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R (ON THE APPLICATION OF CRAVEN) v. THE PAROLE BOARD [2001] EWHC Admin 850 (5th October, 2001)

		[2001] EWHC Admin 850
		Case No: CO/1428/2000

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

5 october 2001

B e f o r e :

THE HONOURABLE MR JUSTICE STANLEY BURNTON
____________________

The Queen on the application of STEPHEN CRAVEN
Claimant

- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
First Defendant

- and -

THE PAROLE BOARD
Second Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Paul Bowen (instructed by Ben Hoare Bell for the Claimant)
Jonathan Swift (instructed by the Treasury Solicitor for the Defendants)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT

Crown Copyright ©
____________________

MR JUSTICE STANLEY BURNTON:

Introduction

On 14 March 1991 the Claimant was convicted of the murder of Penny Laing. He received a mandatory life sentence. By letter dated 6 October 2000, he was informed that the Home Secretary had decided, upon the recommendation of the Parole Board and after consultation with the judiciary, that, subject to his continued good conduct and to satisfactory arrangements being made for his resettlement, he would be released on life licence on 18 October 2000. The Parole Board’s recommendation, enclosed with that letter, was that he be released directly to the community with extra conditions not to contact the family of the victim or to enter the Newcastle/North Tyneside area without the prior approval of his supervising officer. For convenience I shall refer to the area of the prohibition as “the exclusion zone”.

The Claimant was duly released from prison on 18 October 2000. The two extra conditions were made conditions of his licence. He has never taken issue with the first of these conditions, but he complains that the second condition was not lawfully imposed by the Home Secretary, and that it constitutes a disproportionate and therefore unlawful interference with his right to respect for his private and family life within the meaning of Article 8 of the European Convention on Human Rights. By these proceedings he seeks declarations that the decision of the Home Secretary and the recommendation of the Parole Board were unlawful.

The exclusion zone under the original conditions of the Claimant’s licence covered the whole of the metropolitan areas of Newcastle and North Tyneside. Shortly before the hearing of this matter, by letter dated 10 July 2001, the Home Secretary proposed a substantial reduction in the exclusion zone and the alteration of the terms of the Claimant’s licence relating to it. I set out the new prohibition below. As a result of this proposal, the lawfulness of recommendation of the Parole Board and the decision of the Home Secretary relating to the original prohibited area became moot except in relation to the question of costs. However, the Claimant maintains that the new prohibition too is unlawful, and seeks a declaration to that effect.

The facts

The victim of the murder committed by the Claimant, Penny Laing, was aged 19 when she died. The murder was committed at a nightclub in Newcastle-upon-Tyne. She and Mr Craven were previously unknown to each other. It appears that the Claimant did or said something insulting to the victim. She slapped his face. He retaliated by pushing a glass into her neck, severing her jugular vein. She died within minutes. Mr Craven has always protested his innocence of the murder. That is irrelevant to the issues I have to decide: for the purposes of these proceedings he is a convicted murderer.

Both Miss Laing and Mr Craven were from the Newcastle area. Her parents lived and still live in Annitsford, a small community to the north of Newcastle. They and their son and Miss Laing’s boyfriend were devastated by her murder, and still grieve for their daughter. Pursuant to Probation Circular 61/1995 and 10/2000 and the Victim’s Charter, Mr and Mrs Laing were interviewed by a Victim Liaison Officer, Mrs Mantey. Her report, dated 2 September 1999, stated that they felt strongly that Mr Craven should not be permitted to return to the Newcastle/North Tyneside area where members of the family live and work. Under the heading “Specific Requests”, the report stated:

“Mr and Mrs Laing have asked that they be kept informed of all developments relating to Stephen Craven’s sentence and in particular wish to be informed of arrangements for release. In order to minimise any possibility of chance encounters, the family ask that Stephen Craven should not return to reside in the Newcastle or North Tyneside area.

If SC is released on life licence the family would ask for conditions to be incorporated in the licence:

(i) Excluding SC from the Newcastle/North Tyneside area.

(ii) Prohibiting SC from any form of contact with (the family and Penny Laing’s boyfriend).”

These requests were the origin of and the reason for the imposition of these conditions in Mr Craven’s licence.

Mr Laing’s health is poor. He had to take early retirement. He attends regular medical appointments at 3 different locations, including one in central Newcastle. Mrs Laing works; her work takes her around the whole of the area covered by the original exclusion zone. Their leisure activities take them throughout the area around Newcastle, both inside and outside the original exclusion zone. They are very anxious about the possibility of any chance encounter with Mr Craven. They feel they cannot predict how they or their children might react, but are certain any encounter would cause extreme distress. The condition imposing the exclusion zone is very important to them, enabling them to get on with their day-to-day lives with an assurance that there can be no possibility of a chance encounter.

Mr Craven grew up on Newcastle. His parents live in Heaton, an inner city suburb of Newcastle-upon-Tyne. Heaton is about 5 miles south of Annitsford. As a result of the imposition of the exclusion zone, Mr Craven had to go to live with his aunt and uncle in Newton Ancliffe in County Durham. Mr Craven’s family have supported him throughout his sentence. His father resigned from work due to poor health. He has had a heart by-pass operation and has a hiatus hernia. His medical condition makes travelling difficult. His mother is also in poor health, suffering from angina, high blood pressure and arthritis of the spine. According to a probation officer’s report of 13 September 1999, if Mr Craven was not allowed to return to his home area, a continued and indefinite strain would be placed on maintaining family contacts. The result of the original exclusion zone was that he could not see his parents at their home: they met in Gateshead, or at their daughter’s home in Darras Hall. His parents cannot travel long distances in their own car: their daughter takes them to her home to meet their son. In order to travel from Newton Aycliffe to Durras Hall he had to circumvent Newcastle, adding to the length and cost of the journey. His parents expected him to move back to them on his release, and find it difficult to have him living elsewhere.

In addition, Mr Craven had a number of close friends from Newcastle. His witness statement gives no details of them. It would be natural for him to want to visit them.

Before his imprisonment Mr Craven was a glazier. While in prison he qualified as a plumber. A Prison Officer’s report dated 15 December 1999 stated that he planned to seek employment with his cousin’s glazing business, as most work was carried out outside the Newcastle-upon-Tyne area, avoiding any infringement of the condition imposing the original exclusion zone. The prison probation officer’s report of 9 December 1999 stated that Mr Craven had had a good work record prior to his imprisonment and that she did not envisage him having difficulties finding employment on release. However, in his witness statement of 22 February 2001, Mr Craven stated that employment in Newton Aycliffe was difficult because of the recent closure of a large factory; that he had hoped to get work with his brother-in-law Mr Ballantyne, who had recently moved to Darras Hall on the outskirts of Newcastle, but the majority of his work was in the Newcastle area. He stated that the only other personal contact through whom he hoped to get employment was his cousin Mr Swann, whose business is based in Gosforth, a suburb of Newcastle, and he would have employment with him if he could work in the Newcastle/North Tyneside area. Mr Ballantyne and Mr Swann made witness statements confirming this evidence as to Mr Craven’s employment prospects.

Mr Craven also asserts that the effect of the exclusion zone is to prevent him watching Newcastle Football Club when they play at home.

All of the reports on Mr Craven speak highly of him. They do not support the imposition of an exclusion zone. A probation officer’s report dated 8 October 1999 stated that the writer felt that “the onus can be placed on Mr Craven to remove himself from” accidental contact with Miss Laing’s family. Mr Craven states that he understands the feelings of the Laing family, and would do everything in his power to avoid contact with them.

The Parole Board justified its recommendation of the original exclusion zone in a letter dated 28 November 2000 as follows:

“Included in the papers before the Board when it considered Mr Craven’s case, was a report from the Northumbria Probation Service Victim Liaison Unit. This provided the outcome of several interviews held with the parents of your client’s victim during which they expressed a desire, in the event that Mr Craven was released on licence, for a condition to be imposed preventing his exclusion (sic) from the Newcastle/North Tyneside area and from attempting to contact his family.

The Board noted that Mr Craven was to be released to an address in Newton Aycliffe, Co Durham. It further noted the following from the dossier:

‘The victim’s family live to the north of Newcastle upon Tyne approximately seven miles by road. Mr Craven has informed me that he would not intend to contact the family and he would be agreeable to a condition being included in his Resettlement Licence which prevents this.

Notwithstanding that Mr Craven continues to maintain his innocence he has always co-operated fully with the Probation Service. He is aware that if he is released subject to Licence conditions he will be required to comply fully with those conditions. On the basis of my own involvement with him I am satisfied that he would do so and would also be supported by his family in this.’ (report of J Kemmish, probation officer, 13/9/99).

‘Mr Craven’s plan is to live with his aunt and uncle. Whilst he would prefer to return to Newcastle, he understands the reasons he cannot. He has two offers of employment; one as a glazier, the other as a plumber. He (sic) head offices of both are in Newcastle which could present a problem, though not an intractable one.’ (Parole Board member’s interview report, 11/4/00).

Weighing the understandable interest of the victim’s family and Mr Craven’s apparent willingness to adhere to licence conditions restricting his movement in the area in which the family live, against the inconvenience which might be caused to Mr Craven, it did not appear disproportionate to recommend the inclusion in Mr Craven’s licence of a condition to that effect. The condition allows probation officers discretion in authorising his entry into Newcastle/North Tyneside should the need arise, so there is a degree of flexibility. In the circumstances, the Board is satisfied that its recommendation does not amount to a breach of article 8.”

The Chairperson of the Parole Board panel that considered Mr Craven’s case made a witness statement in which she summarised the reasons for their recommendation as follows:

“The panel accepted that the reasons for the family’s request was reasonable. The Parole Board has a duty to balance the information contained in all the material placed before it. In carrying out this task it is necessary to evaluate the strength and reasonableness of the recommendations contained in any of the reports by, for example, examining the basis on which the recommendations are made and whether the recommendations are founded on reliable evidence. The Panel also needs to be satisfied that the recommendations presented in the reports are balanced and proportionate. On this occasion the Panel considered that the anxieties of the victim’s family had been carefully examined and that, balanced with the totality of the evidence contained in the Parole Board dossier, they were such as to justify the recommendations made by Mrs Mantey. The Panel accordingly recommended that the suggested conditions be imposed.”

So far as the permission of Mr Craven’s supervising officer is concerned, a letter from the Mr Morley of the Lifer Unit of the Prison Service dated 19 January 2001 stated:

“I have been advised that any request by Mr Craven may make to go into the areas from which he is currently excluded for a day, an overnight stay or to work would be explored and considered in the light of the nature and circumstances of the individual request. Such requests would be expected to be exceptional rather than routine. Any consideration would need to take into account the deep distress the victim’s family continue to experience”

It appears that any decision by his supervising officer to give permission would be made only after consultation with both the Northumbria Police and the Northumbria probation service, i.e. different authorities from those primarily responsible for Mr Craven, who are the Durham Police and the Durham probation service. By letter dated 24 May 2001, permission was given for him to visit his parents in Heaton on a specific occasion.

The area covered by the revised exclusion zone and the provisions of the licence relating to it are as follows:

“Zone A

To be the area around Annitsford, including Cramlingford. Your client would be excluded from this area except that he would pass through if necessary for the purposes of work using main roads and using private transport only. In addition to this, the coastal area lying to the east should be included, bordered to the north by the A1061, to the south by the River Tyne and to the west by the A19. The same terms to apply to this area.

Zone B

A separate zone allowing your client to work, using private transport, within the are which is essentially the Newcastle city area bordered by the ring road A1/A1056/A19 and the River Tyne. Within this area your client would also be able to visit his parents at Heaton, assuming he would be using private transport and main roads to reach Heaton.”

The statutory framework

The Parole Board is the subject of Part II of the Criminal Justice Act 1991. It has the functions conferred by that Part of that Act in respect of long-term and short-term prisoners, and the functions conferred by Chapter II (i.e., sections 28 to 34) of Part II of the Crime (Sentences) Act 1997 in respect of life prisoners.

Section 29 of the Crime (Sentences) Act 1997 is as follows:

“(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies.

(2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice.”

Section 28 of the Act does not apply to Mr Craven. Section 31, so far as is relevant, provides:

“(1) Where a life prisoner is released on licence, the licence shall, unless previously revoked under section 32(1) or (2) below, remain in force until his death.

(2) A life prisoner subject to licence shall comply with such conditions (which shall include on his release conditions as to his supervision by a probation officer) as may for the time being be specified in the licence; and the Secretary of State may make rules for regulating the supervision of any description of such persons.

(3) The Secretary of State shall not include on release, or subsequently insert a condition in the licence of a life prisoner, or vary or cancel any such condition, except –

(a) in the case of the inclusion of a condition in the licence of a life prisoner to whom section 28 above applies, in accordance with recommendations of the Parole Board: and

(b) in any other case, after consultation with the Board.

(4) For the purposes of subsection (3) above, the Secretary of State shall be treated as having consulted the Parole Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the implementation of proposals of that description generally or in that class of case.”

As appears above, in this case the condition imposing the exclusion zone was included in the licence after consultation with the Board. The procedural requirements of section 31 were complied with.

In R v Home Secretary, ex p Stafford [1999] AC 38, the House of Lords considered the discretion of the Home Secretary under section 35(2) of the 1997 Act to release a mandatory life prisoner on licence. In a speech with which all of the other members of the panel agreed, Lord Steyn said, at 46:

“In deciding on issues of release the Home Secretary is ‘entitled to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function:’ Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, 559b, per Lord Mustill. This is reinforced by recent decisions of the House: see Reg. v. Secretary of State for the Home Department, Ex parte Venables [1998] AC 407, 489h-490c, 500h, 537b-538a, per Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Hope of Craighead; Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539, 563e-564a, 568f-g, 569h-570a, 598b-c, 602e-603h, per Lord Goff of Chieveley and Lord Hope of Craighead; and my speech, at p. 591f-g.”

Lord Steyn rejected the submission made on behalf of the appellant that the above statement did not represent the law.

The other provision to be considered is Article 8 of the European Convention on Human Rights:

“ARTICLE 8: RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It is, of course, the right to respect for Mr Craven’s private and family life that is potentially in play in this case.

The issues

The principal issues between the parties are the following:

(i) What were the grounds for the recommendation of the Parole Board and the decision of the Secretary of State to impose the original and revised exclusion zones as conditions of Mr Craven’s licence.

(ii) Does Article 8 of the Convention have no application to Mr Craven, by reason of his conviction and his life sentence, which justify interference with his liberty and his personal rights?

(iii) Were the grounds for the imposition of the exclusion zone condition such as could lawfully be taken into account in making the recommendation and decision to include it in the licence? In relation to the European Convention on Human Rights, are the concerns and sensibilities of Miss Laing’s family within the “rights and freedoms of others” within Article 8.2 that may justify an infringement of the rights conferred by Article 8.1?

(iv) If the exclusion zone condition was of a kind that the Home Secretary might lawfully include in the licence:

(a) did the Claimant agree to its imposition?

(b) was the inclusion of the original exclusion zone in Mr Craven’s licence reasonable and (if Article 8 applies) proportionate?

(c) Is the requirement of the modified exclusion zone reasonable and (if Article 8 applies) proportionate?

The grounds for the imposition of the condition

Mr Bowen submitted that the exclusion zone condition had been imposed on grounds of “public acceptability”, and that that consideration was not one that could properly be taken into consideration for the purpose of the exercise of the discretion under section 31 of the 1997 Act. I understand “public acceptability” to be the general public acceptability of the release of Mr Craven on licence. Whether that consideration was an admissible consideration was left open by the House of Lords in Stafford. I reject this submission on the facts. The imposition of this condition had nothing to do with public acceptability in this sense. The condition was imposed in order to minimise the distress caused to Miss Laing’s family by Mr Craven’s release, and to minimise the risk of distress being caused to them by a chance encounter with their daughter’s murderer.

The second, and alternative, submission on behalf of Mr Craven under this head was that the reason for the imposition of the condition was “acceptability to the victim’s family”. I was referred to the judgment of the Court of Appeal, given by Judge J, in R v Nunn [1996] 2 Cr App R (S) 136, in which he stated that “the opinions of the victim, or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence”. Mr Bowen submitted that the same must apply to decisions to release on licence. This must be right. However, this submission too fails on the facts. Concern for the distress the release of a prisoner serving a mandatory life sentence may cause to the family of the victim is not the same as concern as to whether they agree to his being released. As I have already stated, it was the former, not the latter, which was the basis for the imposition of the condition.

Does Article 8 apply?

The restriction on Mr Craven’s movements by virtue of either the original or the revised exclusion zone interferes with his personal and family life. Mr Swift submitted that nonetheless Article 8 did not apply to the imposition of the condition, on the ground that Mr Craven had been lawfully deprived of his liberty by the sentence of the Court consequent on his conviction for murder. My initial reaction to his submission was unsympathetic. A prisoner does not lose all his human rights. In any event, however, the point is covered by binding authority. It is also, to some extent, irrelevant.

The relevant European authorities were considered by the Court of Appeal in The Queen on the applications of P, Q and QB v Secretary of State for the Home Department [2001] EWCA Civ 1151, which concerned the policy of the Home Secretary in regard to the separation of children from their mothers in prison, and it is unnecessary for me to refer to them in this judgment. The law was summarised by the Lord Phillips MR in paragraph 78 of the judgment of the Court as follows:

“It is possible to draw some general conclusions from these authorities:

(i) The right to respect for family life is not a right

which a prisoner necessarily loses by reason of his/her

incarceration;

(ii) On the other hand, when a court considers whether

the state’s reasons for interfering with that right are

relevant and sufficient, it is entitled to take into account

a) The reasonable requirements of prison organisation and security; and

b) The desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination;

(iii) Whatever the justification for a general rule, ECHR law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued;

(iv) The more serious the intervention in any given case (and interventions cannot come very much more serious than the act of separating a mother from a very young child), the more compelling must be the justification.”

If Article 8 rights are not lost by reason of incarceration, they are not lost on release on licence. It is clear therefore that Mr Craven’s Article 8 rights are fully in play in this case.

I say that the question of Mr Craven’s Article 8 rights is to an extent irrelevant because his family’s own Article 8 rights are engaged. They have committed no offence; there is no justification for not fully respecting their Convention rights.

It follows, therefore, that the imposition of an exclusion zone was required to be justified under Article 8.2.

Was the ground for imposition of the condition an admissible ground?

Was distress to the victim’s family a consideration that could lawfully be taken into account by the Parole Board and by the Home Secretary? There are two linked aspects to their distress for present purposes. There is their knowledge that, following Mr Craven’s release, there is a risk of an accidental encounter with him; and there is the risk that there would be such an encounter, which might cause them considerable distress. In my judgment, these are matters that both the Parole Board and the Home Secretary are entitled to take into account in the exercise of their powers under the 1997 Act. They fall within the scope of the “broad considerations of a public character” that the Home Secretary is entitled to take into account.

The Victim’s Charter, issued by the Home Office, promises that victims’ families’ concerns will be taken into account when release is being considered for the purpose of the probation service making plans for supervising the offender. The Lifer Manual, issued in May 1999, states at paragraph 13.8.4:

“The victim must be offered the opportunity of expressing any anxieties about the release of the victim, but it must be made clear that the victim is not being invited to comment on whether the prisoner should be released, but on the conditions under which the release might take place.”

Probation Circular 61/1995 on the Probation Service’s contact with victims is to similar effect: paragraph 10 states:

“Where release is to be considered, the victim should be offered the opportunity of expressing any anxieties he or she may have so that these may be included in the probation officer’s report and inform any recommendations regarding licence conditions. It needs to be made clear that the victim is not being invited to comment on whether a prisoner should be released but on the conditions under which release might take place. It should also be made clear that release plans are determined by many factors, and that it may not always be possible to act on the victim’s views.”

Section 69 of the Criminal Justice and Court Services Act 2000, applies to cases such as the present, and now provides so far as is relevant;

“(1)…

(2) In cases where this section applies, the local probation board for the area on which the offender is sentenced must take all reasonable steps to ascertain whether any appropriate person wishes to –

(a) make representations about whether the offender should be subject to any conditions or requirements on his release and, if so, what conditions or requirements, or

(b) receive information about any conditions or requirements to which the offender is to be subject on his release.

(3) In this section, “appropriate person”, in relation to an offence, means any person who appears to the local probation board in question to be, or to act for, the victim of the offence (“the victim”).

(4) Where it is ascertained that an appropriate person wishes to make representations in accordance with paragraph (a) of subsection (2), the relevant local probation board must forward those representations to the person responsible for determining the matter mentioned in that paragraph.”

Mrs Mantey was carrying out the instructions of Circular 61/1995 when she saw the Laing’s and reported on their concerns. The promise in the Victim’s Charter, the instructions in that Circular, and the concerns for the families of victims of crime that those documents reflect would largely be set at nought if concerns such as those of the Laing family could not be taken into account in determining the conditions for release on licence. The Criminal Justice and Court Services Act 2000, which came into force in April 2001, requires such concerns to be taken into account. Apart from the provisions of Article 8, therefore, I have no doubt that the Parole Board and the Home Secretary were entitled to take into account the concerns of the family of the victim of the murder committed by Mr Craven.

It follows that, subject to the issues of rationality and proportionality, the interference with Mr Craven’s (and his family’s) Article 8 rights represented by the exclusion zone condition is “in accordance with the law” within the meaning of Article 8.2. The next question is whether it is “necessary in a democratic society … for the protection of the rights and freedoms of others”? (It is not suggested that the condition was imposed “for the prevention of disorder or crime” or on any of the other grounds permitted by Article 8.2.)

This question in turn raises the question whether “the rights and freedoms of others” are limited to Convention rights, or whether a broader range of rights and freedoms is covered by that expression. In The Queen on the applications of P, Q and QB v Secretary of State for the Home Department, the Court of Appeal cited with approval a passage from the judgment of Hale LJ in In re Mr W & B (Children) [2001] EWCA Civ 757, at paragraph 54, in which she stated that the rights of a child to be taken into account under Article 8.2 are not confined to his Convention rights, and include his interests. The same must apply in the present context. Article 8.2 could have been, but is not, expressly limited to Convention rights and liberties. The citizen whose Article 8 right is infringed has the protection of the requirements of legal process, necessity and proportionality, so that it should be unnecessary too closely to circumscribe the interests of others to be taken into account under Article 8.2. Too close a definition of those rights and liberties may be too difficult and too restrictive of the variety and development of human interests. In any event, however, the respect for private life protected by Article 8 should include a victim’s family’s right to go about their business with a minimum of anxiety, and without undue restriction on their own movements. As Sedley J said in R v Secretary of State ex p McQuillan [1995] All ER 400, 421, freedom of movement is a fundamental value of the common law, and, I would now add, of the Convention. But a restriction on movement resulting from fear and anxiety may be just as real as one resulting from a legally enforceable prohibition, and equally deserves to be taken into account.

For similar reasons, I consider that the imposition of an exclusion zone on the movements of a convicted murderer, in order to minimise the risk of accidental contact between him and the family of his victim, should be considered as capable of being necessary in a democratic society. A democratic society should be sensitive to the emotional harm caused to victims of crime, particularly of the most serious of crimes, to their anxieties and concerns, and to the risks of emotional or psychological harm in the event of an encounter between convicted murderer and the family of his victim.

The Claimant’s agreement to the condition

In his witness statement dated 10 May 2001, Mr David Swaysland, an independent member of the Parole Board, and the interviewing member for the Claimant’s application for release on life licence, stated;

“I would say that my overall impression was that whilst the Claimant had all sympathy for the victim’s family and he recognised why they might be seeking the conditions, he did not welcome them, but would reluctantly accept them if it was the price he had to pay for his freedom.”

I have no doubt that this is very fair summary. It is evident that the Claimant did not volunteer to accept the exclusion zone. It was matter he was compelled to accept, (subject to any legal challenge open to him) if he was to be released on licence. In these circumstances, his “acceptance” of the condition is a relevant consideration for the Parole Board and the Secretary of State, and indeed for the Court, but the weight to be attached to it is minimal in the extreme.

Accordingly, I hold that the concerns of the family of the victim of the murder committed by Mr Craven were matters that the Parole Board and the Home Secretary were entitled, and indeed bound, to take into account when deciding what conditions were to be included in the licence for Mr Craven’s release.

The original exclusion zone: reasonableness and proportionality

Notwithstanding the contents of the witness statement of Mr Watts, the senior manager in the Lifer Unit responsible for the advice received by the Home Secretary in relation to Mr Craven’s release on licence, I find that insufficient attention was given to the specification of the original exclusion zone or the effects of the imposition of from the points of view of both Mr Craven and the Laing family. For example, Mr and Mrs Laing live in a street that is partly in Northumberland, and to that extent therefore outside the exclusion zone. Mrs Laing works near their home in a village just outside the original exclusion zone, and Mr Laing regularly has to visit his General Practitioner whose surgery is also outside the original zone. It is, I think, clear that the definition of the zone as “Newcastle and North Tyneside” was taken from the Victim Liaison Report of 2 September 1999. I doubt whether the Laing family gave detailed thought to the definition of the area of the exclusion zone when they mentioned those areas: they would have expected the area to be subject to detailed definition by or on behalf of the Home Secretary. There is nothing to indicate that the effects of the original zone on Mr Craven and his family was sufficiently considered. I am clear that the definition of the original exclusion zone did not receive detailed or sufficient consideration from the point of view of the interests of the Laing family, and similarly the point of view of the interests of Mr Craven and his family. I would have held the condition imposing that zone to be unreasonable and disproportionate to the interests sought to be protected by it.

The revised exclusion zone: reasonableness and proportionality

In contrast, I find that the revised exclusion zone and the terms attached to it have been given careful and detailed consideration by the Home Secretary. This is, I think, clear from the terms of the letter of 10 July 2001 itself. The revised exclusion zone has been determined by reference to geographical rather than administrative boundaries. The revised condition permits Mr Craven to work within the area (“Zone B”) that is essentially the Newcastle city area. It permits him to visit his family in Heaton by private transport and using main roads. It permits him to pass through the remainder of the exclusion zone (“Zone A”) for the purposes of work, again using main roads and private transport. It covers the village in which the Laing family live and where they visit their GP and where Mrs Laing works.

My conclusions on the various matters put forward on behalf of Mr Craven are as follows:

(i) The lack of support for an exclusion zone from the professionals whose reports on him were taken into account by the Parole Board and the Home Secretary is not surprising: they did not have responsibility for considering the anxieties of the family of the victim, but principally for considering the risk Mr Craven presented of re-offending.

(ii) Mr Craven should now be able to visit his parents at their home.

(iii) The lack of any detail in his evidence referring to his close friends in Newcastle precludes any real weight being given to any inability to visit them without specific consent.

(iv) His inability to watch Newcastle Football Club when they play at home, while regrettable, in the scheme of things is of insufficient weight to lead me to reject the revised exclusion zone.

(v) The revised condition will affect Mr Craven’s ability to find work. However, he will be able to work in most of Newcastle, and to travel for work throughout the area. According to Mr Swaysland’s Lifer Interview Report dated 11 April 2000, at his interview Mr Craven said:

“Whilst he would prefer to return to Newcastle, he understands the reasons he cannot. He has two offers of employment: one as a glazier, the other as a plumber. (The) head offices of both firms are in Newcastle which could present a problem, though not an intractable one. As the glazing job offers more opportunities of work out of the City, that is the one he is likely to take. He has already discussed with his Outside Probation Officer how he will be able to meet reporting requirements if he is offered work on a contract away form the home area.”

This is a fair summary of the position.

So far as the right to a family life of Mr Craven’s family is concerned, one must bear in mind that family life is bound to be affected by the conviction of a son for murder. Their right to a family life was affected by the sentence of imprisonment passed on their son. The interference with their family life was justified under Article 8.2. Article 8.2 may justify further interference with it, after release from prison on licence of the son of the family.

As I have already indicated, in my judgment it is right that the Secretary of State should give weight to the concerns and anxieties of the family of Miss Laing. Clearly, the family are themselves victims of Mr Craven’s crime. The Victim Liaison Report dated 4 September 2000 shows that their concerns and anxieties are substantial. In dealing with human emotions quantification is impossible. It is necessary to make a broad assessment of the competing interests involved and their respective values. In my judgment, the Secretary of State has not given the victim’s family’s understandable concerns and anxieties undue weight.

I do not say that the revised zone is a perfect compromise of the interests of Mr Craven and his family and those of the family of his victim. Perfection is always difficult to achieve, and can be the enemy of the good. There remain risks of chance encounters in places outside the revised exclusion zone. However, in my judgment the revised terms of the licence and the revised exclusion zone reasonably accommodate the competing interests involved, and do so in a manner that, in relation to Mr Craven’s Convention rights, meets the requirements of proportionality. They are lawful and valid.

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MR JUSTICE STANLEY BURNTON: My judgment in this case has been distributed in draft. Copies are available of the approved version. It sets out my findings and decision.

MR BOWEN: My Lord, I did send some proposed corrections.

MR JUSTICE STANLEY BURNTON: They have not been received, I am afraid.

MR BOWEN: I am sorry, my Lord.

MR JUSTICE STANLEY BURNTON: Were there many?

MR BOWEN: Just a couple. Would it be more convenient if I was to send them afterwards to your Lordship's clerk.

MR JUSTICE STANLEY BURNTON: Are they minor or major?

MR BOWEN: There are a couple where the meaning of the paragraph --

MR JUSTICE STANLEY BURNTON: If you can send it through to my clerk I will ensure -- there is nothing of significance I take it?

MR SWIFT: My Lord, no, they are typographical.

MR JUSTICE STANLEY BURNTON: I would like to repeat that it is important that these corrections come before judgment is given, because I can see a number of people here who would like to take the judgment away and deal with it as an approved judgment. Do you have the corrections you want in writing?

MR BOWEN: I am afraid I used this fancy new fax machine on my computer which does not seem to have saved, so I do not have a copy.

MR JUSTICE STANLEY BURNTON: I was going to say if you do it immediately, I do not anticipate being in court very long, I could go away, correct it and get a corrected copy to all those who would like one before the close of the afternoon. I am sure they would like that. If you could get to me as soon as possible then I shall do that.

MR BOWEN: There is a matter in relation to costs. My learned friend has handed up a draft consent order.

MR JUSTICE STANLEY BURNTON: If that is agreed I will certainly make an order in those terms.

MR BOWEN: My Lord, there is one other matter with regard to leave to appeal. I do seek leave to appeal. I am not going to spend much time troubling your Lordship about it, it is more a matter of form because at the moment I do not actually have any instructions. We do need to seek the leave of the Court of Appeal and at least ask your Lordship to rule, firstly, as to whether there are grounds for appeal and, secondly, there is a compelling reason why the appeal should be hear. It is my submission that there are matters of great public interest that arise out of your Lordship's judgment, in particular in relation to the considerations that the Secretary of State could take into account in posing conditions upon the release of a mandatory lifer in the circumstances.

MR JUSTICE STANLEY BURNTON: My recollection is there was no issue about what he could take into account. You accepted he could take into account the position of the relatives of the victim.

MR BOWEN: My Lord, paragraph 24 of your Lordship's judgment, it was argued that the acceptability to the family of the claimant's release and return to Newcastle was not a matter to be taken into account, and your Lordship ruled against him on that matter. It is also relevant in relation to whether that amounts to the rights of others for the purposes of Article 8.2, so it is the same point, but firstly in a domestic context and, secondly, in the Convention context whether the distress to the family can be taken into account under Article 8.2 and, for the purposes of the discretion, domestic law. That is a point of interest and it is my submission, with respect, that that is sufficiently important for there to be a compelling reason for the Court of Appeal to consider it. I do not advance any submissions at this stage in relation to prospects of success that that might have.

MR SWIFT: My Lord, in my submission, the decision that you have reached is wholly consistent with the decision in the House of Lords in the Stafford case, although not directly on the point but clearly covered the general issue. My Lord, in those circumstances I would say that if leave to appeal is to be granted, it should be a matter that should be considered and dealt with by the Court of Appeal. I do not see any reason why my Lord should grant permission this afternoon.

MR JUSTICE STANLEY BURNTON: I think you should go to the Court of Appeal for your permission on the ground that my decision was consistent with previous authorities and was otherwise a matter that turned on the facts.

MR BOWEN: I am obliged.

MR JUSTICE STANLEY BURNTON: If you can get me those corrections, then I will make sure that, hopefully by about 3 o'clock, they are incorporated into the final judgment.

MR BOWEN: I will do that now.