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English Court says lockdown-style long distance relationship does not breach Article 8 rights

Editorial Staff

In the case of R (on the application of Walsh) v Secretary of State for Justice, a convicted sex offender applied for review of a decision to move him from one in-community supervised residence to another. He argued that, inter alia, since being released from prison and into such residence, he had formed a stable relationship which such a move would disrupt. He argued that this would breach his rights under Article 8 of the EU Convention on Human Rights.

Upon his release from custody, Walsh was placed in a residential home in Peterborough in central England. His placement was to last 12 weeks and to end on 9th March. After that the rules provide for him to be transferred to "move-on" premises. There being no suitable premises in or near Peterborough, plans were made for him to be transferred to such premises in North Wales. That second placement would be for a maximum of 8 weeks after which he would be moved to another grade of supervised premises.

In his evidence, he explains that he is in a relationship with a woman who lives near Peterborough, that that relationship has lasted some three years, obviously, started at a time when Mr Walsh remained in prison. In the event that Mr Walsh were removed from Peterborough to North Wales that would, clearly, have some adverse impact on that relationship. [Walsh's counsel] submits to me today that it would de facto bring about the end of the relationship because Mr Walsh would cease to be able to have contact with his partner. I do not accept that that is a likely conclusion. The extent of any interference with Article 8 rights is, of course, important and in my view the extent of that interference in this case will be limited.

The duration of the placement in Plas Y Wern is no more than some eight weeks.

During that period Mr Walsh and his partner will be able to maintain contact by phone and video calls,no doubt in much the same way as they have maintained contact recently, at least since the lock-down conditions were imposed on all of us in late March this year.

- Swift, J, Queen's Bench Division, Administrative Court.

The Judge found that the removal would indeed have an effect on Walsh's rights. However, even without making reference to the manner of their relationship for the period of more than two and a half years where Walsh was in actual prison, the Judge found that separation, particularly for such a short period, would not perforce destroy the relationship which would, in real terms, not be affected by geography because that's how the relationship had functioned during the UK's lockdown created to try to contain the spread of coronavirus CoVid-19.

In fact, "I am told that the position remains that in principle there is no necessity for Mr Walsh to live at approved premises. If he were able to identify an ordinary accommodation address, that was acceptable to his probation officer and approved by that officer in accordance with condition 5 of the licence."

Walsh's core problem is that no local authority wants him in their area. His home town is Cardiff - authorities there say there is nowhere for him. He has remained temporarily in Peterborough under an interim Court Order but they don't want him. Part of the reason for that is that his girlfriend has a 16 year old daughter and the local authority thinks it is undesirable for Walsh to have contact with her. Indeed, his probation officer takes a similar view and, apparently without formally documenting it, has decided that Walsh should not live within an hour and a half's drive of his girlfriend's daughter. Because of the daughter's age, no reporting may be made which might tend to identify her and, therefore, her location is not known. But what we do know is that Plas Y Wern is less than 160 miles and about two and a half hours' drive from Peterborough, mostly on motorways. It's not a village - it's the name of the specific probation service home and although it is Wales, it is very close to the English border.

Moreover, by remaining at the Peterborough premises, Walsh is doing what is, in the National Health Service called "bed blocking." That's where someone is well enough to move from e.g. an ICU or acute bed into general admissions or, even, discharged for home care but, for some reason or other doesn't go. The result is that those who need that bed can't get it. In this case, Walsh's continued presence in the Peterborough home is preventing the release of another prisoner.

The implication of the Judgment is that the solution is in Walsh's own hands - all he has to do is find suitable accommodation in the private sector. That will be subject to the approval of both the probation service and the local authority in the district of which he chooses to live. That's where the real problem lies - the state doesn't want him continuously in short term post-release accommodation but he can only move to somewhere that other authorities approve. He wants to live in some kind of supervised accommodation falling outside the post-release homes. But no one wants him. He's trapped between two inconsistent systems.

This is not surprising: his original sentence was open ended with a certain minimum. That's why he's released on licence - technically, he is still serving his sentence. The trial judge appears to have taken the view that he might become remorseful and intends not to re-offend but he would never be fully rehabilitated.

as I have said, the requirement that Mr Walsh move to the premises in North Wales is only a requirement that subsists until 29 June 2020 and, as [the state] has made clear, if in the meantime were Mr Walsh to identify some other address, be it in Wales or in England that he wished to move to, he would be free to do so. At that stage, his supervising officer would consider, in accordance with condition 5, whether or not to give his approval for Mr Walsh to live at that new address. That being so, any interference with Mr Walsh’s Article 8 rights is at a low level.

ibid

Source: R (Walsh) v Secretary of State for Justice. [2020] EWHC 1250 (Admin)

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