2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The appellant, convicted under the Terrorism Act 2006, challenged the additional license conditions on his release, arguing procedural unfairness under Article 8 ECHR. The trial court dismissed his claims, focusing only on the broader policy issue in the appeal. The court upheld the policy’s legality, finding it not inherently unfair. Key authorities discussed include Refugee Legal Centre, Medical Justice, Munjaz, and Gul.
Judgment
Lord Justice Richards :
The appellant is a determinate sentence prisoner who is currently serving the non-custodial part of a seven year sentence imposed for an offence of preparing a terrorist act, contrary to section 5(1) of the Terrorism Act 2006. He was released on licence on 23 June 2011 after serving half his sentence. His licence included, in addition to the standard conditions, certain conditions relating to residence, reporting, curfew and electronic tagging. His judicial review challenge to the additional conditions fell away when the conditions in question were subsequently varied or removed, but he maintained a challenge under article 8 ECHR to the procedure by which they had been imposed, contending that he had not been afforded a proper opportunity to have his views taken into account at the material stage of the process. At a late stage in the court below he added to the procedural claim a contention that the policy governing the way in which additional licence conditions are decided on creates an unacceptable risk of illegality and is therefore unlawful. Both aspects of the procedural claim were dismissed by Cranston J. Permission to appeal was granted by Lewison LJ only in relation to the policy issue.
To a large extent the present appeal is academic. A challenge to the lawfulness of the policy will be of no direct assistance to the appellant, who does not complain about his remaining licence conditions and whose specific challenge under article 8 has failed, though he retains a weak personal interest in the outcome of the case in that he remains at risk of return to prison and of re-release subject to further conditions. Owing to the wider importance of the issue, however, and the fact that the case had come this far, we decided with a degree of reluctance to hear the appeal.
Ms Philippa Kaufmann QC, for the appellant, submits that there are three critical questions on the appeal: (1) what is the proper approach for determining whether a policy is unlawful by reason of the risk arising, in its application to individual cases, of unlawful decisions being taken? (2) did the judge apply the wrong test? and (3) whichever test applies, did the judge come to the wrong conclusion that the relevant policies were lawful, given the risk of unfairness arising from their application, i.e. that cases will be determined without a fair opportunity for informed representations?
Before considering those questions, it is necessary to set out