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

Interim relief in judicial review requires a real prospect that the claimant will obtain the substantive order sought. Only if that threshold is met does the court consider the balance of convenience.

A licence condition requiring residence at accommodation approved by a supervising officer may lawfully be applied to determine where a released prisoner should reside. Relevant risks to others may be taken into account. A temporary move affecting family relationships can engage Article 8, but limited interference may be justified by public protection, accommodation scarcity and competing claims. Where the legality threshold is not met, the balance of convenience does not arise.

The claimant, an offender released on licence, was required by condition 5 to reside at an address approved by his supervising officer. After completing a period at approved premises in Peterborough, he was directed to move to approved premises in North Wales because ordinary accommodation had not been secured.

He sought interim relief requiring him to remain in Peterborough pending an oral renewal of his application for permission to bring judicial review proceedings. An earlier interim order had lapsed after permission was refused on the papers. The proposed challenge alleged breach of Article 8 and the imposition of an unwritten residence condition.

1. Interim relief. The applicable approach was the ordinary test for interim relief at the outset of judicial review proceedings: whether there was a real prospect at trial that the claimant would obtain the substantive order sought and, if so, whether the balance of convenience favoured relief.
2. Article 8. The claimant’s Article 8 rights were engaged because relocation would adversely affect his relationship with his partner. However, the interference was limited. The proposed placement lasted about eight weeks, and contact could continue by telephone and video calls. The scarcity of approved-premises places and the stronger claims of others with family connections in the east of England were relevant. Wales was the claimant’s home area. Concerns about the welfare of the partner’s 16-year-old daughter were also properly capable of informing the decision.
3. Licence condition. The defendant had not imposed an unwritten condition preventing residence within a specified travelling time of the partner. The issue was the lawful exercise of the discretion under condition 5, which permitted residence only at premises approved by the supervising officer. The relevant safeguarding concerns could properly be considered when applying that condition.
4. The claimant could not identify available ordinary accommodation acceptable for approval. In those circumstances, there was no serious argument that the decision to move him temporarily to approved premises in North Wales was unlawful. The real-prospect threshold therefore failed, and the balance of convenience did not arise.
5. In any event, the balance would not have favoured relief. The relocation was temporary, and the claimant remained free to propose another address for consideration under condition 5. The application for interim relief failed on all bases.

The proceedings were filed on 11 April 2020. Lambert J made an interim order permitting the claimant to remain at the Peterborough approved premises. Thornton J later refused permission to apply for judicial review on the papers, after which the interim order lapsed. The present court refused renewed interim relief pending an oral renewal of the permission application.