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

Licence conditions imposing exclusion zones engage the offender’s and the victim’s family’s rights under Article 8. The assessment is highly fact-sensitive. The decision-maker must determine whether the condition is necessary and proportionate, having regard to the risk of accidental contact, the potential emotional or psychological harm to the victim’s family, and less intrusive alternatives.

The court gives the Probation Service a considerable margin of appreciation because it is experienced and locally informed. Judicial review remains supervisory and intervention will ordinarily be exceptional. A prior absence of contact does not create a requirement for an earlier incident before an exclusion zone may be imposed.

The claimant challenged the Probation Service’s decision, overseen by the Secretary of State for Justice, to maintain an exclusion-zone condition imposed on his release from a 50-month sentence for causing death by dangerous driving.

The condition prevented him entering the area containing his family home, which was two roads from the home of the deceased’s sister. The claimant alleged disproportionate interference with Article 8 rights, failure to apply the applicable policy framework, procedural unfairness, breach of the duty of inquiry, and irrationality.

The central issues were whether the condition remained necessary and proportionate on the information available when the review decision was made, and whether the decision-making process was legally defective.

1. Claim dismissed. Permission was refused on all five grounds.
2. The exclusion condition engaged Article 8 rights, but the relevant balance included the rights and freedoms of the deceased’s family. The decision-maker was entitled to take account of the possibility of an accidental encounter and the resulting psychological harm. The close proximity of the two homes and the regular visits made by the deceased’s family meant that the risk was not negligible.
3. The court applied the five-stage approach in R (Razgar) v SSHD [2004] 2 AC 368. The interference was in accordance with law, pursued the protection of others, and was proportionate. The decision-maker was entitled to conclude that no less intrusive measure would sufficiently manage the risk.
4. The applicable Licence Conditions Policy Framework required additional conditions to be necessary and proportionate. The review decision addressed the relevant material, including the claimant’s position, the victim’s family’s concerns and the possibility of less intrusive alternatives. Grounds alleging failure to apply the Framework or procedural unfairness were therefore not arguable.
5. The Tameside duty required reasonable steps to obtain the information necessary for a rational decision. The decision-maker conducted extensive inquiries and consultation. Later information could support the condition but did not establish a breach. In any event, the court would have refused relief under sections 31(3C)(a) and 31(3D) of the Senior Courts Act 1981, since the outcome would highly likely have been substantially the same.
6. The decision was not irrational. It fell within the considerable margin of appreciation available to an experienced probation decision-maker.

First-instance judicial review claim. No prior appellate decision is stated in the judgment.