England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (CARDIFF)

		Cardiff Civil and Family Justice Centre, 2 Park Street, Cardiff, CF10 1ET (handed down at the RCJ)
		22/02/2016

Mr Justice Dove :

Introduction

1. The claimant's claim for judicial review is based upon his contention that the conditions imposed upon his licence on release from prison as part of an extended sentence of four years imprisonment together with four years extended licence period are unlawful. The history of his case is as follows.
2. In 1975 the claimant was married for a brief period. After three months of marriage he was ejected from the matrimonial home. He discovered that his then wife's former boyfriend had moved back in with her. Shortly after this he was arrested and charged with indecent assault upon his then wife's 12-year-old daughter. The nature of the allegation was that he had touched her breast over her clothing. During the investigation by the police he signed a confession which had been written for him. He states in his evidence that he did so as he was threatened by his then wife's former boyfriend (with whom she was then living) with assault and also the threat that he would be forced to pay her maintenance. He was also advised that by pleading guilty he would create grounds for divorce so that he would not have to wait five years to be able to divorce her.
3. In my view, it is fair to observe that his attitude to his responsibility for this offence is to some extent ambivalent. In his submissions at the hearing the claimant stated that he was unable to recall deliberately touching his stepdaughter in the manner alleged. He pointed out that it was a very stressful and confusing period of his life. By contrast, in a letter he wrote on 18^th October 2008 he stated as follows:

"My 1976 conviction was for indecent assault on a 13yo step daughter. This occurred in a marriage where I was out of my depth. My wife was much older than me (by 13 years) and I became a stepfather to 5 children. It only lasted a few months before we separated. Everything became very confused, the daughter had a crush and I acted inappropriately. I touched her on the breast over the clothes and immediately stopped, however the damage had been done and the incident was referred to the police by my wife. I pleaded guilty at Magistrates Court and was given a 12m probation order that was discharged early. This offence has periodically caused me heartache and problems over the years. Despite it occurring over 32 years ago it continues to haunt me."

4. The claimant met his present wife in late 1976 and they married on 19^th August 1978. They have two daughters. Sadly, in around 2001, one of their daughters became addicted to heroin and on 21^st January 2002 the claimant and his wife obtained a residence order in relation to his grandson for whom they assumed parental responsibility at that time. The claimant, his wife and daughters and his grandson lived together at their family home without incident until summer 2008.
5. On 3^rd August 2008 the claimant was arrested on suspicion of having made indecent images of children. A number of separate hard drives were found at the claimant's home and searched. A detailed examination of one of the hard drives yielded 94,424 undeleted indecent images of children, of which 1,627 were grade five (or the most serious kind of images) in terms of their content. At the time of their investigation the claimant had advised the police that he had been accessing such images for the previous ten years prior to his arrest. In his submissions the claimant said that this suggestion might not have been precisely accurate, but it was an estimate of the longest period of time over which he could have been accessing this material. The investigations demonstrated that his main method of obtaining the images was downloading them by peer-to-peer system transfer in which the contents of hard drives were exchanged. The claimant was convicted on 27^th November 2008 of 17 counts of making indecent images of children and five counts of possession of indecent images of children. He was sentenced to a term of imprisonment.
6. The claimant was released from this term of imprisonment on 20^th March 2009. At a routine inspection of his bed and breakfast accommodation on 1^st May 2009 he was found to have a USB memory stick on which there were indecent images of children. The claimant told the police that he had downloaded these images by using his daughter's computer, which was situated in the family home, when he had been visiting there. As a result of this discovery he was recalled to prison and charged and convicted of five accounts of making indecent images of children. As a result of these convictions he was sentenced on 24^th April 2010 to four years imprisonment with an extended licence period of four years at the Crown Court at Swansea.
7. Prior to sentence being passed in 2009, in a report commissioned from the Caswell Clinic, the claimant was said to be not suffering from mental illness but rather that he had a disorder, namely paedophilia, together with reactive depression caused by stress. During the course of his submissions the claimant observed that this assessment was simply a clinical assessment and was not a specific evaluation of the prospects of him undertaking further sexual offences. In relation to the offence of which he was convicted the claimant remains adamant that he is not guilty. He contends that the images which were on the USB memory stick were not of children but of older individuals. He has an application pending with the Criminal Cases Review Board seeking to obtain their support in an application to the Court of Appeal to appeal against this conviction. Notwithstanding this application, as matters stand the conviction and sentence are matters of record and must form a part of the factual basis for the purposes of this judicial review.
8. On 8^th June 2012 the claimant was released on licence. The conditions placed on the licence have been through several iterations. The licence has, indeed, changed since these proceedings were issued on 1^st July 2015. The present form of the licence is one which was issued and dated 30^th July 2015. Notwithstanding this reissuing of the licence the conditions which are controversial for the purposes of these proceedings remain in force. Insofar as there were conditions which were controversial which have now been removed from the licence they are, in my view, only of peripheral relevance to the merits of the claimant's case. So far as material, the conditions provide as follows and prevent the following activities:

"vii. To own or use (directly or indirectly) a computer, data storage device or other electronic device (including an internet-enabled mobile telephone) for internet access, instant messaging, or other computer and online usage, only as allowed by your supervising officer. You must not delete the usage history of any such devices that you have used, and you must allow your supervising officer and/or the police to have access to them, which may include removing them in order to conduct technical checks to establish usage;

viii. To make any computer, data storage device or other electronic device (including an internet-enabled mobile telephone) which may be used for internet access, instant messaging, or other computer and online usage, available for the installation of monitoring software by your supervising officer and/or the police, and not to disrupt or disable the monitoring software once installed;

ix. Not to own or possess more than one mobile phone or SIM card without the prior approval of your supervising officer and to provide your supervising officer with details of that mobile telephone, including the IMEI number and the SIM card that you possess;

x. To make any device that you own or possess that is capable of making or storing digital images (including a digital camera and a mobile phone with a camera function) available for inspection on request by your supervising officer and/or a police officer;

xi. Not to own or use a non-digital camera without the prior approval of your supervising officer;

xii. Not to own or use a standalone digital camera without the prior approval of your supervising officer;

xiii. Not to reside (not even to stay for one night) in the same household as any child under the age of 16 without the prior approval of your supervising officer;

xiv. Not to seek to approach or communicate with [the claimant's grandchildren] without the prior approval of your supervising officer and / or Carmarthenshire Social Services;

xv. Not to have unsupervised contact with any children under the age of 16 without the prior approval of your supervising officer and / or Carmarthen Social Services Department except where the contact is inadvertent and not reasonably avoidable in the course of lawful daily life;

xvi. To comply with any requirements specified by your supervising officer for the purpose of ensuring that you address your sexual offending behaviour problems;

xvii. Not to enter the house at [redacted] and not to enter within any parts of the grounds thereof without the prior approval of your supervising officer."

9. At the start of the proceedings the defendant undertook to alter condition xiv of the licence so that it would provide as follows:

"xiv. Not to seek to approach or communicate with [the claimant's grandchildren] without the prior approval of your supervising officer or Carmarthenshire Social Services or the prior Order of the Family Court."

10. The purpose behind amending the condition and the objects which the amended is intended to achieve are addressed in greater detail below.
11. The effects of the offences, sentences and the impact of the licence conditions have been devastating from the claimant's perspective in terms of his quality of life. Prior to his arrest in 2008 he had been employed in a responsible position as a design engineer with a railway company for some time. As a result of his arrest and imprisonment the claimant lost this employment and has been unable to obtain employment since. His ability to obtain employment has, he contends, been significantly affected by his record of convictions and also by the restrictions placed upon him in terms of computer use when his principle skills are in the field of IT.
12. His wife, daughters and grandchildren, as set out above, all live at the family home. At present he is only able to see his wife, who suffers from depression, away from the family home and its curtlige. If he takes his wife shopping she has to carry the shopping 80 metres or so from the road up to the family home which is a farmhouse surrounded by agricultural land. He has not seen the grandchild for whom he assumed parental responsibility since his arrest in 2008, and he has never seen or met any of the other four grandchildren who have been born since he was first imprisoned. He points out in connection with the question of his risk of reoffending that only one of his five children is female. In statements which have been placed before the court his wife and his daughters express their keen desire for him to live at home and for him to meet and interact with his grandchildren under their close supervision. In their statements they contend that they are equipped and able to supervise any contact with the grandchildren.
13. The claimant complains that despite the fact that the licence conditions allow for relaxation of their restriction by permission granted by his supervising officer or a police officer, permissions have never been granted and in effect the conditions operate as a blanket ban. For instance, the claimant sought permission to return to the family home in July 2013 whilst his grandchildren were absent on holiday. Notwithstanding the production of receipts for payment of the holiday permission for him to return to the family home was refused. In 2015 he was permitted to return to the family home but was not allowed to enter it, and was only able to undertake repair to its driveway. In December 2015 the claimant was denied permission to return to the property in order to clear leaf mulch which had accumulated. In addition to the refusals to which he makes reference, over the course of time the claimant has had significant concern about the defendant's delays in dealing with correspondence over his conditions and the defendant's failure to answer his enquiries. As a consequence of these defaults the claimant has made successful complaints to the Ombudsman which have led to instructions to the defendant to investigate the delays and provide him with an apology.
14. In August 2013 the claimant applied to the Family Court for a contact order so as to enable him to see his grandchildren. He had two grandchildren at that time and two more have been born since. This application was supported by evidence from his family encouraging the court to permit direct contact between the claimant and his grandchildren. The claimant states that the judge in the case was unwilling to make any order that might contravene the conditions on his licence and therefore only indirect contact was permitted. Orders were made in respect of each of the two grandchildren who were the subject of the proceedings. The court made an Order which included the following terms on 15^th April 2014:

"Upon the court having heard evidence and taking the view that it is in the best interests of the child for there to be some life story work and that the parties and child would benefit from assistance in respect of promoting indirect contact between the applicant grandfather and the child;

And there was no representation from Social Services present when the decision was handed down as the Social Worker had been released;

The court invites Social Services to make contact with the family with a view to undertaking this work on the basis that if they have any objection or difficulty they can refer the matter back to court within 14 days of service of this order upon them by the Guardian's solicitor."

15. At a subsequent hearing on 9^th June 2014 the court endorsed the plan which had been specified by the local authority in the following terms in relation to both grandchildren concerned:

"1. The plan will be allocated to a Social Worker within 24 hours of today's date.

2. The allocated Social Worker will make contact with [redacted]; Mr Rimmer's Probation Officer within 7 days of today's date.

3. There shall be two sessions of direct work undertaken by the Social Worker and the child [redacted].

4. There shall be two sessions of direct contact work undertaken by the Social Worker and [redacted] regarding advice and the parameters of indirect contact between [redacted] and Mr Ian Rimmer to include the provision of an agreed explanation to the child regarding his lack of direct contact with his grandfather Mr Ian Rimmer.

5. There shall be two sessions of direct contact work undertaken by the Social Worker and [redacted] regarding advice and the parameters of indirect contact between [redacted] and Mr Ian Rimmer to include the provision of an agreed explanation to the child regarding her lack of direct contact with his grandfather Mr Ian Rimmer

6. The Social Worker will liaise with Mr Rimmer's Probation Officer regarding the work undertaken with [redacted], [redacted] and will request that Probation shall share this information in written format with Mr Ian Rimmer."

16. The claimant advises in his evidence that the form of the indirect contact which has been allowed is restricted. It may take place only through the use of a greetings card which can contain only language in the form of "to" and "from" with no printed message within it. Any greetings card which is to be sent has to be checked by the defendant prior to posting.
17. In the light of the present proceedings the defendant requested social services to undertake a further assessment in relation to the prospects for contact between the claimant and his grandchildren. This exercise was not fruitful as, for reasons which are explained in greater detail in witness statements in these proceedings from the claimant's daughters, they were unwilling to allow their children to be interviewed and assessed by social workers. It is unnecessary for the purposes of this judgment to explore how this comes to be the case. It suffices to say that there is clearly unease and suspicion, at the very least, on the part of the claimant and his family in respect of the intervention of Social Services and in particular a concern that social workers will be hostile and unsympathetic towards them and that they have little interest in facilitating any contact. It is unnecessary and inappropriate for me to either comment (or still less adjudicate) upon the validity of those concerns. They are however a reality which forms part of the factual the backdrop to this judicial review.

Law and policy

18. Section 250 of the Criminal Justice Act 2003 sets out the legal basis for the imposition of conditions on licences upon release. In so far as relevant to the present proceedings it provides as follows:

"250 Licence conditions

(1)In this section—

(a)"the standard conditions" means such conditions as may be prescribed for the purposes of this section as standard conditions, and

(b)"prescribed" means prescribed by the Secretary of State by order.

…

(4)Any licence under this Chapter in respect of a prisoner serving a sentence of imprisonment for a term of twelve months or more (including such a sentence imposed under section 227) or any sentence of detention under section 91 of the Sentencing Act or section 228 of this Act—

(a)must include the standard conditions, and

(b)may include—

(i)any condition authorised by section 62 or 64 of the Criminal Justice and Court Services Act 2000 [F2or section 28 of the Offender Management Act 2007] , and

(ii)such other conditions of a kind prescribed by the Secretary of State for the purposes of this paragraph as the Secretary of State may for the time being specify in the licence."

19. Section 252 requires the person subject to a licence to comply with the conditions specified within it. The Criminal Justice (Sentencing) (Licencing Conditions) Order 2015 prescribes the kinds of conditions which can be imposed as additional conditions pursuant to section 250(4)(b). It is not contended in the present case that any of the additional conditions which have been imposed exceed the authority provided by this Order.
20. Each offender under this legislative regime has a supervising probation officer known as an offender manager for the purpose of administering their licence. The defendant publishes policy in relation to the imposition of additional conditions upon a licence over and above the standard conditions required by section 250(4)(a) in PSI 12/2015. The overall aims of that policy are described in the following terms:

"1.4 The aims of the licence period are to protect the public, to prevent re-offending and to secure the successful re-integration of the offender into the community. Licence conditions should be preventative as opposed to punitive and must be proportionate, reasonable and necessary. Governors must have procedures in place for monitoring and enforcement."

21. The relevant policy which deals with the types of conditions which are in point in the present case is provided within the following extract:

"2.31 Exclusion zones constitute an interference with the rights of offenders under article 8 of the ECHR (right to a private and family life). However, this interference can be justified if it is necessary and proportionate. Necessary means an appropriate way of interfering with the right bearing in mind the objective it is sought to achieve and proportionate means there is no less intrusive means of achieving that objective. R (Craven) v Home Secretary is authority that sparing the victim and the victim's family from the emotional harm that may arise from a chance meeting with the offender is an objective that can justify the interference constituted by an exclusion zone. However, the zone and any applicable restrictions must be considered carefully and be no greater in extent or severity than is needed to minimise the risk of chance encounters whilst taking into consideration the effects on the offender's ability to visit family or friends, undertake work or carry out other legitimate activities. The interference with the article 8 rights of the offender's family must also be considered and it should be recognised that the complete eradication of any risk will often not be achievable whilst maintaining a proportionate exclusion zone.

2.32 A "no contact" condition or exclusion zone (see below) does not have to be restricted to the victim of the index offence. It could be the victim of a previous offence where they have been brought into the victim contact scheme on a discretionary basis, or the family of the victim of the index offence, where there is grounds to believe that the offender may target them or seek to make contact even though contact may cause distress. These conditions can even be imposed for the protection of the offender although typically it will suffice to advise the offender to avoid confrontations which could increase his risk. It might also be appropriate to have a "no contact" or exclusion zone condition for someone who is at risk of becoming a victim, or who is vulnerable to the particular risk posed to the offender. This may be particularly pertinent with offenders who have a history of domestic violence, as evidenced by previous call outs, or intelligence from children's services etc.

2.33 While there is a preference for including the victim's name in any non-contact conditions, this is not a requirement and in some circumstances there will be strong grounds for not doing so. In such cases the licence condition should only refer to the individual as "victim" or "victim of the index offence". Where this is required for members of the victim's family, they should be listed as "victim's brother" or "victim's mother" etc. A non-contact condition should never specify the "victim's family" as it is not a clearly defined group of people."

22. It is clear and obvious that the imposition of conditions which exclude a person from contact with his/her family will involve a breach of Article 8 of the ECHR. Article 8 provides as follows:

"Article 8

(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 wellbeing 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."

23. Conditions on such licences as prevent a person from accessing their family home will also give rise to issues in relation to Article 1 of the First Protocol to the ECHR:

"Protocol 1

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(2) The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

24. Dealing firstly with Article 8 it is clear from the statutory provisions of the 2003 Act which have been set out above that there is proper legal authority for the imposition of conditions of the kind imposed in the present case which do have an impact upon the claimant's Article 8 rights and those of his family. In my view it is equally plain that the conditions which have been set out above have all been imposed in accordance with legitimate aims which are specified in the language of Article 8. The conditions clearly relate to the prevention of crime, the preservation of public safety and the safeguarding of the rights of others in relation to the risks of reoffending. The issue is whether or not the imposition of the conditions are proportionate in the context of the legitimate aims which they pursue. Similarly, in relation to Article 1 of the First Protocol whilst the imposition of the conditions prohibiting the claimant from enjoying his private property have been lawfully imposed there is a question as to whether or not the condition is proportionate in the particular circumstances of his case.
25. It is clear from the terms of the policy that proportionality is intended to be reflected within its operation. Once, however, policy has been published by a decision-maker it is essential as a matter of law for the decision-maker to follow that policy unless there is good reason to depart from it which is expressed in the reasons associated with the decision: see Lumba v SSHD (2011) UKSC 12.

The Grounds

26. The claimant advances, in effect, two forms of challenge in relation to the conditions which have been imposed upon his licence. Firstly, he contends that the defendant has not implemented, or has misapplied, the policy which is relevant to the application of additional conditions. His submission is that the conditions have the effect of illegitimately punishing him rather than pursuing the objectives set out in paragraph 1.4 of the policy, and are directed towards apparently protecting victims in the form of members of his current family when in fact no members of his current family have ever been a victim of his offending, and indeed his only offence involving indecent contact with a relative was now nearly 40 years ago. Similarly, he submits his exclusion from his home is inconsistent with the policy.
27. Secondly, the claimant advances a proportionality case. He submits that the conditions which have been imposed on his licence are an excessively intrusive imposition on his family life and the enjoyment of his property going well beyond any measure which could properly be justified. He submits, further, that although the conditions are expressed in qualified terms they have in reality been operated so as to, in effect, apply without any exceptions. As set out above, his applications on particular occasions for the conditions on the licence to be lifted or relaxed have been refused, and his enquiries and queries have not been satisfactorily responded to in the administration of the licence. As such he argues that the conditions are disproportionate and have not been rendered any more proportionate by the opportunity that they afford for him to apply for an exception.
28. Whilst the submissions which have been set out above address the generality of the claimant's concerns in relation to the application of conditions xiv, xv and xvii, particular additional concerns both in respect of the application of policy and also in relation to proportionality are raised by him in respect of other specific conditions. In respect of conditions xi and xii which relate to ownership or usage of a camera he submits that these restrictions are both unnecessary and disproportionate since his offending did not involve him at any time in using a camera. There is thus no need for these policies nor do they accord with the policy contained within PSI 12/2015 in respect of such conditions which provides as follows:

"For the purposes of this condition, a camera is taken to mean any camera which is not a camera-phone. The word camera is also taken to mean items such as camcorders. The condition is intended to mean both digital and non-digital cameras, including devices such as webcams.

This condition would be permissible where a camera has been used in previous offending or there is a risk that behaviour could escalate whereby a camera could be potentially used in future offending. "

29. He submits that conditions vii and ix which relate to the use or ownership of a computer or other electronic data storage device and his ownership or possession of a mobile phone is similarly unnecessary. The claimant points out that since his release from prison he has accessed a computer in a public library without any problem occurring in relation to his usage of such a computer. As set out above his previous employment and indeed his work related skills are all based on the use of computers and therefore the condition renders him effectively unemployable. This is a condition which he has asked to be relaxed on various occasions but to no avail. He also points out the contrast between the condition imposed on the licence and that on his Sexual Offender's Prohibition Order ("SOPO"). The conditions on the SOPO do not prevent him from owning or using a computer or similar electronic storage device but rather apply conditions which enable the discovery of any history of internet use to be researched, and also provide for the inspection of such a device along with conditions pertaining to its operation which preclude deletion of its history or its use to contact children.
30. In addition to the contrast which the claimant draws between the conditions on his licence and those on the SOPO, which also differ in respect of unsupervised contact with any female under the age of 16 (as under the SOPO unsupervised contact is permitted with the consent of the child's parent or guardian if they have knowledge of his convictions) the claimant relies upon the case of R v Smith & others [2011] EWCA Crim 1772. In that case Hughes LJ (as he then was) concluded that a blanket prohibition in a SOPO on computer use or internet access would be impermissible. He further draws attention to the observations of Ouseley J in R v Terrell [2007] EWCA Crim 3079 in which it was concluded in the context of the SOPO regime that the serious harm caused by reoffending did not give rise to a cause of serious harm to the child victim of the photograph. In my view this latter authority is of limited assistance to the claimant since in that case the court was considering the differences between the requirements of a sentence of Imprisonment for Public Protection and the requirements which needed to be satisfied for a SOPO to be imposed. Further, the claimant relies upon academic research undertaken in relation to issues such as the likelihood of men who have convictions for online sexual offences going on to commit contact offences with a victim. The gravamen of that research demonstrated, in his submission, that there was a limited propensity of those who have been convicted of possession of indecent images of children from progressing to contact offences with children.

Conclusions

31. I propose to deal first with the contentions raised by the claimant that the conditions which have been imposed on his licence were not consistent with the policy published by the defendant in PSI 12/2015.
32. Dealing firstly with conditions xiv and xv I see no basis for the contention that the conditions which have been imposed are inconsistent with the defendant's policy in respect of licence conditions and victims. Whilst the claimant is entitled to observe that none of his offending (apart from the offence in 1976) has involved child family members, the policy endorses the consideration of conditions for the benefit of individuals beyond those who have been the victim of a previous offence. Paragraph 2.32 considers specifically the imposition of a "no contact" condition for the benefit of someone who is at risk of becoming a victim or vulnerable to the particular risk posed by an offender. In relation to the claimant it is undoubted and indisputable that there is a risk presented by him to child family members such as his grandchildren in the light of the nature of his offences. In accordance with the policy the defendant is entitled to guard against that by the imposition of conditions like those presented as conditions xiv and xv. Further examination of the particular provisions of those conditions arises below.
33. So far as conditions xi and xii are concerned in relation to the possession or use of a camera, again I am unable to accept the submission made by the claimant that conditions of this kind are inconsistent with the application of the defendant's policy. It will be apparent from the extract of the policy which has been set out above that the policy does not simply apply where a camera has been used in previous offending, but also applies in cases where there is a risk that "behaviour could escalate whereby a camera could potentially be used in future offending". Whilst the claimant is, again, entitled to contend that he has not made use of a camera in any of his previous offending in my view it is not outwith the terms of the policy, or for that matter unreasonable in the Wednesbury sense, for the defendant to have concluded that there was a relevant risk in the present case of misconduct escalating to a point where there was a risk of a camera being used in future offending. It is important to bear in mind, in my view, that these conditions are not intended to apply in perpetuity. They are imposed as part of the rehabilitation process following a person's release from prison and provide for the management of their risk in the community along with their reintegration into day to day life by controlling the risks that occur in their particular case whilst that rehabilitation and reintegration process takes place. Controlling the claimant's access to a camera in the light of his previous convictions, and the potential for use of a camera in an escalation of those risks, is in my view clearly consistent with the policy.
34. Turning to conditions xi and xii, conditions restricting the ownership or possession of mobile phones and sim cards, and mobile phones with a camera, are contemplated and addressed within PSI 12/2015 at paragraphs 5(a) and 5(b) of its annex A. In fact permission was granted by the defendant to permit the claimant to purchase a mobile phone with internet access on 27^th August 2015 in the following terms:

"As discussed previously, I understand that you wish to purchase a new phone which is highly likely to have internet access. This has been discussed at a MAPPA meeting and you have permission to do this. As you will be aware, your licence conditions direct that you may not delete the internet history on this device and allow your supervising officer and/or the police to have access to it which may include removing them in order to conduct technical checks to establish usage.

I am aware that you have requested permission to have two SIM cards though at this stage, you are permitted to have only one SIM card. This will be reviewed at regular intervals."

35. In my view the imposition of a condition of this kind in the claimant's case is entirely consistent with the policy and unexceptional, and therfore not unlawful.
36. Finally, turning to the question of residence and the prohibition under condition xvii, preventing the claimant from entering his family home, again such exclusions are addressed in paragraphs 2.31-2.32 of PSI 12/2015 above. Once more the purpose of the exclusion is clearly to address the risk which the claimant presents to his grandchildren who live at the family home. As I have set out above the policy is not simply directed to those who have been the victim of the offender, but it also addresses those who are at risk of becoming a victim, or vulnerable to the risks posed by the offender. As set out above, it is entirely consistent with the policy for a condition of this kind to be imposed in order to address the particular risks posed by the claimant as a person who has been convicted of serious and extensive offences involving child pornography.
37. It follows that I am unable to accept, whether in the general or the particular that the conditions imposed on the claimant's licence have been imposed in breach of the policy published by the defendant in respect of the imposition of additional conditions in the particular circumstances of this claimant.
38. I turn then to the human rights issues which have been raised. It will be evident from the matters which have been set out above in respect of the relevant legal principles that the key issue in this case is the proportionality of the conditions which have been imposed. Whilst I have noted and taken careful account of the claimant's submissions that he, for many years prior to his arrest in 2008, brought up two young daughters without incident, and that his only contact offence was now many years ago, it is in my view unsustainable to suggest that the claimant does not present a significant and material risk as someone who was convicted of a significant number of counts of possession of indecent images of children in circumstances where those counts were founded upon the discovery of tens of thousands of such images on the claimant's computer equipment. It is, further, a significant and worrying feature of the claimant's history that a very short period of time after his release from prison in 2009, and whilst on licence, the claimant was again committing further offences. The circumstances of his acquisition of those images, namely whilst having unsupervised access to his daughter's computer in the family home, are again highly relevant. As set out above whilst the claimant denies that he is guilty of those offences, nevertheless his convictions at present stand, and they and their circumstances have to be taken into account by the defendant in reaching a conclusion as to the appropriate conditions to be imposed. Thus the legitimate aims of imposing the conditions in relation to the management of the risks of reoffending are significantly reinforced in the claimant's case by the particular risks which are evidenced by his previous offending history. The seriousness of the images of which he was found to be in possession, and the significant extent of the library of child pornography of which he was found to be in possession cannot be wished away. As was pointed out by Mr Campbell, on behalf of the defendant, the academic studies to which the claimant makes reference are studies of a wide population of persons guilty of the kinds of offences of which the claimant was found guilty. The important issue is the particular circumstances of this claimant's case and the particular facts of his previous offending. The claimant's record and the particular circumstances of his offences give rise to a significant and inevitable concern about recidivism and escalation of his offending if his risks were unmanaged.
39. It is, of course, correct to observe that the conditions on the licence could not be proportionate if they did not admit of exceptions being made. The conditions which have been imposed on the claimant's licence are not a blanket ban, and do contain clauses which permit for exceptions to be made when the appropriate regulators consider that the risks presented by relaxing the conditions can be properly controlled. Albeit after the commencement of these proceedings, the relaxation of the condition in relation to possession of a mobile phone and sim card is an example of this process at work. Whilst the claimant complains that there have been individual instances, set out above, where in his view perfectly sensible requests for relaxation of the condition have been rejected, I am unprepared to accept that the refusals on those occasions were unjustified or illustrative of the conditions effectively being operated inflexibly and as a blanket prohibition. For instance, in relation to the occasion in 2013 when there was a planned holiday for his grandchildren the defendant was entitled to observe that that was no guarantee that contact between the claimant and his grandchildren might not occur. Thus, in principle, I am unable to accept the submission that the inclusion of the flexibility within the conditions which contemplates permission being granted for relaxations has on the evidence been operated inflexibly or inappropriately. On each occasion where the application has been made it has been necessary for the defendant to evaluate the particular evidence offered in support of the relaxation, and form a risk-based assessment of whether it can be permitted.
40. The considerations for the imposition of conditions xiv, xv and xvii are all related to prevention of contact between the claimant and his grandchildren or indeed other unsupervised contact with children under the age of 16. To that extent they run together. It will be evident from the reasons which I have set out above that I do not consider that the imposition of those conditions is in principle disproportionate in circumstances where there is an appropriate opportunity for carefully regulated contact to occur between the claimant and his grandchildren. Clearly in my view the merits of whether or not, and if so by what means, any contact ought to occur between the claimant and his grandchildren, in the light of the risks which have been identified in this case, cannot be properly and adequately addressed in an application for judicial review. The process is not suited to such an evaluation; in any event the essential focus of a judicial review is an examination of the legality of the conditions against the legislative framework and the human rights issues that arise and is therefore necessarily a narrower enquiry. In my view the defendant was correct at the outset of the hearing in this case to undertake to make the amendment to condition xiv set out above contemplating that contact or communication in some manner might be approved by an order of the Family Court, and that if the Family Court thought it appropriate to allow some form of contact or communication the conditions on the claimant's licence ought not to preclude that. That is an important concession, in particular in the context of proportionality, as in my view the Family Court is clearly best placed to examine what is in the best interests of the children, and as part and parcel of that exercise to assess whether or not the risks presented by the claimant in any way imperil his grandchildren if some form of contact were to be permitted. In the light of condition xiv specifically contemplating the involvement of the Family Court in assessing suitability of some from of contact I am satisfied that conditions xiv, xv and xvii are, in the various respects in which they seek to protect the interests of the claimant's grandchildren and any other children with whom he might have unsupervised contact, proportionate.
41. I recognise from the submissions which were made at the hearing that, as set out above, the claimant and his family are mistrustful of the involvement of social services in their cases. However, again, firstly it is an inevitable part of the legal processes which are properly engaged in circumstances of this sort that social services will be involved in evaluating and assessing the suitability of any form of contact between the claimant and his grandchildren whether now or in the future. Secondly, it is one of the functions of proceedings in the Family Court to evaluate and assess the merits of the advice provided by social services in respect of the issues pertaining to whether or not it is appropriate for some form of contact to occur. Thus, it is not in my view disproportionate for the conditions on the claimant's licence to contemplate Family Court proceedings as being a virtual inevitability in respect of whether some form of contact between the claimant and his grandchildren is going to take place. In effect, the engagement of the Family Court and its endorsement of the suitability (on the basis of all of the evidence before it) of some form of contact taking place, is key to the claimant's aspiration to establish some kind of relationship with his grandchildren. It is, I suspect, equally inevitable that any process likely to lead to any form of contact will necessarily be on the basis of a series of incremental steps which will require careful and potentially intrusive supervision.
42. Turning to conditions xi and xii, in my view those conditions are proportionate in the claimant's case. Whilst he is entitled to point out that his offences did not involve any use of a camera personally, they were inevitably offences in which a camera had been used by someone. As the policy rightly contemplates there is a need to control access to digital and non-digital photography in order to manage the potential for escalation of the claimant's risks as he is reintegrated into the community. I do not consider that the imposition of the conditions in the claimant's case was disproportionate.
43. I turn finally to an evaluation of conditions vii and ix. In relation to condition ix matters have been overtaken by events since the issuing of the judicial review by the granting of permission for the claimant to use a mobile phone and sim card on 27^th August 2015. Given that his offending involved access to the internet and the possession of indecent images obtained from that source I am unable to conclude that it is in anyway disproportionate for control to be exercised over his access to a mobile phone. Similarly, control of the claimant's ownership and use of a computer is, in principle, directly linked to his offending and also to his risk of reoffending. It is, of course, important to bear in mind that as a person who was employed in IT the operation of the condition is one which is of particular significance to him in terms of his employability. Notwithstanding this I am still unpersuaded that it is disproportionate for his ownership of, or access, to computers to be restricted. There is an inevitable contrast between the conditions of his SOPO and the conditions which are imposed as additional conditions on his licence. The licence is addressed to dealing with his immediate risks on release from imprisonment whereas the SOPO is designed for a far lengthier time period. In order to manage his successful reintegration into the community by controlling and managing his risks a condition such as condition vii is entirely appropriate. It is to the claimant's credit that he has been able to use computers in a public library responsibly, and no doubt that is a part of the gradual process of rehabilitation which will hopefully in the course of time lead to the conditions on his SOPO being adequate to control the risks that he presents in terms of reoffending.
44. In short I am unable to accept that the imposition of any of the conditions in the claimant's case are disproportionate, or that the provision within them for prior approval to their relaxation is disproportionate. I am satisfied that the conditions have been carefully designed to seek to closely and properly manage the risks of the claimant, who it must be accepted has been responsible for serious and extensive offending, whilst providing appropriately controlled and supervised opportunities for the claimant to demonstrate that his risks have been reduced.

Conclusions

45. For the reasons which I have set out above I am satisfied that the defendant has followed policy published in PS1 12/2005 in imposing and framing the conditions which have been imposed as additional conditions on the claimant's licence. I am also satisfied that whilst the conditions do involve interference with the claimant and his families' rights under article 8 and the claimant's rights under article 1 of the First Protocol of the ECHR, nonetheless such interference is proportionate bearing in mind the particular circumstances of the claimant's case and the legitimate aims pursued in causing that interference with the claimant's rights. For all of the reasons set out above the claimant's application for judicial review must be dismissed.