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Procedural Fairness & Article 8 Challenge to Licence Exclusion Zone – Matthew Howarth Acts for SSJ

R (on the application of Hossain) v Secretary of State for Justice [2026] EWHC 862 (Admin)

Matthew Howarth, instructed by the Government Legal Department, appeared for the Secretary of State for Justice (“SSJ”) in this judicial review concerning the lawfulness of an exclusion-zone licence condition imposed on a determinate-sentence prisoner released on licence.

HHJ Karen Walden-Smith, sitting as a Judge of the High Court, dismissed all three grounds of challenge, upholding the SSJ’s decision to maintain an exclusion zone covering the whole of Horsham in order to protect the victim and his family from the risk and fear of chance encounters with the claimant.

Case Background

The claimant, a former teacher, had received concurrent determinate sentences totaling 5 years 4 months’ imprisonment for sexual activity with a child under 16 in a position of trust and perverting the course of justice. She also received a 10-year Sexual Harm Prevention Order (“SHPO”) and a restraining order preventing her from entering the Roffey area of Horsham.

Upon her initial release on licence in November 2023, her licence conditions included an exclusion zone covering the whole of West Sussex. Following recall and a further custodial sentence for breaches of the SHPO, the Parole Board directed her re-release in February 2025, preferring a narrower exclusion zone aligned with the restraining order (Roffey only) in the absence of material justifying the county-wide exclusion.

After renewed victim representations and multi-agency consultation, probation recommended, and the SSJ decided, to expand the exclusion zone to the whole of Horsham, in order to reduce the risk and anxiety associated with chance encounters. That May 2025 decision was then reconsidered in a fresh October 2025 decision, which maintained the Horsham exclusion zone while expressly addressing the claimant’s Article 8 rights and the impact on her ability to visit her family home.

The Issues

Permission having been granted on all grounds, the claimant challenged the SSJ’s fresh October 2025 decision on three bases:

  • Irrationality / Wednesbury unreasonableness – alleged failures to obtain relevant information, to consider the claimant’s mental health, family circumstances and reintegration, and an unjustified departure from the Parole Board’s narrower exclusion zone and from the Licence Conditions Policy Framework.
  • Disproportionate interference with Article 8 ECHR – it was said that the Horsham-wide exclusion zone amounted to an unreasonable and disproportionate interference with the claimant’s and her family’s right to respect for family life, particularly given the importance of her living with her family in Horsham.
  • Procedural unfairness – the claimant argued that she was not given a fair opportunity to make representations prior to the October 2025 decision varying the licence condition, and that this was unfair at common law and/or in breach of Article 8.

The claimant also sought to add a further ground shortly before the hearing, contending that the SSJ’s decision rested on a “false premise” because the victim was now living away from the family home while at university. That application to amend was refused in an extempore ruling at the start of the hearing.

The Court’s Decision

The court held that the May 2025 decision had been superseded by the fresh decision in October 2025, which reconsidered the position in light of the claimant’s challenge. Any
defects in the first decision were overtaken by the second, and, following Akinola v Secretary of State for the Home Department [2021] EWCA Civ 1308, the focus of the judicial review shifted to the new decision.

Irrationality

The irrationality challenge failed. The judge emphasised the high threshold for irrationality, particularly in the context of licence conditions and public-protection judgments made by experienced probation professionals, citing R (Carman) v Secretary of State for the Home Department [2004] EWHC 2400 (Admin) and R (Gul) v Secretary of State for Justice [2014] EWHC 272 for the proposition that the courts must be “steadfastly astute” not to interfere save in the most exceptional case.

On a fair reading of the October 2025 decision, the SSJ had considered extensive material, including the Parole Board decision, sentencing remarks, risk assessments, OASys, victim liaison information, the relevant policy framework, and the claimant’s representations and circumstances. The decision expressly recognised the claimant’s family circumstances, her wish to live with and be supported by her family in Horsham, and the impact of the exclusion zone on her access to the family home. It also considered, and rejected on monitoring and risk grounds, the possibility of a “corridor” into the exclusion zone.

The court held that the claimant’s family life, mental health and reintegration were not ignored; they were expressly identified, evaluated and weighed against the interests and rights of the victim and his family. That evaluative balance was a matter for the SSJ, and no public law error was shown.

Article 8 Proportionality

The court accepted that the exclusion zone engaged Article 8 rights – both of the claimant and her family, and of the victim and his family – but held that the interference with the claimant’s Article 8 rights was justified and proportionate.

Drawing on R (Craven) v Secretary of State for the Home Department [2001] EWHC 850 (Admin), the judge endorsed the principle that licence conditions can legitimately protect victims not only from actual contact with an offender but from the fear and anxiety of a chance encounter, provided the measure is necessary and proportionate.

In this case, the Horsham-wide exclusion zone was carefully tailored and significantly narrower than the earlier West Sussex-wide condition, protected the victim and his family in and around their home and local community, and still allowed the claimant to maintain family contact and access support outside the exclusion zone, as well as to apply to enter the zone for specific reasons where necessary. The balancing exercise carried out by the SSJ fell well within the range of lawful responses.

Procedural Fairness

The court rejected the procedural fairness ground. Applying R (Tabbakh) v The Staffordshire and West Midlands Probation Trust [2014] EWCA Civ 827, the judge confirmed that the threshold for finding a system inherently unfair is a high one, and that in the licence-conditions context the offender manager plays a key role in gathering information, engaging with the offender, and putting forward concerns through MAPPA and sentence planning.

On the facts, the claimant had a fair opportunity, through her offender manager and her legal representatives, to put forward her case before the October 2025 decision was taken. The system was not inherently unfair, and there was no breach of procedural fairness in the individual decision.

Why the Case Matters

The judgment is a significant application of Article 8 and public-protection principles to licence exclusion zones, particularly where the victim and offender live in close proximity. It confirms:

A. The continued importance of victim and victim-family Article 8 rights, including freedom from the fear of accidental encounters with an offender, as a legitimate consideration when designing and varying licence conditions.

B. The court’s reluctance to interfere with risk and licence-condition judgments made by probation and the SSJ, absent clear public law error.

C. That a carefully reasoned variation of a Parole Board–endorsed licence condition can be lawful where new information and victim representations justify a different balance between offender reintegration and victim protection.

Practitioners can expect this case to be cited in future challenges to licence exclusion zones and victim-sensitive conditions, particularly where arguments are advanced about proportionality and alleged departures from Parole Board determinations.

Practical Point

For those acting for the SSJ or probation in licence-condition challenges, this case underlines the importance of recording a structured balancing exercise:

  • Identify expressly the offender’s Article 8 interests (family life, reintegration, mental health).
  • Set out the victim’s and any family members’ Article 8 interests and the specific risks (including psychological harm and fear of chance encounters).
  • Demonstrate that alternatives and less intrusive measures have been considered, and explain why they are inadequate.
  • Show how the decision is rooted in the published Licence Conditions Policy Framework and any relevant multi-agency process.

Where that exercise is done and documented, the court is likely to afford a substantial margin of appreciation to the SSJ’s expert assessment of how best to manage risk and protect victims through licence conditions.

The Decision can be read here – https://caselaw.nationalarchives.gov.uk/ewhc/admin/2026/862

Matthew Howarth has extensive experience of judicial review claims in the High Court concerning public authority decision-making, including in the fields of prisons and probation, immigration detention, deportation, asylum support and Care Act 2014 duties. He regularly acts for the Secretary of State for Justice and the Secretary of State for the Home Department, instructed by the Government Legal Department, and is ranked as a Band 1 leading junior in the Legal 500 for both Immigration and Administrative & Human Rights Law.