Smith v The Parole Board

This appeal from a decision of Goldring J of 24 June 2003 raises a point of some practical importance. It is as to what should be the proper approach to be adopted when there has been a contested oral application for permission to apply for judicial review following which the judge gives permission for one or more grounds to be relied upon, but refuses permission for other grounds to be relied upon and the applicant wishes to pursue the other grounds because he considers that the judge was wrong to refuse to give an unspecified permission.

The background facts to the present case are as follows. On 8 May 1998 the claimant was convicted at Manchester Crown Court of rape and threats to kill. He was sentenced to eight years' imprisonment. He was also made subject to an extended licence order under section 44 of the Criminal Justice Act 1991, the effect of which was that the period during which he would remain on licence following release would be extended from the three-quarter point to the end of his sentence. The position is that if an offender is sentenced to four years' imprisonment or more, he is not automatically released from that sentence until the two-thirds point of the sentence. He would be entitled to apply for parole after the half-way stage and he would in the normal way cease to be on licence at the three-quarter point of the sentence. The position, as I have indicated, is different if an offender is subject to an extended licence order.

The claimant's sentence was reduced on appeal to six-and-a-half years' imprisonment. Accordingly, the claimant was entitled to be, and was, released on licence on 7 November 2001. His sentence is due to expire on 3 December 2003.

The claimant was required by the conditions of his licence to reside at a hostel. He was also required generally to be of good behaviour, not to commit further offences and not to take action which would jeopardise the objectives of his supervision.

While on licence the claimant on three occasions tested positive for cocaine and other class A drugs. Other tests were carried out on other occasions. On 25 January 2002, the probation service recommended his recall. On 4 February 2002, the Parole Board considered the matter and recommended recall. On 6 February the Secretary of State accepted the Board's recommendation and revoked the claimant's licence with the consequence that he was returned to custody.

The claimant's solicitors submitted substantial representations to the Parole Board. The claimant admitted the use of cocaine. However, he claimed that he had been clean of drugs when released from prison and that his current drug use whilst on licence was attributable to the environment in which he had been placed by the probation service subsequent to his release. He contended that drug-taking and supply was endemic in hostels.

By letter of 3 April 2002, the Board rejected the claimant's representation against recall. They did so having carefully studied the written representations that had been made. No application was made to the Board that they should hear oral representations. However, a claim for judicial review was issued more than eight months after the Parole Board's decision on 30 December 2002. The sole complaint is that the Parole Board took its decision without having held an oral hearing. This was alleged to be in breach of Articles 5 and 6 of the European Convention. The application sought urgent consideration, but permission was refused. The application for permission was also refused on paper by Hooper J on 3 February 2003. As he was entitled to do, the claimant renewed the application and sought an oral hearing.

On the oral hearing, in addition to relying on his arguments under Articles 5 and 6, he also contended that he was entitled to an oral hearing at common law. Silber J heard the oral hearing for permission on 17 March 2003. He granted limited permission, identifying the only issue which was fit for further hearing in the following terms:

“Whether in the light of the comments of the Court of Appeal in the case of West v Secretary of State for the Home Department the claimant was entitled to have an oral hearing prior to the determination of the Parole Board of 3 April 2002 because it constituted a determination of his civil rights and obligation under Article 6 of the European Convention on Human Rights or at common law. All other claims are dismissed.”

It is not in dispute that the effect of Silber J's decision, which was given after a hearing, we are told, of approximately three hours, made it clear that the claimant did not have permission to argue the Article 5 grounds of his application.

The claimant did not serve any skeleton argument for the substantive hearing. Instead he relied on a summary of argument which had been used at the oral hearing before Silber J. A skeleton argument was served on 30 May 2003. It set out the issue as defined by Silber J. The matter was due to be heard by Goldring J on Tuesday 24 June 2003. The day before that hearing Mr Scrivener QC, who appeared on behalf of the claimant, supplied an additional bundle of three new authorities and a supplemental skeleton in which he sought to revive his previous reliance upon Article 5 of the Convention. The Treasury Solicitor took objection to this as it was an issue in respect of which permission had been refused three months earlier. At the hearing on 24 June 2003, Mr Scrivener sought to persuade the judge to reconsider the question of permission on Article 5. He argued that Silber J's decision had been per incuriam because of three authorities, namely Hussain v UK (1996) 22 EHRR 1, Singh v UK (1996) 22 EHRR 1, and Waite v UK (App No 53236/99, 10.12.2002).

The three cases differed from the present because they deal with young offenders who because of their age had been detained during Her Majesty's pleasure instead of being sentenced to life imprisonment. In those cases, very briefly, it was decided that an offender who is detained during Her Majesty's pleasure is entitled to have his continued detention reviewed by the Parole Board and to have (at least in appropriate circumstances) an oral hearing in that regard on the basis not only of Article 6 but possibly primarily on the basis of Article 5. Mr Scrivener submitted that these cases, which had come to his attention and that of his instructing solicitor only shortly before the hearing before Goldring J, altered the situation. He would have sought to rely on them before Silber J if had been aware of them, and he contended, whether or not they were technically per incuriam, that they were cases which made his argument in reliance on Article 5 stronger than it had been when it was urged before Silber J.

Having heard the submissions which have been advanced before us by Mr Crow on behalf of the Secretary of State, we are not at this stage convinced that the three decisions on which Mr Scrivener seeks to rely significantly altered the position as it was argued before Silber J. However, it is right to point out, as is apparent from the transcript, that the argument before Silber J was primarily in relation to Article 6 and the argument in regard to Article 5 was touched on only briefly by Mr Scrivener in the course of his submissions. However, for the purposes of the present appeal we are not required to consider the significance of those authorities and we do not purport to give any indication as to their relevance to the issues which were to be determined by Goldring J.

In support of his application when before Goldring J, the claimant relied on the decision of Lightman in Regina (Opoku) v Principal of Southwark College [2003] 1 WLR 234. In Opoku Lightman J dealt specifically with the appropriate course to be adopted where, following a contested oral hearing for permission to apply for judicial review, the judge granted permission on one ground but specifically refused permission on another ground and the claimant wished to argue further that he should be granted permission in respect of the ground on which he was refused. Lightman J, first of all, looked at the Civil Procedure Rules and in particular the provisions of rule 54.15. At paragraph 14 of his judgment he said:

“It is important that there should be read into the Rules no limitation on the jurisdiction of the High Court to grant permission on a fresh application. There may be circumstances where notwithstanding the previous refusal of permission a second application may be appropriate or necessary. The previous decision may have been correct and not open to challenge at the time the decision was made, but circumstances may have materially altered, new evidence may have come to light or the law may have significantly changed (eg by a reversal of a decision of the Court of Appeal or by the House of Lords). It would be calculated to cause inconvenience and injustice if the High Court were precluded from granting permission in such circumstances: consider Spencer Bower, Turner & Handley, Res Judicata, 3rd ed (1996), para 172. Rather than reading any such limitation into the Rules it is appropriate to reflect the need for caution in the exercise of the jurisdiction and the need for respect for the legitimate expectations of previous successful defendants in the principles governing the exercise of discretionary jurisdiction.”

Lightman J was wise and correct to state the matter in that way. CPR 54.15 is in these terms:

“The court's permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed.”

CPR 54.15 clearly applies to other circumstances than that which arises on the present appeal. It would apply, for example, where permission had been refused only in relation to one ground on a written application for permission, or it could apply to a case where the application for permission was oral but it was not contested by the defendant to the claim. This judgment relates to the situation where there has been full argument and a decision has been made after consideration of the arguments then advanced. If in Opoku the matter had remained as indicated by paragraph 14 of the judgment, we would not question the correctness of Lightman J's approach. However, having turned to the question of the exercise of discretion, Lightman J referred to Chanel Ltd v F W Woolworth & Company Ltd [1981] 1 WLR 485. In that case on the interlocutory application by the claimant for relief in respect of alleged infringement of trademark and passing off the defendant gave undertakings until judgment or further order. Shortly thereafter the Court of Appeal in another case upheld the validity of a defence to the action which had been open to the defendants at the time of the application. The defendants thereupon applied for the discharge of an injunction, relying on the Court of Appeal's decision and filed evidence to establish that defence. The Court of Appeal refused to discharge the injunction. Buckley LJ gave a judgment with which the other members of the court agreed. It is not necessary for the purposes of this appeal to comment upon that judgment, save to indicate that in my view the questions that were being considered by the Court of Appeal in the context just described are different from those to be considered on an application of the sort which was being made before Goldring J by the claimant. However, at paragraph 16 in Opoku Lightman J followed that guidance in these terms:

“Following the guidance afforded by Buckley LJ, the relevant principle must be that the court should give proper respect to the provisions of CPR r 52.15, which lays down the normal appropriate route to be followed where an application for permission has been refused and to the legitimate expectation of the defendant that in the absence of an appeal to the Court of Appeal the threat of litigation is at an end. The court should only exercise its discretion to grant permission where the claimant establishes that there has been a significant change of circumstances or that he has become aware of significant new facts which he could not reasonably have known or found out on the previous unsuccessful application or that a proposition of law is now maintainable which was not previously open to him. If the fresh application merely relies on evidence which was available and propositions of law which were reasonably maintainable on the previous unsuccessful application, permission should be refused as an abuse of process.”

Having been referred to those two paragraphs of the Opoku judgment, Goldring J came to the correct conclusion that, if that was the right approach, any ability he had to grant permission to argue fresh grounds which had not been the subject of permission was not met by the claimant in the present case.

Accordingly the appeal was made to this court so that this court could consider coming to a different conclusion from that which Silber J had reached. In general Mr Scrivener advanced the same argument before us as he had advanced in the court below. He submitted that the three authorities to which I have referred related to a fresh issue which had not been before Silber J and therefore this was a case where it was correct as a matter of discretion to grant permission either in accordance with the guidance given by Lightman J in paragraph 16 or because it was appropriate to do so.

Mr Scrivener did not criticise the approach of Lightman J in relation to paragraph 14, but did not accept his approach in relation to paragraph 16. This court is concerned as to whether Lightman J's approach is an appropriate one. I have already indicated that I approve of the broad discretion to which he referred in paragraph 14 of his judgment, but I have very real reservations as to the limitations upon that discretion which he inserts in paragraph 16. Certainly the matters to which he refers in paragraphs 16 are ones which, if satisfied, could cause a judge to grant permission for a further argument to be advanced in relation to an additional ground. However, in my view what is referred to by Lightman J is not exhaustive. The discretion of a judge hearing an application for judicial review is wider than that indicated in paragraph 16. Of course, where, as here, a judge has heard detailed argument, any judge who is conducting the hearing of the main application is going to be require significant justification before taking a different view from the judge who granted permission. However, if he comes to the conclusion that there is good reason to allow argument on an additional ground, bearing in mind the interests of the defendant, the judge can give permission for that to happen. It is not unusual for a situation to arise, even in the course of a hearing, where it becomes apparent to the judge conducting that hearing that the interests of justice would be best served by the hearing taking into account arguments on matters which relate to a ground in respect of which permission has been refused. There obviously has to be real justification for permitting that to happen; but judges can be relied upon to ensure that the discretion is not misused. It is the obligation of parties to applications for judicial review, as in the case of oral litigation, to give as much notice as possible of their full case and to bring forward their full case at the start. However, quite apart from the specific circumstances indicated in paragraph 16 of Lightman J's judgment, there are going to be other situations where good sense makes it clear that the argument should be wider than it would otherwise be if it was confined to the grounds where permission has been granted. I would not seek to anticipate all the situations where that could happen. As long as a judge recognises the need for there to be good reason for altering the view of the single judge taken at the permission stage, no further sensible guidance can be provided. The circumstances which can occur are capable of varying almost without limit, and so each case must be considered having regard to its circumstances. The idea that there has to be a new situation for the permission to be extended is one which I would regard as wrong.

In exercising discretion it is sometimes necessary to bear in mind that if permission is refused in respect of a particular ground, the Court of Appeal on an appeal from the hearing at first instance will not be able to consider that matter where it is clearly desirable that it should be considered.

Turning to the facts of the present case, and bearing in mind the discretion which Goldring J in fact had, I have come to the conclusion that if he had not applied the guidance given by Lightman J in Opoku, the right conclusion for him to have come to is that the argument upon which Mr Scrivener wished to rely in relation to Article 5 was so closely related to the argument in regard to Article 6 that it was preferable in everybody's interests that the full argument was heard. Mr Crow submits that the argument in regard to Article 5 is hopeless, not least because it had been dealt with by Turner J in The Queen on the application of West v the Parole Board (CO/350/01, 26.4.92). Mr Crow is right that Turner J had dealt with the point. If his judgment is correct, that may well mark the demise of the Article 5 point. However, the Article 5 point and the Article 6 point are very closely interrelated. It would be highly undesirable, in my judgment, for the Article 6 point to be considered without also considering the Article 5 point. The desirability of the points relating to Articles 5 and 6 being heard together is emphasised by Regina (Giles) v Parole Board and another [2003] 2 WLR 196. That case has been the subject of appeal to the House of Lords where argument has been heard but the opinion of their Lordships as to the outcome has not yet been given. Giles is again a case which is capable of being distinguished from the present case. The decision in Giles is not likely to be finally determinative of the outcome of the present case, but it could be influential. It is difficult for this court today to forecast what will be the relevance of the decisions of their Lordships' House in relation to Giles on the outcome here. Accordingly it would be preferable to know their Lordships' views before reaching a conclusion as to the argument Mr Scrivener wishes to raise under Articles 5 and 6.

Accordingly, I would allow this appeal insofar as it is necessary to do so to enable Mr Scrivener to advance his arguments under Articles 5 and 6. However, the decision in this case is likely to be influential in a great many other cases. If Mr Scrivener is right in his submission that there has to be an oral hearing in these circumstances, that would have substantial implications for the Parole Board. It would place upon them a very substantial additional burden. It seems to me that that being the position, the sooner Mr Scrivener's arguments are finally disposed of the better.

The final disposal of those arguments is most unlikely to be achieved by a decision below the Court of Appeal as the parties concede. That being so, it seems to me that rather than remitting this appeal to the court below so that Goldring J can continue with the hearing, the convenient course is for this court to retain this case and hear the appeal itself. The facts are largely not in dispute. This court will be in every bit as good a position as the court below to determine the matter, other than the fact that it will be without the advantage of hearing the judgment of Goldring J who has retained this case. While recognising that advantage, I am of the opinion that this case should be heard by this court. The likelihood is that if it is listed in the normal way the case will not be the subject of a final judgment of this court prior to the decision in Giles being known. However, the court that hears the appeal will decide how best to deal with the possible relevance of the Giles decision.

There is therefore only one other matter with which I would wish to deal. The claimant is entitled to a review by the Parole Board of his present detention. That review has not taken place because he has not made an application for a review. The claimant's reasons for not making an application are understandable, but perhaps unduly cautious. They are based on the fact that he is concerned that if he applies for a review before the outcome of these proceedings is known he will be prejudiced on the hearing because the Parole Board will naturally determine the matter on the basis that he was rightly recalled, whereas he considers that he should not have been recalled. As to that it is my view that from his point of view it would be much better for him to have a review now than to await the outcome of these proceedings. If I am right that they are proceedings which require detailed consideration at least by this court, that would mean that there could be a reasonable delay before the outcome of the proceedings is known. It would therefore be to the claimant's disadvantage not to have a review at the earliest date practicable. However, that is a matter for the claimant to consider, together with appropriate advice from those who represent him.

I would therefore make an order that the application for judicial review should not be subject to any limitation; that the appeal in relation to that application should be retained by this court under Part 52:15(4) which provides:

“Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (3), the case will proceed in the High Court unless the Court of Appeal orders otherwise.”

Part 52:15(3) provides:

“On an application under paragraph (1), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.”

We give permission to apply for judicial review accordingly, without any restriction on that application. In relation to that permission we apply the concluding words under 52:15(4).

LORD JUSTICE AULD: I agree.

LORD JUSTICE CLARKE: I also agree.