Views welcome.
Patient receives a 37/41 order, with a restriction zone imposed by court not to enter two streets (where the victim resides).
In the process of applying for escorted leave, so VLO contacted, who contacts victim. Victim wants significantly larger exclusion zone - this includes most of the city the patient is treated in (and has grown up in, has family in, etc) and will significantly impact on the care team’s ability to identify a suitable discharge pathway. Not to mention significantly limits leave, and implicitly rehabilitation options.
A tribunal can set a different EZ on discharge but before that you would need to take it up with the MoJ. I have never known this to affect their decision myself, but others may have successfully challenged the MoJ.
If it;s a very serious offence, as a Sec 37/41 would suggest it was, victims have rights to go about their daily business (residence, work, hospital, socialising etc) without fear of encountering the offender, which is probably why they have requested most of the city.
I’d suggest for the victims to be essentially confined to two streets where they won’t come across the offender is hardly fair or proportionate.
I would just say that Tribunals can and ,sometimes, do set smaller EZs than those requested by VLOs. Obviously, tribunals consider each case on its own merits. As a lawyer representing a client I have to put forward their case to the best of my ability.
How did the court impose the exclusion zone? I’m not a criminal lawyer so maybe that’s a very basic question.
Yes, this sounds right. I’m sure the MOJ would consider any representations you send on the subject. In theory you could judicially review their decision about granting leave. In practice maybe the RC could make more headway with them.
It might be helpful to look at it firstly as if it was a probation/licence condition- there’s plenty case law where exclusion zones are judicially reviewed. Although exclusion zones for probation and restriction orders have slightly different purposes (each to avoid future offences, but one in-part punitive and the other treatment-focussed), both abide by the same issues of proportionality and necessity.
Firstly, clearly proportionality is in play as the exclusion zone impacts the patient’s Article 8 rights. As stated in R(Pham); “where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality”
Proportionality (as always) goes back to the 4-pronged approach in Bank Mellat:
Whether the objective of the measure is sufficiently important to justify the limitation of a protected right
a. It is, as covered in R(Craven) - the victim’s (and their family’s) right to go about their business without undue restrictions on movement & with minimum anxiety outweighs the offender’s Article 8 rights.
Whether the measure is rationally connected to the objective,
a. It is - clearly.
Whether a less intrusive measure could have been used without
unacceptably compromising the achievement of the objective, and
Whether, balancing the severity of the measure’s effects on the rights of the persons to
whom it applies against the importance of the objective, to the extent that the
measure will contribute to its achievement, the former outweighs the latter.
So it will be a exercise to explore:
Whether a less intrusive measure can be used to achieve the same outcome (whether that’s a smaller zone or another creative measure i.e. a couple of days where the patient is allowed to enter the exclusion zone to visit family or friends), and
How the restrictions contribute to the achievement of the objective.
a. And this is where mental health cases diverge from criminal cases as a large portion of the conditions are to ensure the patient remains well i.e. if family are a positive measure & contact is restricted due to the exclusion zone, there is a much stronger argument that this “prong” is not satisfied.
It’s all fact-specific, but in my experience the MoJ are unlikely to immediately capitulate unless there are very strong clinical reasons. It’s more likely they’ll ask the patient to come back in a few years once they have demonstrated they can remain well in the community. If they still don’t budge at that point - the patient can apply to the Tribunal who could, in theory, direct that alternative maps are provided by the MoJ. The recent case of AM v Greater Manchester [2024] affirmed in para 35 that even finding work in an exclusion zone would be a relevant consideration to vary conditions. Failing that, the MoJs decision can be challenged via Judicial Review.
Just to note that a tribunal can alter the exclusion zone themselves. They would not direct the MoJ to produce a new map. Also. they can set a different zone on discharge to that provided by the MoJ in respect of leave. This seems to be frequently misunderstood.
Thanks Karen. I had a similar case and sat down with counsel to consider the practicalities - it was thought that although in principle the FTT could alter the bounds of the exclusion zone, in practice it was unlikely they’d do this themselves. I think especially where there’s a more creative direction taken with a zone - the MoJ are best placed to come to the table with potential suggestions even if they don’t agree with them (for the FTT then to implement).