impose a licence condition restricting a released prisoner’s contact with family members where the condition is within its statutory powers and is necessary and proportionate. The Children Act 1989 care regime does not require prior local-authority or Family Court approval for such a condition.

Section 11 of the Children Act 2004 does not create new functions or displace the Service’s offender-management functions. It requires arrangements giving due regard to children’s welfare, in a manner appropriate to the functions being performed. The Service need not defer to a local authority’s assessment, but should work with it and assess welfare alongside public protection and prevention of reoffending.

A condition without a fixed end date is not necessarily indefinite where it is actively reviewed. Judicial review of professional risk assessments supporting licence conditions will ordinarily be exceptional.

The appellant had been convicted of terrorism-related offences and was released from a three-year custodial sentence on licence. He resumed extensive contact with his three children after release. Following multi-agency concerns that further assessment was needed of the risk of their exposure to extremist views, the National Probation Service added conditions preventing contact except as directed by it and Children’s Services. The restrictions were subsequently reviewed and progressively relaxed.

He sought judicial review, contending that the National Probation Service lacked power to separate him from his children without using the statutory child-protection process, had failed to comply with section 11 of the Children Act 2004, and had acted irrationally and disproportionately. Kerr J refused permission to apply for judicial review. The appeal concerned the lawfulness and proportionality of the licence conditions.

1. Appeal dismissed. The court unanimously held that Kerr J had been entitled to refuse permission to apply for judicial review.

2. The appellant remained subject to a custodial sentence. Release on licence was an alternative to continued imprisonment, not an entitlement to unrestricted liberty. Under the Criminal Justice Act 2003 and the Criminal Justice (Sentencing) (Licence Conditions) Order 2015, the National Probation Service could impose prescribed conditions, including restrictions on contact. Its functions were distinct from a local authority’s functions in care proceedings under the Children Act 1989. Neither a local-authority decision nor Family Court approval was a precondition to the licence condition.

3. Section 11 of the Children Act 2004 regulated the manner in which the National Probation Service discharged its existing functions. It did not confer new functions or impose a uniform child-welfare decision-making process on the diverse bodies to which it applied. The Service had to make arrangements giving due regard to safeguarding and promoting children’s welfare, while retaining its statutory focus on offender supervision, public protection, prevention of reoffending and reintegration.

4. The Service had complied with that duty. It acted under relevant guidance, worked closely with Children’s Services, and continually assessed the children’s welfare. It was not obliged to defer to the local authority’s assessment that it had identified no concern. The licence decision was properly that of the Service, albeit reached through multi-agency engagement.

5. Article 8 necessity and proportionality remained relevant throughout the custodial term, consistently with Petherick [2013] 1 CAR(S) 598. On the facts, the temporary restriction was objectively justified by the rational assessment that further investigation was required into the risk of radicalisation. A condition was not unlawfully indefinite merely because it had no fixed end date where it was kept under active review and was later modified.

6. The court distinguished R (Westwater) v Secretary of State for Justice [2010] EWHC 2403 (Admin), which concerned different facts and a different prison-visits policy. It also endorsed, as general guidance, the observations in R (on the application of Carman) v Secretary of State for the Home Department [2004] EWHC 2400: licence conditions and risk assessments ordinarily involve professional judgment, and judicial intervention should be exceptional.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal: [2017] EWCA Civ 155.
• Administrative Court — Kerr J refused, after an oral hearing, permission to apply for judicial review on 16 December 2015.