Begley, R (On the Application Of) v Secretary of State for Justice

When setting release-on-licence conditions, the National Probation Service must consider the released prisoner’s family life and any relevant safeguarding information. Section 11 of the Children Act 2004 does not generally require a formal best-interests assessment, nor does it make the child’s interests paramount in this context. The prospect of resuming normal family life is a factor favouring release to the family home, subject to relevant risks and competing interests. The court applies an objective proportionality standard, but its role remains supervisory. The National Probation Service retains a considerable margin when assessing objective risks, subjective fear and distress, and the appropriate conditions.

The claimant, convicted of manslaughter and assault, challenged an exclusion zone imposed by the National Probation Service as a condition of his release on licence. The zone included Harrogate and therefore prevented him from living normally at the family home with his wife and young daughter, although contact remained possible by arrangement.

He argued that the National Probation Service should have obtained a formal assessment of his daughter’s best interests and that the exclusion zone was disproportionate. The central issues were whether such an assessment was required and whether the decision struck a lawful balance between the claimant’s family interests and the concerns of the victim’s family.

1. Formal assessment. The claim that a formal assessment by children’s services was mandatory was rejected. Section 11 of the Children Act 2004 requires relevant bodies to have regard to safeguarding and welfare, but does not make the child’s interests paramount or prescribe a particular decision-making method. The NPS properly contacted children’s services and established that there were no safeguarding concerns.
2. The NPS was entitled to treat the desirability of resumed normal family life as a factor favouring the claimant. A further assessment might have been required if, for example, the claimant’s absence affected his wife’s ability to care for the child. No such issue arose. Westwater v Secretary of State for Justice [2010] EWHC 2403 (Admin) was distinguishable because it concerned an unassessed risk posed by contact between an offender and a child.
3. Proportionality. The court accepted the objective proportionality approach stated in R (SB) v Governors of Denbigh High School [2007] 1 AC 100. The review was more intensive than Wednesbury review, but remained supervisory and was not a merits review. Under R (Carman) v Secretary of State for the Home Department [2004] EWHC 2400 (Admin), as emphasised in R (X) v Secretary of State for Justice [2017] EWCA Civ 155, the NPS was entrusted with the fine judgment required when setting licence conditions and enjoyed a considerable margin.
4. Subjective fear and distress within the victim’s family were legitimate considerations, even where the objective likelihood of an encounter was low. The exclusion zone addressed both risks and distress. The NPS had considered the claimant’s wife and daughter, but was entitled to find their interests outweighed by the victim’s family’s concerns for the remaining sentence, subject to review.
5. The decision was lawful and the application for judicial review was dismissed.