England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		6th December 2013

LORD JUSTICE FULFORD:

This is the judgment of the court.

Introduction

1. On 2nd September 2005 the Bolton Crown Court imposed a sentence on the claimant of imprisonment for public protection ("IPP"), under section 225 of the Criminal Justice Act 2003 ("CJA"), with a tariff period of 9 months less the time he had spent on remand. The tariff expired 163 days after the sentence was imposed, on 12th January 2006.
2. Section 225 of the CJA as originally enacted was in the following terms:

Life sentence or imprisonment for public protection for serious offences

(1) This section applies where—

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2) If—

(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.

(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) as to the release of prisoners and duration of licences.

(5) […]

3. The claimant had committed a "serious offence" and was deemed by the sentencing judge to be at "significant risk" of causing "serious harm" to the public by the commission by him of a further "specified offence". The terms in quotations were all defined in the CJA. There are 153 specified offences.
4. He was 39 at the time the sentence of IPP was imposed, and the offence was that of burglary with intent to commit criminal damage (at the home of his former wife). The crime was committed when she and her young children were present, on the 13th April 2005. The claimant was said to have been in a drunken rage. He had eight previous convictions for offences which included assault occasioning actual bodily harm and criminal damage.
5. In due course, the claimant became a party to litigation in the courts of England and Wales and the European Court of Human Rights on the issue of whether he was lawfully detained during the period after he had completed the tariff period of his sentence but was unable to access courses that would reduce his suggested dangerousness. We consider those decisions, to the extent to which they are relevant to the present issue, later in this judgment.
6. The claimant was released on 25th July 2011 and he is currently subject to 12 licence conditions, some of which are standard in nature and others have been tailored to meet the risk he is said to pose. They are as follows:

(i) he shall place himself under the supervision of whichever supervising officer is nominated for this purpose, from time to time;

(ii) he shall, on release, report to the nominated supervising officer and keep in touch with that officer in accordance with the officer's instructions;

(iii) he shall, if the supervising officer so requires, receive visits from the officer wherever he is living;

(iv) he shall reside permanently at [a specified address] until his independent accommodation is acquired and approved by his supervising officer. Thereafter he shall live at an address only as directed by his supervising officer;

(v) he shall undertake work, including voluntary work, only where approved by his supervising officer and shall inform that officer of any change in or loss of such employment;

(vi) he shall not travel outside the United Kingdom without the prior permission of his supervising officer;

(vii) he shall be well behaved and not do anything which could undermine the purposes of supervision on licence which are to protect the public by ensuring that their safety would not be placed at risk and to secure his successful reintegration into the community;

(viii) he shall not make direct or indirect contact with the victim […];

(ix) he shall not enter the area of Bolton as defined on a map without the prior written consent of his supervising officer;

(x) he shall continue to address alcohol issues by attendance at a local relapse prevention group within his local community;

(xi) he shall seek immediate medical attention if he feels depressed;

(xii) he shall comply with the directions of his supervising officer to ensure that he participates in offending and relapse prevention work.

7. The licence period is indeterminate because he was found to be a dangerous offender under the provisions of section 225 and he is only entitled to apply to the Parole Board under section 31A of the Crime (Sentences) Act 1997 to have his licence cancelled once 10 years have elapsed following the date of his release. Thereafter, if his application to terminate the licence is refused, he may re-apply at yearly intervals.
8. Section 31A provides:

Imprisonment or detention for public protection: termination of licences

(1) This section applies to a prisoner who—

(a) is serving one or more preventive sentences, and

(b) is not serving any other life sentence.

(2) Where—

(a) the prisoner has been released on licence under this Chapter; and

(b) the qualifying period has expired,

the Secretary of State shall, if directed to do so by the Parole Board, order that the licence is to cease to have effect.

(3) Where—

(a) the prisoner has been released on licence under this Chapter;

(b) the qualifying period has expired; and

(c) if he has made a previous application under this subsection, a period of at least twelve months has expired since the disposal of that application,

the prisoner may make an application to the Parole Board under this subsection.

(4) Where an application is made under subsection (3) above, the Parole Board—

(a) shall, if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force, direct the Secretary of State to make an order that the licence is to cease to have effect;

(b) shall otherwise dismiss the application.

(5) In this section—

"preventive sentence" means a sentence of imprisonment [or detention in a young offender institution] [...]for public protection under section 225 of the Criminal Justice Act 2003 or a sentence of detention for public protection under section 226 of that Act [ (including such a sentence of imprisonment or detention passed as a result of section 219 or 221 of the Armed Forces Act 2006)];

"the qualifying period", in relation to a prisoner who has been released on licence, means the period of ten years beginning with the date of his release.

9. Additionally, the supervision element of the licence can be suspended following a minimum of 4 years trouble free existence in the community, if there is evidence of:

(i) a stable life-style, good integration and a balanced outlook on the part of the offender and an open relationship with his supervising officer;

(ii) a gradual reduction in the requirement for contact by him with the Probation area;

(iii) crises, if any, have been faced and dealt with sensibly, with proper involvement of the supervising officer; and

(iv) where appropriate, there has been an indication that the licensee would turn to the Probation area for assistance on a voluntary basis if necessary.

(paragraph 13.9.2 of Prison Service Order 4700)

This is, we note, a policy document rather than a statutory requirement. It is a direction to the probation officer who is supervising the individual concerned.

10. An application to suspend supervision in these circumstances will be considered by the Lifer Review and Recall Section ("LRRS") of the National Offender Management Service following receipt of a written report endorsed by the relevant assistant chief officer within the probation officer or someone of equivalent rank and it will include a complete risk assessment.
11. Where there are conditions on a licence and a recommendation has been made for variation by the probation officer, the case will be referred by the LRRS to the Parole Board. Thereafter, the Secretary of State, in accordance with recommendations from the Parole Board, may add, remove or vary the claimant's licence conditions at any stage during the licence period. In the claimant's case condition 9, which relates to the exclusion area, was recently amended, following a request by the claimant, in order to enable him to visit his mother. The probation officer is entitled to act on his own initiative, regardless of whether there has been a request from the offender.
12. As to the licence conditions generally, the standard conditions and the tailored conditions are only to be placed on the licence when they are necessary for the management of the offender in the community and they are proportionate to the objectives that have been set for the supervision period. It is possible, therefore, for an individual released on an IPP licence to have only one condition: the requirement of good behaviour.
13. By contrast with this regime, it is to be noted that if the claimant had been given an extended sentence, the maximum extension period for a violent offender is 5 years (section 226A CJA).
14. In these judicial review proceedings, permission having been granted by Turner J on 11th July 2013, the claimant challenges the indeterminate licence period which does not permit an application to cancel the licence within the first 10 years following his release. He does not challenge the regime under which the licence conditions can only be suspended after a minimum period of 4 years has elapsed.
15. As to remedy, the claimant seeks "a declaration that in preventing the claimant from applying for his IPP licence to be cancelled until after 10 years post release, section 31A of the Crime (Sentences) Act 1997 is incompatible with the claimant's Article 8 right." It is suggested that this restriction on his opportunity to apply for a cancellation of the licence is unnecessary, disproportionate and unjustified.

The Claimant's Submissions

16. Mr Armstrong, in his arguments in support of this application, emphasises the criticisms that were levelled at IPPs following their introduction in 2003. He notes the considerable amendments that were made to this type of indeterminate sentence in the Criminal Justice and Immigration Act 2008 when IPP sentences became discretionary and were restricted to those instances when the tariff period was 2 years or longer. Thereafter, this particular sentence was abolished by section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, when it was replaced with a new statutory life sentence "for a second listed offence" (section 224A CJA) and a new extended determinate sentence, which is only triggered if the appropriate custodial term would be at least 4 years. Furthermore, with this new sentence there is, it is suggested, a more favourable licence regime for offenders who are considerably more dangerous – given the crimes they have committed – than this claimant. Against that background, Mr Armstrong submits the Secretary of State needs to explain why a 10-year period is still necessary in this case. However, none of these changes had retrospective effect and the present claimant remains subject to the IPP licence regime that was an inevitable consequence of his sentence.
17. Mr Armstrong therefore submits that this legislative history supports his argument that individual consideration needs to be given to all aspects of the sentences imposed on the original offenders who received an IPP, given the "mistake", as he characterises it, made by Parliament when it first created this particular sentence.
18. It is contended that there is a strong basis for concluding, from a number of sources, and most particularly the short legislative history set out above that IPP sentences were passed on a significant number of defendants whom it had not been anticipated would be the subject of an indeterminate sentence, given the sentence was imposed relatively frequently to those who had only a very short tariff period. Accordingly, it is argued that "there must be people who would be able to show they no longer required a licence much sooner than (the end of the period of 10 years)."
19. Mr Armstrong suggests that this calls into question whether the decision as to the risk of harm to the public and dangerousness was properly made in many of the cases, bearing in mind the short tariff period that they received.
20. Against that background, Mr Armstrong contends that the jurisprudence of the European Court of Human Rights, as well as certain domestic decisions, are to the effect that blanket rules that deny consideration of individual circumstances are insupportable – as a general rule – and that the 10 year rule in this case offends against that approach. He relies on certain authorities in support of this contention: Bouchacourt v France [2009] ECHR 5335/06l; MM v UK [2012] EHCR 24029/87 at 198 and 207; and Regina (F (A Child)) v Secretary of State Home Department [2010] UKSC 17, [2011] 1 AC 331. Furthermore it is argued this requirement is not "necessary" for the purpose of Article 8 of the Convention, particularly given the circumstances of many of the prisoners who continue to be held under IPP sentences imposed in the period between 2005 and 2008.
21. Mr Armstrong focused, therefore, on a number of examples of the way in which the courts in Strasbourg and domestically have addressed the issue of lengthy periods of notification or registration in other crime-related contexts, or when the police are required to effect disclosure of information in the context of criminal records checks (e.g. T v Chief Constable of Manchester [2013] EWCA Civ 25, [2013] 1 WLR 2515; [2013] 1 Cr App R 27). It is accepted that a general rule may be an effective means of addressing the relevant issue but only so long as it is in accordance with the law and it is proportionate in its effect.
22. In Bouchacourt the European Court of Human Rights decided that there was no violation of Article 8 of the Convention when, following a conviction for rape, the defendants were notified they had been included in a national judicial database of sex offenders under the French Code of Criminal Procedure. The court rehearsed that the protection of personal data was a fundamental importance to a person's enjoyment and respect for his or her private and family life, particularly when it was subject to automatic processing and when such data was to be used by the police. The court accepted the prevention-related objectives of the database and noted that sexual offences were clearly a particularly reprehensible form of criminal activity from which children and other vulnerable people have the right to be protected effectively by the State. In all the circumstances the court concluded that, given the applicants had an effective possibility of submitting a request for the deletion of the data, with a right of appeal to a judge at any stage, the length of the data conservation – up to 30 years – was not disproportionate in relation to the aim pursued by the retention of the information. Therefore, this system struck a fair balance between the competing private and public interests at stake. Mr Armstrong emphasis the opportunity that defendants in that case had to apply for the deletion of the material at any stage and the right of appeal to a judge.
23. The Sexual Offences Act 2003 (Remedial) Order 2012 SI 2012/1883 regulates the requirement for sexual offender notification under the Sexual Offences Act 2003. The previous regime, which permitted an indefinite requirement for notification, was varied to allow for review after 15 years for adults and 8 years for children. Mr Armstrong observes that this Remedial Order is considered by the joint Committee on Human Rights (JCHR) to have cured the objection identified by the Supreme Court in Regina (F (A Child)) v Secretary of State Home Department, namely that the lifetime notification requirements are a disproportionate interference with Article 8 rights. This is because of the lack of individual review so as to allow for the situation in which an appropriate tribunal can reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted [57] and [58].
24. Therefore, notwithstanding the concerns that were expressed by the JCHR (11 October 2011) that a lengthy blanket minimum period for notification without the possibility of review may contravene Article 8, once certain amendments had been made which retained blanket ban for the periods of 15 and 8 years, the JCHR on 28th May 2012 approved the Order, in the sense that it concluded it was compatible with Article 8 (paragraph 2, page 8 under the heading "Conclusions and recommendations"). The JCHR was concerned at the lack of an earlier independent review of the continuation of the notification requirements (paragraph 13 of the report of 22 May 2012).
25. In Regina (Irfan) v Secretary of State Home Department [2012] EWCA Civ 1471; [2013] QB 885, the defendant pleaded guilty to an offence under section 5(1) of the Terrorism Act 2006 and was sentenced to 4 years' imprisonment. The offence was a "relevant offence" for the purposes of Part 4 of the Counter Terrorism Act 2008. On release he would become subject to the notification requirements set out in sections 47 to 52 of the 2006 Act. By section 53(1) for a person sentenced to a term of less than 5 years, the notification requirements lasted for 10 years following release on licence and during that period there was no right to apply for review of the need for those requirements. He sought a declaration that the imposition of the notification requirements was a disproportionate interference with his rights and the Part 4 of the 2008 Act was incompatible with Article 8, given the lack of any right of review.
26. It is of assistance to quote from the judgment of Maurice Kay LJ in that case, with whom the other members of the court agreed, as follows:

"13. The notification requirement in the present case is one of ten years from the date of release from imprisonment on licence. Is there anything disproportionate about such a requirement, even in the absence of a right to a review? In my judgment, there is not. I come to this conclusion for a number of reasons. First, like the Divisional Court, and as I have explained, I consider that terrorism offences fall into a special category. Secondly, the context is one in which it is appropriate to accord considerable weight to the view of Parliament. With respect, I think that this is the better way to express what Laws LJ described as 'the proper margin of discretion' or 'a broad margin of appreciation' but it is not necessary to engage in largely theoretical discourse. Thirdly, it is important to concentrate on the actual requirements. They do not remotely resemble the stringent conditions which attached to many control orders – for example, the sixteen hour curfew in AV. This appellant was released on licence on 4 February 2009. Since then, he has had to attend police stations in Birmingham once a year, each time for about thirty minutes. He has never informed the West Midlands Police that he intends to stay away from his home address or that he intends to travel abroad. The fact that he is subject to the statutory notification requirements is stored on the Police National Computer for the purpose of monitoring his compliance with the notification requirements but any information provided by him is not stored on the Police National Computer but is recorded and stored by the West Midlands Police. Access to it is limited to officers with appropriate security clearance and for purposes related to the notification requirements and the investigation of terrorism. Police officers in plain clothes have visited his home, initially once per month but now less frequently. They have stayed for about five minutes each time but have not entered the premises. Whilst, as is now conceded on behalf of the Secretary of State, all this amounts to an interference with the appellant's private life for the purposes of Article 8, it is essentially 'light-touch' when set against the legitimate aim of the prevention of terrorism, or (in Article 8 terms) 'the interests of national security' and 'the prevention of disorder or crime'. It is important to keep in mind the gravity of the disorder or crime which is being sought to be prevented.

14. Fourthly, even if it is the case that there may be exceptional cases of 'no significant future risk', their possible existence does not preclude a general requirement of relatively moderate interference in a context such as this. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312, Lord Bingham said (at paragraph 33):

'… legislation cannot be framed so as to address particular cases … A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.'

In my view, that resonates here. Given the relatively moderate intrusion caused by the interference with the private lives of convicted terrorists generally, and having particular regard to the interference with the private life of this appellant, I do not think that it can be said that either the scheme or its application to the appellant is disproportionate. I do not consider that the statute is incompatible with Article 8 or that the appellant is a victim within the meaning of section 6 of the Human Rights Act 1998."

27. Mr Armstrong stresses that this case is not to be equated with the situation confronting the court in Irfan and the need to supervise convicted terrorists.
28. In R (on the application of) Christopher Prothero v Secretary of State for the Home Department [2013] EWHC 2830 (Admin), the issue before the court was whether Regulation 12 of the Sexual Offences Act 2003 (Notification requirements) (England and Wales) 2012, which requires a person on the Sex Offenders Register to provide details of bank debit or credit card accounts held by him for a period of 15 years is incompatible with Article 8. This followed the change brought about by the Sexual Offences Act 2003 (Remedial) Order 2012, which, as discussed above, amended the 2003 Act to provide for a review of the indefinite notification requirements under the Act. The purpose of the police holding this material was to enable them to trace sexual offenders who had moved and failed to provide their new address in order, inter alia, to protect potential victims. The court held:

"21. It follows, therefore, in our view, that interference with Article 8, although material, is not nearly as significant as the interference already brought about by the other notification requirements. However, although the interference is material, it is of importance to note that access to bank accounts and debit and credit card transactions is not ordinarily permitted without the intervention of a court order.

[…]

26. We do not consider that the means employed are in any way inappropriate or disproportionate. They are plainly a practical and proportionate means of providing further protection to prevent other persons becoming potential victims of those on the Sexual Offenders Register. In reaching that judgment we have taken into account the fact that no power is given to access the accounts and that the information provided by an offender will be securely held.

27. The materials before the court and other matters well within the knowledge of any court provide sufficient evidence that the means are both appropriate and proportionate. Apart from the specific evidence from Scotland it is, in our view, self-evident that if such details are not provided by an offender, then the only course open to the police to identify the bank or institution at which the offender has a bank or credit card account would be to use their statutory powers to make applications in respect of the many banks and other institutions operating in England and Wales to see which bank or institution held an account in the name of the offender as that name was set out on the Sexual Offenders Register or otherwise known. The process of making such applications would be time consuming and expensive. Moreover, if the offender had changed the name under which he operated the account, the difficulties facing the police would be more considerable. By having details of the bank or other institution at which the offender held an account, the police would quickly be able to trace, by seeking appropriate orders. Any subsequent change of identity could be discovered by the well tested route of 'following the money'."

29. The claimant highlights that the conditions about which there was complaint were an addition to others already in existence.
30. Against that background Mr Armstrong contends that the IPP regime was applied to individuals who it had not been anticipated would be the subject of these sentences, and that it is a fair conclusion that some of those affected will pose a lesser long-term threat than the offenders at whom the legislation was intended to be directed. Accordingly, when considering the margin of appreciation in these circumstances a reduced degree of deference should be accorded to a decision that relates to legislation that was a "mistake". He emphasises the very wide range of offences, and therefore offenders, that were caught by these provisions. In those circumstances he seeks to distinguish the claimant and others similarly placed from terrorist offenders or sex offenders, for whom it is suggested wholly different considerations apply. He suggests that there was an error with the IPP legislation that now necessitates individual consideration of the licence conditions of those who were sentenced in this way. Mr Armstrong contends that it cannot be said that Parliament had reached an informed decision in 2005 in implementing section 225. He emphasises the lack of any research or other evidence as regards the individuals who are or who are likely to be the subject of these licence provisions and particularly as regards the danger they pose and the risk of recidivism. In this context he seeks to distinguish the present case from the position confronting the JCHR when it was considering the time limits for applying for review of the notification requirements under the Sexual Offences Act (Remedial) Order 2012 (see above), when some research was available.
31. As regards that latter argument, we note that the court in Regina (F (A Child)) v Secretary of State Home Department referred to academic evidence on recidivism rates. Lord Phillips PSC observed that the article Miss Jenny Cann published in 2004 in Legal and Clinical Psychology was to the effect that the research in this area had provided inconclusive results. It tended to indicate that sexual offending by offenders released from custody has a longer "life span" than general re-offending but the paper expressly recommended further research to look at the type of sexual offender most at risk of receiving a first reconviction for a sexual offence [54] and [55]. There was no evidence before the court that suggested it was either possible or impossible to identify from those convicted of serious offences, at any stage of their lives, the individuals who pose no significant risk of re-offending [56]. However, the Supreme Court nonetheless went on to conclude, as set out above, that it was obvious that some cases would properly be susceptible to review [57] and [58]. This reference to research by Lord Phillips in Regina (F (A Child)) v Secretary of State Home Department is of significance because although Mr Armstrong suggests the JCHR had academic research before it on recidivism rates, this was seemingly the same research referred to by Lord Phillips at [54] which, as we have just noted, was inconclusive (JCHR [39]).
32. Mr Armstrong argues that the suspension provisions of PSO 4700 (supra) do not meet the objections he has raised because for the arrangements to be lawful they would need to include the ability – at a sufficiently early stage – to cancel the licence entirely. Furthermore Mr Armstrong submits that even if the licence conditions are reduced to a sole requirement that the individual should be of good behaviour, this is still an interference with his Article 8 rights because of the risk of recall, which does not apply to others who may encounter the criminal justice process. It is emphasised that recall means he will have to go before the Parole Board.

The Respondent's Submissions

33. For the Secretary of State Miss Cumberland stresses the judge made a decision in the case of this claimant that an IPP was appropriate. She argues that the right after 10 years to apply to terminate the licence, coupled with the possibility of a suspending licence conditions after 4 years and the Secretary of State's ability to add or remove conditions on the recommendation of the Parole Board at any stage, mean that the licence regime is a justified and proportionate scheme that has sufficient flexibility.
34. Miss Cumberland suggests that the underlying complaint on this application is that Mr Lee remains the subject of a regime that has been repealed. In this regard she relies of the judgment of Moses LJ in R (on the application of) Geoffrey Massey v Secretary of State [2013] EWHC 1950 (Admin) when he observed:

"The claimant cannot complain because Parliament has now abolished IPPs and introduced a different type of sentence. The United Kingdom is not obliged, under the Convention, to re-open historical sentences and re-sentence merely because it has introduced a new sentencing regime." [25]

35. The court is reminded that section 225 of the 2003 Act and section 31A of the Crime (Sentences) Act 1997 are directed at protecting the public from dangerous offenders who committed violent or sexual crimes. The structure of the relevant provisions reflects a series of judgments by Parliament that have been made concerning the nature of the appropriate scheme in this context. Miss Gerrard, who filed a statement on behalf of the Secretary of State, summarised what is said to be the legitimate aim of these provisions as follows:

"IPP prisoners are serving indeterminate sentences on the basis that a reduction in their dangerousness could not be predicted by the courts at the point of sentencing. The indeterminate nature of the sentence prescribes that there is an ability for the offender to be on licence for the rest of their life. However, it was deemed that this may not be necessary in all cases, so at the outset provision was made so that the licence could be ended after 10 years of good behaviour. A reduction in the licence period is not available in any other sentence; not for life sentences, nor for extended sentences or ordinary determinate sentences. Where the sentence is for an offence of sex or violence the need to prevent any further serious harm becomes all the more important [...]"

36. It is said that this contention finds support in the speech of Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312, [2008] UKHL 15, cited in Irfan:

"33. The weight to be accorded to the judgment of Parliament depends on the circumstances and the subject matter. In the present context it should in my opinion be given great weight, for three main reasons. First, it is reasonable to expect that our democratically-elected politicians will be peculiarly sensitive to the measures necessary to safeguard the integrity of our democracy. It cannot be supposed that others, including judges, will be more so. Secondly, Parliament has resolved, uniquely since the 1998 Act came into force in October 2000, that the prohibition of political advertising on television and radio may possibly, although improbably, infringe article 10 but has nonetheless resolved to proceed under section 19(1)(b) of the Act. It has done so, while properly recognising the interpretative supremacy of the European Court, because of the importance which it attaches to maintenance of this prohibition. The judgment of Parliament on such an issue should not be lightly overridden. Thirdly, legislation cannot be framed so as to address particular cases. It must lay down general rules: James v United Kingdom (1986) 8 EHRR 123, para 68; Mellacher v Austria (1989) 12 EHRR 391, paras 52-53; R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800, para 29; Wilson v First County Trust (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 72-74; R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, paras 41, 91. A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial."

37. Therefore, a general measure may provide a more feasible means of achieving the legitimate aim than a case-by-case examination. When that case reached the European Court of Human Rights (Animal Defenders International v UK [2013] 57 EHRR 21) Sir Nicholas Bratza observed this may be the better approach ("the more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination") when individual consideration will lead to the risk of significant uncertainty, or litigation, or expense, or delay [108]. However, this latter approach is necessarily subject to the requirement of proportionality, as highlighted by Sir Nicholas Bratza and Lord Dyson in T v Chief Constable of Manchester (supra) [49] and [53].
38. We note, finally, that Mr Armstrong argues that the context is critical in this regard, and he suggests the court needs to look at the quality of the decision process that led to the "flawed" legislation in assessing whether a case-by-case examination is necessary (see Animal Defenders International v UK [2013] 57 EHRR 21).

Discussion

39. We accept unhesitatingly that these licence requirements constitute an interference with the right to respect for private life under Article 8(1); indeed, the respondent concedes that the application of these indeterminate licence requirements is "capable" of engaging these rights.
40. As the respondent has observed, whilst IPP sentences have been abolished they have not been found to be unlawful. The licence requirements are, in that sense, in accordance with the law.
41. In this connection it is to be noted that the claimant successfully applied to the European Court of Human Rights on the basis there had been violation of Article 5(1) of the Convention because he had been arbitrarily detained during a period between the expiry of his tariff and the point when steps had been taken to progress him through the prison system, with a view to providing access to appropriate rehabilitative courses. This related to a specific period of his detention (see James, Lee and Wells v United Kingdom [2012] ECHR 57877/09). It is right to emphasise that the rationale for these indeterminate sentences was that the reduction in the dangerousness of the offenders who, in due course, satisfied the criteria necessary for their release could not be predicted by the courts when passing sentence. It was said this had the important objective of protecting the public from potentially violent offenders.
42. In the House of Lords in James, Lee and Wells [2010] 1 AC 553, Lord Judge CJ stated as follows:

"102. It is plain therefore that there are two elements to IPP sentence. The first is the appropriate measure of punishment for the offender's crimes; the second is the protection of the public from the further and indefinite risk he represents. The punitive element of the sentence is not concerned with the potential dangerousness of the offender and the minimum term or tariff period should not be longer than commensurate with the seriousness of the crime: future risk is addressed by the protective element of the IPP. If there is no predictive risk that, in the sense specified in section 225(2(b) as explained in R v Lang [2006] 1 WLR 2509, the defendant will be dangerous at the end of the tariff period an IPP would be unjustified... " (see also chapter 5 of the White Paper "Justice for All" paragraphs 5.39 to paragraph 5.44).

43. We note that the claimant did not in the event seek to challenge before the Court of Appeal Criminal Division, as he was entitled to do, the finding of the judge that he posed a risk of serious harm to the public.
44. Notwithstanding Mr Armstrong's clear and able submissions, in our view, this is not a situation where there is a blanket rule applying to the claimant that is not susceptible to periodic review of the kind found to be objectionable in Regina (F (A Child)) v Secretary of State Home Department.
45. The following opportunities exist for securing variations to, and the cancellation of, the licence and its conditions:

(i) The claimant can apply via his probation officer, at any stage, for the Secretary of State, on the advice of the Parole Board, to consider removing or varying the licence conditions during the period of the licence. This has already happened in this case as set out above (see paragraph 13.9.1 of the Prison Service Order 4700). We note that the probation officer is entitled to take this step on its own initiative.

(ii) After 4 years following his release the claimant is able to apply for the supervision element of the licence to be suspended if certain conditions are met on an application to the Parole Board by a probation officer of appropriate seniority.

(iii) Following 10 years after his release he is able to apply for his licence to be terminated.

46. Furthermore, if within the scheme we have just described properly founded requests for variation or cancellation are refused arbitrarily or without justification, depending always on the precise circumstances, the claimant will have the opportunity of applying for judicial review of the relevant decision. In James, Lee and Wells the European Court of Human Rights rejected the claimant's Article 5(4) claim on the basis that he was able to challenge the Secretary of State's failure to adopt the necessary course of action as regards providing the right courses and progressing him through the prison system by way of judicial review (paragraphs 231 and 232). Notwithstanding the difficulties that may attend on bringing proceedings, the judicial review jurisdiction of this court nonetheless provides a real source of protection for the claimant, if an interference with his private life by the maintenance of licence conditions is no longer necessary. These are public officials whose duty to act compatibly with his Convention rights is open to supervision by this court.
47. It is of note that the present scheme for terminating the licence period after 10 years is not available for any other sentence – not for life sentences, nor for extended or ordinary determinate sentences. It is a not unimportant consideration that particular arrangements were made for an application to terminate the licence period for those who received IPPs.
48. Although the subject matter of the decisions in Prothero (a 15-year notification period in a sexual offences case) and Irfan (a 10-year notification period in a terrorist case) are self-evidently different to that of the present case, nonetheless they concern restrictions that were imposed for a fixed period of time while the individual was living in the community before they could be reviewed or removed.
49. As in those cases, the restrictions for the claimant are not excessively onerous and they do not involve the curtailment of his liberty or an invasion of his private life of a profound kind, such as the court has been called on to consider in other situations, for example with control orders. They are not particularly intrusive or exacting, notwithstanding the continued risk of recall.
50. Although those who are subject to later sentencing provisions may well have been treated in a more favourable way as regards the licence regime, in our judgment the present case involves the operation of a legitimate policy of protecting the public from those deemed to be dangerous. This is the case even if the legislation applied to defendants on a short tariff. We repeat that the claimant did not challenge the finding by the judge of the risk posed by him of serious harm to the public. Furthermore, given the wide range of offenders and offences caught by section 225, it may well be difficult for the Secretary of State to implement a blanket reduction in the 10-year period. For some offenders 10 years will provide a necessary, possibly a vital, protection for the public. In our judgment, the licence regime is proportional, in the sense the means employed to achieve the policy objective is appropriate, and it is not disproportionate in the sense of any adverse effects. It provides a period of time for an assessment to be made of the dangerousness of the claimant and he is able to apply for appropriate reductions and variations in the licence restrictions which – depending on the circumstances – could lead to the removal of many of the conditions, if not all of them (save for a requirement to be of good behaviour). In any event, the present conditions will not have – as far as one can predict – a significant adverse effect on his life and they have been applied for a sustainable reason. Furthermore, after 4 years he is able to apply for the suspension of the supervision.
51. For all of these reasons we refuse to grant the declaration sought by the claimant.
52. MR ARMSTRONG: My Lord, may I raise a number of matters? One is I think not strictly typographical errors as there is no transcript.
53. LORD JUSTICE FULFORD: If there are obvious howlers Mr Armstrong, I would be grateful for them.
54. MR ARMSTRONG: There is one in particular: I think you referred to the judgment of Judge LJ in Walker and you meant James Lee, Wells and the House of Lords. You quoted 102 as what you described as Walker I think.
55. LORD JUSTICE FULFORD: I do not know where I got ... you are quite right, it is James, Lee and Wells. Thank you very much indeed. I have simply taken it off the wrong headnote. That is very helpful. Thank you.
56. As my Lord, Blake J, has just pointed out if one looks below the names "James, Lee and Wells" immediately below there "on appeal from Regina v Walker" appears.
57. MR ARMSTRONG: That is because it is Walker and Jones below.
58. LORD JUSTICE FULFORD: That is helpful; we should get the right citations. Thank you very much.
59. MR ARMSTRONG: Yes. My solicitors asks if when the judgment is perfected that you leave out the reference to "Fleetwood". That is the full address, when you are producing the licence condition. I am not sure --
60. LORD JUSTICE FULFORD: "Fleetwood" out. I think I even put in post code in fact. Right. That was from the quotation from the 12 licensed conditions, was it not? Right okay. They will go.
61. MR ARMSTRONG: I seek, humbly, permission to appeal. I am not going to take you back to the submissions, but I seek on both grounds. Firstly, there is reasonable prospects of persuading the Court of Appeal that probation action is enough. I have reasonable prospects of persuading that it is not having regard to MM and the amendments were made in Glasgow. I also had specific point in relation to that, as to whether or not this is also a judgment correction point. In paragraph 13.9.2 which you rely on, I think at the invitation of my learned friend, it does refer to counsel and supervision element of life licences after a minimum of 4 years of trouble-free existence in the community. These arrangements also apply to offenders on IPP, so the suggestion that has made its way into the judgment that this only applies to IPPs and not other forms of life sentence is wrong, arguably wrong by reference to what the PSO says.
62. But my Lord, I also make the second submission in relation to wider public interest on this, on the basis of simply Members of Bar. It is a matter of some significance, there are (inaudible). So there are good reasons, in my submission, for permission to appeal in that sense too. Otherwise I seek a legal aid assessment.
63. LORD JUSTICE FULFORD: Just for the purposes of correcting the second to last point raised by Mr Armstrong when perfecting the judgment, the point in relation to 13.9.2 Miss Cumberland?
64. MISS CUMBERLAND: My Lord, my understanding is that this order deals with, broadly speaking, both IPP prisoners and life sentence prisoners but this provision your Lordship has referred to will only apply to the IPP prisoner. I hope I am correct in that.
65. LORD JUSTICE FULFORD: Take instructions (Pause).
66. MISS CUMBERLAND: My Lord, I am sorry, it is entirely my fault. The 10 year revocation only applies to IPP prisoners but 4 year suspension would apply to both life sentence prisoners and IPP prisoners. I am sorry.
67. LORD JUSTICE FULFORD: Thank you very much. Right. On the application for leave?
68. MISS CUMBERLAND: That application would be submitted as there would be no reasonable prospects of success for the reasons set out by your Lordship in the judgment and there is no application for costs. I do not know whether your Lordship wishes me to develop the point in relation to the application for leave to appeal but, in my submission, it is a clear case where the scheme imposes is necessary and proportionate and there would be no basis for any leave to appeal.
69. LORD JUSTICE FULFORD: Right. Thank you very much.
70. (Short Adjournment)
70. LORD JUSTICE FULFORD: Mr Armstrong, you are going to have to argue whether or not there is a wider public interest before the Court of Appeal. You have your legal aid taxation. Thank you very much. We are extremely grateful to both of you. They were very well presented arguments.