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

The Secretary of State retains responsibility under the Criminal Justice Act 2003 for setting and varying licence conditions for prisoners sentenced under section 227. The Parole Board’s role on release does not transfer that responsibility. A published policy describing an offender-manager-led process does not ordinarily prescribe a legally essential decision-making route. Procedural fairness generally requires a person foreseeably and significantly affected by a proposed statutory decision to have an opportunity to make representations, but the required process is context-sensitive and may be limited where the decision depends principally on risk assessment. A licence condition must be sufficiently certain when read with the licence as a whole. Proportionality review should respect expert risk assessments and should not treat decisions in other cases as determinative.

The claimant was serving an extended sentence imposed under section 227 of the Criminal Justice Act 2003. Following the Fishmongers’ Hall attack, the Secretary of State approved additional licence conditions restricting attendance at meetings or gatherings and entry into specified London areas, and activated an electronic-tag requirement. The claimant challenged the decision on grounds including statutory responsibility, departure from policy, procedural fairness, certainty and proportionality.

The Divisional Court considered whether the Secretary of State or the Parole Board had authority to vary the conditions, whether the claimant should have been invited to comment before the decision, and whether the conditions were legally certain and proportionate.

1. Statutory responsibility. Section 250 of the Criminal Justice Act 2003 assigns responsibility for non-standard licence conditions to the Secretary of State. Sections 250(5A) and (5B), which require a Parole Board direction for specified categories of prisoner, do not apply to a prisoner sentenced under section 227. Ordinary construction could not extend those provisions to section 227 prisoners. Section 3 of the Human Rights Act 1998 could not be used to erase the Secretary of State’s power, since that would contradict the grain and underlying thrust of the statutory scheme.
2. The difference between the section 226A and section 227 regimes did not engage article 5 or establish an “other status” for article 14 purposes. Even if discrimination were established, the distinction was justified as a permissible policy choice. The renewed application for permission on Ground 1 was refused.
3. Policy and decision-making. Policy document PI 09/2015 was a worked example of the Carltona principle. It did not make initiation by the claimant’s Offender Manager a condition of legal validity. The centrally coordinated response to the Fishmongers’ Hall attack, followed by consideration at a MAPPA meeting, was a permissible adaptation of the policy model. Ground 6 failed.
4. Fairness. The common-law duty of fairness required an opportunity to make representations before the proposed conditions were imposed. Because the decision depended on risk assessment, an elaborate process was unnecessary, but the claimant should have been consulted before the MAPPA meeting. Explaining conditions after the decision was made did not suffice. Ground 2 succeeded. Later consideration of representations at a MAPPA meeting overtook the procedural error, so declaratory relief, rather than quashing, was appropriate.
5. Certainty and proportionality. Condition xvi, prohibiting attendance at or organisation of meetings or gatherings of more than 50 people, was sufficiently certain when read with the licence as a whole. “Gathering” referred to organised forms of association and did not prohibit ordinary attendance at shops or busy streets. The condition was also proportionate: it allowed permission requests, required weekly review, and was supported by an expert MAPPA assessment. Decisions concerning other offenders did not determine the claimant’s case. All remaining grounds were refused.

The judgment itself describes no prior merits decision. Permission for judicial review was granted on Grounds 2, 3, 4 and 6 by Andrew Baker J; permission was refused on Grounds 1, 5 and 7. The Divisional Court refused renewed permission on Ground 1, dismissed the other grounds, and granted declaratory relief on Ground 2.