Introduction

This is an appeal from the order of Whipple J of 5 August 2016 dismissing the appellants’ claims for judicial review of the lawfulness of their detention and for alleged breaches by the respondent of public law duty and violation of Article 5 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”).

Both appellants were convicted of serious criminal offences and were sentenced in the case of the First Appellant (“Mr Bowen”) to life imprisonment (with a minimum custodial term of 14 years) (for an offence of murder) and in the case of the Second Appellant (“Mr Stanton”) to imprisonment for public protection (“IPP”) (with a minimum custodial term of 3 years) (for offences of wounding with intent to cause grievous bodily harm and unlawful wounding), in each case less time spent in custody on remand.

In Mr Bowen’s case the minimum custodial term expired on 22 August 2011; in Mr Stanton’s case, the term expired on 24 May 2013.

The appellants’ cases came for review by the Parole Board on 30 October 2014 and 26 March 2015 respectively. Mr Bowen had been in custody for nearly 17 years at the date of his Board hearing; Mr Stanton had been in custody for some 4 years and 5 months. Following the hearings, in each case the Board directed the relevant appellant’s release from custody on the basis that a number of conditions would be imposed by the respondent in the appellant’s release licence, including a period of residence at specified “Approved Premises”, namely Mandeville House (“MH”) in Cardiff. “Approved Premises” is the modern term for what used to be called “probation hostels” or “bail hostels”.

Each appellant had to wait for some time, after the date of the Parole Board decision, for a place at MH to come available, although the approximate date of availability was known to the Board at the time of each of their decisions. In Mr Bowen’s case, the wait was 69 days; in the case of Mr Stanton, it was 118 days. Mr Bowen was released on 21 January 2015, with the requirement of residence at MH; he did so reside for 8 weeks before more general release into the community. Mr Stanton similarly resided at MH for a period upon release, in his case for almost 11 weeks.

Each appellant claimed that the periods spent by them in custody after the Parole Board decisions and before release, because of the delay in placement at MH, constituted a breach of s. 28 of the Crime (Sentences) Act 1997 (“CSA 1997”), a breach of Article 5 of the ECHR and a breach of the duty described in the decision of the European Court of Human Rights (“ECtHR”) in James v United Kingdom(2013) 56 EHRR 12.

The judge dismissed each Appellant’s judicial review claim. In an application for permission to appeal presented to the judge, Mr Rule (for the appellants) formulated four points which he submitted warranted appellate attention. They were these:

By Appellant’s Notice filed on 30 August 2016, but with grounds dated 29 November 2016, the appellants appealed on the one ground upon which the judge had granted permission and applied to this court for permission to appeal on the three remaining grounds. It was directed subsequently that the application for permission to appeal on the additional grounds should be heard together with the substantive appeal on ground (1), with the appeal to follow if permission were granted. We heard the appeal and the application for permission to appeal over 1 ½ days on the dates mentioned above.

The four points made in the original grounds of appeal were re-formulated by Mr Rule, in his skeleton argument, in five grounds as follows:

At the conclusion of the hearing on 29 November 2017, we informed the parties that permission to appeal on the additional grounds would be refused and that our judgments on the appeal and on the permission application would be reserved and handed down together. This is my judgment on the appeal on ground (1) and I give my own reasons for refusing permission to appeal on the other grounds.

Detention History and Parole Board Decisions

I need now to say a little more about the history of the appellants’ detention, their parole hearings and the Board’s decision in each case.

I begin with Mr Bowen. He was born on 2 June 1952 (and so is now 65 years old). Following expiry of his minimum custodial term on 22 August 2011, on 12 September 2012 the Board recommended his transfer to open conditions. That occurred on 31 October 2012. On a paper review by the Board in January 2014, an oral hearing of his case was set for 1 March 2014. The offender manager explored, in advance of the hearing, the possibility of a place for Mr Bowen at MH and was told that no place would be available until 21 January 2015. The date for the oral hearing before the Board was changed to 30 October 2014, for reasons unconnected with the placement date at MH. However, we were told by Mr Rule that the Board has accepted that the delay to the final hearing date had been accepted by the Board to have been excessive and unlawful. (Following the hearing, at my request, he produced to us a letter of 8 December 2014 from the Parole Board to his instructing solicitors to that effect.) The probation service recommended, however, that release, when it occurred, should initially be on terms as to residence at MH, because the risk of harm to the public that Mr Bowen presented on release was assessed at that stage as “high”.

The Board’s decision (dated 13 November 2014) gave extensive details of the evidence considered by the panel, an analysis of the offending, the potential risk factors presented by Mr Bowen’s release, his progress during the custodial part of the sentence and an assessment of the current risk to the public which he presented. At its conclusion, the decision set out a number of licence conditions that it considered should apply on release, including residence at MH (with requirements of reporting and curfew at those premises).

The decision evaluated the effectiveness of plans put forward to manage risk to the public presented by Mr Bowen on release. It was stated that release was supported by the reporting psychologist, the offender supervisor and the offender manager, with a risk management plan “based on your residing for 4-6 months [sic: it is agreed that “4-6 weeks” was intended] at Approved Premises where you will be supported by your key worker. Whilst there you will have to conform to its rules...The panel endorses your additional licence conditions as being robust and comprehensive”.

For the purposes of Mr Bowen’s case on the appeal it is necessary to note that at the beginning of the decision, before addressing the other features of the case which I have mentioned, the Board said this:

In the section dealing with “Evidence of Change during Sentence”, the Board said the following, as material to the present appeal:

Turning to Mr Stanton, after the expiry of the tariff period in May 2013, on 11 December 2013 a panel of the Board recommended a move to open conditions, to which he moved on 4 February 2014. After the next review, the Board convened an oral hearing of Mr Stanton’s case for 26 March 2015. In advance of that hearing, the offender manager asked for a place for Mr Stanton at MH and was informed that a place would become available in July. This was later confirmed as available for 23 July 2015. The panel was aware of this date at the time of the hearing.

In Mr Stanton’s case, the decision was also detailed in similar respects to that made in respect of Mr Bowen. It was noted that Mr Stanton had begun rehabilitation work with an organisation based in Cardiff (“Invisible Walls”) and had completed four overnight “home leaves” at MH. Risk of harm to the public was assessed still as “high”; there was “an increased risk of future violence”. However, it was stated that, “The risk management plan is based around a period of residence at [MH] – a bed is said to be available from 23^rd July 2015”. The Board’s conclusion was:

I turn to the material legislation and ECHR provisions.

ECHR and Domestic Legislation

Article 5 of the ECHR provides, as far as relevant to this appeal:

In domestic legislation, Chapter II of Part II of CSA 1997 deals with “LIFE SENTENCES Release on Licence”. Section 34 provided that a “life prisoner” includes a person serving a sentence of IPP, under s. 225 of the Criminal Justice Act 2003 (“CJA 2003”) (as imposed upon Mr Stanton). Mr Bowen was, of course, a life prisoner in the ordinary sense of that term.

Section 28 provides as follows (in its material parts):

Section 31 of CSA 1997 states this:

Approved Premises

Accommodation in “Approved Premises” is one of a number of “probation purposes” specified by the Offender Management Act 2007 (“OMA 2007”). Section 1 provides (as far as material):

The judge recited in her judgment that Approved Premises are principally reserved for prisoners released on licence who pose a high or very high risk of harm in the community. They are resource intensive, with 24 hour staffing and enhanced supervision of those resident in them. Residence is temporary and is usually for about three months to assist transition to living in the wider community. None of these general statements in the judgment are challenged on this appeal.

Grounds of Appeal

So I turn to the grounds of appeal, which essentially reflect the same points as were argued below, beginning with ground (1), the ground which is advanced with the permission of the judge. This ground is in two parts. The first part (ground 1(a)) deals with the construction of CSA s. 28; the second part (ground 1(b)) addresses the reasonableness in each case of the wait for a place at MH.

For the appellants, Mr Rule argues that s. 28(6) requires that the Board shall not direct release of a life prisoner unless “it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”. However, as s. 28(5) provides, “As soon as…(b) the Parole Board has directed [a life prisoner’s] release under this section, it shall be the duty of the Secretary of State to release him on licence” (italics added in each case for emphasis). Thus, in each of these cases, Mr Rule says, the Board directed that the appellant should be released (in the decision in Mr Bowen’s case at the very outset of the document) and the Secretary of State (for Justice) came under an immediate duty, under s. 28(5), to release as soon as the Board did so.

As he did before the judge, Mr Rule accepts realistically that the release did not have to be at the moment of issue of the Board’s decision, but contends that release should have followed within a very short time and should not have been delayed for anything like the 69 days and 118 days that followed the decisions in these cases. In support of this primary submission, Mr Rule advances five overarching points and six other following propositions.

The five points are: 1. All detention is unlawful unless justified, the burden being upon the detaining authority to justify it; 2. At tariff expiry, detention can only be justified pursuant to judicial decision: ECHR Art. 5.4; 3. Regular and prompt review of detention is required; 4. The executive is not permitted to control post-tariff detention; 5. The Board is a creature of statute and has no powers beyond those conferred by statute.

The six further propositions, as developed, were as follows.

First, “it is wrong to re-write the statutory provisions”. Mr Rule pointed to paragraph 29 in the judgment of Lord Mance in R (Sturnham) v Parole Board[2010] AC 254, 330G, cautioning against paraphrasing the words of a different statutory provision. He also pointed us to paragraph 15 of the judgment of Lord Phillips of Worth Matravers CJ (as he then was) in Thet v DPP [2007] 1 WLR 2022, 2027 stating that, if a criminal statute is ambiguous, the defendant should have the benefit of the ambiguity. The judge, says Mr Rule, (in effect) re-wrote the clear requirement of immediate release, under s. 28(5), to become a requirement of release as and when a place at MH became available.

Secondly, it is argued that to construe the obligation upon the respondent as being to release as soon as he is able to do so, but not until licence conditions are capable of being fulfilled is inconsistent with the words of s. 28 and with indications from decisions in other cases in the Supreme Court. Reference was made to Lord Hope in R (James & ors.) v Secretary of State [2010] 1 AC 553 at paragraph 14 as follows:

Mr Rule argues that once the Board has decided that detention was no longer necessary for the protection of the public, as must have been concluded in each of the decisions in this case, then the “causal connection” between the detention and the custodial sentence imposed for public protection has been broken and nothing should stand in the way of release.

Thirdly, Mr Rule says that to construe the obligation to release as arising only subject to availability of Approved Premises is inconsistent with the board’s own approach to s. 28.

Fourthly, it is submitted that the failure to recognise an absolute duty to release upon the making of a direction to that effect by the Board is contrary to the respondent’s own policies. For example, Mr Rule referred us to a short passage in a two-page extract from a Probation Instruction 32/2014 “Approved Premises”, Annex A (Manual), paragraphs 31.15 and 31.17, as follows:

Fifthly, Mr Rule argues that the construction contended for by the respondent, and held by the judge to have been correct, is inconsistent with a number of cases in which the respondent has settled claims, not dissimilar to these, when pending at first instance, on the basis of over-lengthy detention.

Sixthly, it is said that the judge’s construction of s. 28 introduces a lack of clarity and certainty into the Act and impermissibly frustrates the purpose of the statutory scheme which is to import judicial control of the duration of any penal detention.

Mr Rule recognises, however, that the respondent has to have the leeway of a short period of time to effect the directed release “as soon as” it is made. For example, it is permissible for the Board to retain control of the matter by adjourning for a short period to permit the putting into place incidental elements of a risk management plan, as illustrated by the case of R (Robinson) v Parole Board [1999] Prison LR 118.

In that case, a panel of the Board had decided that a life prisoner might be released and that such risk as did exist (of “minor sexual offences under the influence of alcohol”) might be managed within a structured release plan not necessarily involving hostel accommodation: see per Simon Brown LJ (as he then was) at paragraphs 5 and 10. The panel adjourned the case for 28 days for this purpose.

In the course of the adjournment in that case, the Avon Probation Service made it clear in correspondence with the Board that it did not consider that it could devise a structured release plan and was maintaining its stance taken at the first hearing that release would only be possible by way of a release plan involving hostel accommodation: see paragraph 17. It advanced such submissions before a new panel at the adjourned hearing and in its decision that panel decided that the prisoner could not be safely released at that time.

Upon challenge to that decision the Divisional Court held that it was not open to the second panel to re-open the risk assessment made by the first panel and to go back upon the decision of the first panel to direct release. At paragraphs 27 and 28, Simon Brown LJ said,

Notwithstanding these submissions, Mr Rule accepts, I think, that there is no specific authority resolving the present issue of construction and, in my view, the materials and authorities, dealing with other circumstances in other cases, to which he has referred us, can only assist to a very limited extent. It is necessary, it seems to me to return to the specific words of the statute and to look to what the Parole Board’s decisions in these two cases actually directed.

In my judgment, it is clear from s. 28(6) that the Board cannot give a direction for release under s. 28(5) unless it is satisfied that it is no longer necessary to confine the prisoner for the protection of the public. While there is no express provision empowering the Board to compel particular licence conditions, it is clear from s. 31(3) that the scheme envisages that the Board will in fact make recommendations as to the conditions that are desirable in order to achieve the protection of the public and it would be entitled to determine that it is not “safe” to release the prisoner without such conditions being in place.

It is common ground that in making a direction with recommended conditions, the respondent can only have a reasonable time in which to put the conditions in place. Thus, for example, as here where it is envisaged that release might be directed, enquiries are made (with regard to availability of Approved Premises), before the hearing takes place before the Board. The panel is then informed when a place will be available.

In the present cases, the panels knew when places were to be available at MH for these appellants and on that basis were prepared to direct release, compatible with public protection, with the recommendation that the appellants should reside at those premises when first released. It can safely be assumed, I think, that if that accommodation had not been available as part of the risk management plan, the panels would not have directed release at all.

The working of the Act is that the Board will direct a release in a manner that it consistent with the protection of the public. It may do so absolutely or it may do so, with the knowledge that certain safeguards can be put in place to achieve that result. The prisoner can have his release on that basis or not at all. In these cases, the appellants were released from custody in accordance with the release arrangements which the Board considered to be consistent with the protection of the public.

If, as I see it, the appellants would not have been released at all if Approved Premises could not be made available, they can hardly complain if they are released in accordance with a direction that release will occur on a defined date when the premises are known to be available. This is subject to the points arising under ground 1(b) and under ground (5).

In my judgment, each of these Parole Board decisions are properly to be read as directing release subject to the risk management plan, including residence at the Approved Premises. As the judge said (at paragraphs 37 and 40) the conditions imposed are “part and parcel of” and “integral to” the decision to direct release.

It is accepted by Mr Flanagan on behalf of the respondent (in my view, correctly) that if release is directed with a recommended condition of residence at Approved Premises the release must not be delayed beyond a reasonable time on the facts of each individual case, but he submits that, with that limitation, the s.28(5) duty is fulfilled once the release occurs within such reasonable time.

He referred us to the decision of Langstaff J in R (Elson) v Greater Manchester Probation Trust[2011] EWHC 3692 (Admin). This was a decision refusing permission to apply for judicial review and would not normally be citable as authority. However, the judge referred to it in paragraph 25 of her judgment and, to my mind, we could not sensibly ignore it, since (in effect) the judge adopted the decision as part of her own reasoning.

The passage from Langstaff J’s judgment in Elson was this:

I agree with Langstaff J and the judge that Parliament cannot have intended the section to work in a way that would have the impracticable results that flow from the construction which Mr Rule would have us adopt. Of course, prior planning is made by the offender manager to see when a place at Approved Premises would be available, as happened here. It enables the panel to know that, if it directs release to Approved Premises, the release can be safely achieved with the relevant risk management precautions in place. However, to my mind, an intention to require immediate release at a time before such precautions are known to be available is not something that one should readily attribute to Parliament. As Langstaff J also pointed out, if a prisoner is released on condition of residence at a place which is not available to him it would have the result that he would have to be brought back to prison immediately the condition was broken on the first day out of custody. Such a result can hardly have been intended.

In my judgment, all this shows that the construction of s. 28 advanced on behalf of the appellants cannot be correct.

Under that section the Board will direct release in such a way as to satisfy it, in accordance with s. 28(6), that it is no longer necessary to confine the prisoner to custody. If conditions are necessary to achieve protection of the public it will recommend their imposition, it being implicit that its direction is subject to those conditions. The alternative is simply to refuse to direct release which can hardly be in the interests of the prisoner. I simply do not accept Mr Rule’s contention that if release subject to residence at Approved Premises cannot be achieved immediately, then the prisoner has to be released without any such condition. To attribute such an intention to Parliament in enacting s. 28 seems to me to be fanciful.

Before leaving ground 1(a), I would record that Mr Rule also referred us to certain provisions of the Criminal Justice Act 2003, dealing with the release on licence of prisoners other than life prisoners. The provisions were among others: ss. 255C(5), 256, 256A(4). I found nothing in these provisions to assist in the construction of s. 28 of CSA 1997 and I say no more about them.

For these reasons, I would reject ground 1(a) of the Grounds of Appeal.

Assuming, however, as I think, the Act does not require the immediate release of a prisoner if necessary conditions cannot be put in place, it is common ground that the respondent is under a public law duty not to delay a prisoner’s release beyond “a reasonable timeframe”.

The judge put the test for assessment of the time frame, in paragraphs 41 and 42 of her judgment as follows:

He accepted, however, that one of the factors that had to be taken account, along with matters relating to an individual prisoner’s case, in deciding whether a reasonable timeframe for release has been exceeded, is to look at whether the overall provision of Approved Premises has been so insufficient as to have given rise to the delay in the offering of a place to the individual concerned. This point strays into the point raised in ground (5) of the grounds of appeal upon which permission to appeal is sought.

Mr Rule does not, I think, challenge paragraphs 41 and 42 of the judgment of Whipple J as to the legal test to be applied. However, he argues that the evaluation of the facts and the conclusion drawn by the judge on this point was wrong. He does not wish us to go beyond the primary facts as found by the judge in applying the test that she formulated. However, he argues that the judge’s evaluation of the facts in her decision as to the reasonableness of the time taken to release these appellants was plainly wrong and that this court is as well-placed as the judge to make the necessary evaluation since all turns upon the written evidence that was before her.

Before addressing, in the context of ground 1(b), any question of the overall provision of Approved Premises by the respondent, I will consider what is the correct approach of this court on ground 1(b), which is part of the ground upon which the appellants have the benefit of a grant of permission to appeal.

It is clear the appeal is limited to a review of the judge’s decision; it is not a rehearing of the case as presented below: CPR 52.21(1). The function of the appellate court, in deciding on review whether a first instance judge’s decision has been wrong (CPR 52.21(3)(a)), has been considered in a number of cases, mostly in cases where, in deciding whether a particular legal threshold has been crossed, an evaluation or appraisal has been made of the evidence of witnesses: see e.g. the complex decision of the Supreme Court in Re B (Care Proceedings: Threshold Criteria)[2013] 1 WLR 1911, where more general statements of principle are also to be found. In my judgment, however, one has to be careful in assessing how much of the general comments can be transposed directly from the rather particular circumstances of that case: i.e. an assessment of whether a trial judge had been correct in his “threshold” decision under the Children Act 1989 and in his decision on “proportionality” for the purposes of Article 8 of the ECHR.

I have also considered again the judgments of this court (again on an appeal from a decision after a trial with witnesses) in Assicurzioni Generali SpA v Arab Insurance Group[2003] 1 WLR 577.

At paragraph 15 and 16 in that case Clarke LJ (as he then was) said:

While I note that, in paragraph 15, Clarke LJ was considering appeals from trial judges conclusions on primary facts, the important point is made that the appeal court’s approach will be conditioned by the extent to which the first instance judge had an advantage over the appeal court in reaching his/her decision. If such an advantage exists, then the appeal court will be more reticent in differing from the trial judge’s evaluations and conclusions. The same approach would, I think, follow when the appeal is from a trial judge’s evaluation or conclusion drawn from primary fact or where the judge has reached his/her views from a number of factors: sometimes called “a multi-factorial decision”.

At paragraph 94 in that case, Clarke LJ said this of the term “review”:

In drawing assistance from Re B for the purposes of this case, I found particularly helpful the judgment of Lord Clarke of Stone-cum-Ebony (as Clarke LJ had become) in that case at [137] where he commented upon his own judgment in the Assicurazioni case, as follows:

Neither Re B nor Assicurazioni were cited in the arguments, written or oral, before us. However, the decisions are very well known.

In considering the extent of the review of a judge’s decision on appeal, it has to be borne in mind that modern appeal litigation has a number of exigencies, including the fact that, while a substantial degree of “pre-reading” will be done by judges in advance of the hearing of an appeal, it is rare (and it is rarely appropriate) that they will be invited to read in advance all the written evidence adduced below (save in a very straightforward case). Further, even after the hearing of the appeal, it will again be rare (save in a very straightforward case) that the court will have seen the whole range of evidential material that was presented to the first instance judge.

It is clear that in the present case, we have not been directed by Counsel (either at the hearing or before it) to anything like all that was presented to Whipple J and which she must have used to reach her admirably concise evaluation of that material in the sections of her judgment dealing with “Reasonable Timeframe” (paragraphs 41 to 46) and “Breach of Duty” (paragraphs 72 to 75). To that extent, the judge had significant advantage over us in making the assessment of “reasonableness” when deciding the issues that underlie ground (1)(b) on this appeal.

With these considerations in mind, one turns to this court’s decision in Smech Properties Ltd. v Runnymede BC[2016] EWCA Civ 42 (which was cited to us by Mr Flanagan), where Sales LJ said this at paragraph 39:

It seems to me that Sales LJ was addressing the exigencies of reviewing a first instance judge’s assessment of primary facts, even where (as in our case) the evidence before the court below was entirely in writing. All will depend on the circumstances of the case and what opportunity the court has, in reality, to improve and correct the overall assessment of the evidence before the first instance judge as a whole.

In my judgment, in this case, the court has to afford considerable deference to the judge’s decision on this issue, given the amount of material deployed before her to which our attention was not and could not have been drawn within the time estimate for the hearing and the pre-reading estimates given by the parties.

With this in mind, I turn to the specifics of ground 1(b).

In the case of Mr Bowen, the judge decided this:

In the case of Mr Stanton, the judge observed that Mr Rule had not addressed the point separately from the s.28 arguments and said, “I am unclear whether it still forms part of Mr Stanton’s case before me”. The judge noted the primary features of Mr Stanton’s case advanced by the respondent, as follows:

The judge noted the further argument raised by Mr Stanton that he should have been afforded the benefit of an earlier place at MH that was not used by another prisoner whose application for release before the Board had not been as successful as his own. She noted the evidence of the offender managers that they had not known of the other prisoner and, she observed, that they said “(correctly) that allocation of beds is a matter for MH”.

The judge’s conclusion in Mr Stanton’s case was this:

On the appeal, Mr Rule argues that the judge failed to take adequate account of eight factors: 1) the progress made by each appellant in the custodial part of his sentence in reducing the risk to the public presented by him; 2) the delays inherent in each case in reaching the hearing before the Board, recognised at least in Mr Bowen’s case as having been in part unlawful; 3) the comment in the probation policy document (quoted above) that a 6 to 8 week period is towards the limit of acceptable delay; 4) the comparative lengths of time involved in achieving a place at MH and in residence by the appellants at those premises after release – in Mr Bowen’s case, a 69 day wait in custody, for what turned out to be a 56 day period of residence; in Mr Stanton’s case a 118 day wait, for a 75 day stay; 5) the fact that the implementation of the Board’s decisions forms part of the UK’s compliance with Article 5.4 of the ECHR. (With regard to this factor, Mr Rule referred us to R (Noorkoiv) v Secretary of State for the Home Department[2002] 1 WLR 3284, (especially at paragraphs 24, 26, 30-31 and 36) where a delay of up to three months (after tariff expiry) in holding a Board hearing was a breach of Article 5.4.); 6) what Mr Rule said was the failure to take reasonable steps to find alternative Approved Premises in each case; 7) in Mr Stanton’s case, a failure to afford to him the place that became available when another prisoner failed to secure a release recommendation from the Board; and 8) the delay in providing places was a symptom of a public law failure to provide sufficient Approved Premises generally.

Mr Rule also asks us to note the relatively short periods of detention, beyond what were considered to give rise to a claim to damages in rather different circumstances, in R (Faulkner & Sturnham) v Secretary of State for Justice & anor. [2013] 2 AC 254.

I have considered these submissions by Mr Rule and it seems to me that a particular feature of the case made for each of these appellants is that focus is directed simply to the bare number of days for which each appellant had to wait for a place at MH after the Board’s decision before being released. There is an inadequate focus, to my mind, on the overall context of the two cases. The appellants simply present the 69 and 118 days periods and then compare them with other unrelated periods: the periods in custody, the periods waiting for the working through of the parole process, the periods spent in residence at MH and (even more remotely) the periods of delay found to have given rise to breaches of the ECHR in entirely different contexts (such as in the Noorkoiv, and Faulkner & Sturnham cases and in R (Fletcher) v Governor of HMP Whatton[2015] 3 All ER 558 – another case about the failure to provide sex offender courses preventing prisoners demonstrating that the danger to the public presented by them has been eliminated or reduced to a satisfactory level).

As the judge in her judgment and Mr Flanagan on the appeal point out, it was of the nature of the sentences imposed upon the appellants that they were indeterminate and that release would only be achieved upon the Board being satisfied that release could be managed in the community, with suitable risk strategies in place. Residence conditions on initial release are only to be expected in such cases.

In general terms, it seems to me that the decision as to whether any particular period prior to release of a life/IPP prisoner, with a residence condition, is unreasonable or not, will depend entirely on the facts of the particular case, unless it appears that national unavailability of Approved Premises placements has had a genuinely adverse effect on an individual prisoner. The “national” question is, of course, ground (5) to which I will come, although, as I recognise above, the point arises as one of the factors affecting the reasonableness or otherwise of any specific waiting period.

In my judgment, however, the judge’s conclusions on the present issue, as challenged by ground 1(b), were correct. Certainly, having regard to the material we were shown during the oral submissions, they were not obviously wrong.

First of all, it was not clear to the judge what point was being taken by either of these appellants on this issue. Mr Bowen appeared to advance no case on the matter and Mr Stanton’s point was mixed up with submissions on s.28. That is not the best foundation for an appeal challenge to the judge’s findings. As it is, the answer to the point, in Mr Bowen’s case was given shortly, and in the proper context of the 14 year minimum term passed, in paragraph 43 of the judgment. Similarly, in Mr Stanton’s case the judge answered the criticism convincingly in paragraph 46. I have quoted both these paragraphs above.

We have declined to give permission to advance ground (5), but it suffices to say, for the purposes of the present ground, that I found nothing in the material presented (on ground (5)), in the cases of these appellants, to show that national shortage of Approved Premises places had any real effect upon the period for which they had been kept waiting before release.

As noted, in each case, enquiries were made before the Board’s hearing about the availability of places at MH. Each appellant’s case had local aspects which dictated a preference for these particular Approved Premises to be specified in any licence conditions. Residence at those premises was beneficial for rehabilitation close to family and, in Mr Stanton’s case, in view of his work with the “Invisible Walls” organisation operating in the local area. Enquiries were made about accommodation at other premises, but without success. The Board was fully aware of the reality of the situation in these cases and tailored their release direction decisions accordingly.

Having dealt with the principal submissions on ground 1(b), it seems to me best to go directly to the application for permission to appeal on ground (5).

The judge rejected the appellants’ argument that the duty arose in this case: see paragraphs 62 to 71 of her judgment. She also rejected the contention that, if there was such a duty, it had been broken in the case of either appellant: see paragraphs 72 to 79. The judge refused permission to appeal on these points.

Under CPR 52.3(6), applying to appeals in which the Appellant’s Notice (as here) was issued before 3 October 2016, this court “may” give permission to appeal where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. (The rule is now CPR 52.6 but there has been no material revision for present purposes).

It is clear that the rule confers a discretion upon the court. As the notes to Civil Procedure 2017 indicate (at 52x.3.7, p.1888) this is a discretion to be exercised in accordance with the overriding objective. In this respect, I have had particular regard, on this point, to CPR 1(b), (c), (d) and (e).

In reviewing the judge’s decision under ground 1(b), I have already indicated that the court’s task there required it to give considerable deference to the judge, because of the larger opportunity for consideration of the evidence that she had in dealing with the case. The same would be true even more clearly, if the court were to hear an appeal on this separate ground. It is quite apparent from paragraphs 72 and following of the judgment that the judge reached her decision after considering a substantial amount of evidential material. The conclusions that she reached after that exercise do not seem to me (with respect) to be obviously wrong. Indeed, they seem persuasive for the reasons given.

In view of the cogency of the judge’s reasoning on this issue, I did not think that the breach of a hypothetical “James” duty added anything of substance to the decision on ground 1(b). It did not suggest to me that any question of national resources had any impact at all on the particular circumstances of these individual appellants. Thus, all relevant questions could be decided on ground 1(b).

Given the inadequacy of time estimated for both pre-reading and for the hearing of the appeal and the application, if we were to have given permission to appeal, a new hearing would have had to be fixed. Moreover, the appellants had intimated an application to adduce fresh evidence (not before the judge and not considered by us) on this issue, an application which no doubt would have been contested by the respondent.

These matters led me to the view that it would not be consistent with the overriding objective for permission to appeal to be given on ground (5). I, therefore, agreed with my Lords that permission should be refused.

If there was no good reason to give permission on ground (5), there could be no point in an appeal on ground (4) (whether the relevant duty arose at all in the circumstances of these cases). Accordingly, it was my view that permission to appeal on ground (4) should also be refused.

I turn to grounds (2) and (3).

I can conveniently give my reasons for refusing permission to appeal on these grounds together. It will be recalled that the contentions for the appellants are that the directions for release given by the Parole Board decisions broke the “chain of causation” between the appellants’ continued detention and the original sentences passed upon them (ground (2)) and that a detention which is ended by the executive making available places at Approved Premises is incompatible with the requirement that judicial control over detention must be retained (ground (3)).

In my judgment, neither of these grounds were ones upon which permission to appeal should be granted, given the view I had taken on the proper construction of CSA 1997 s.28 and the proper understanding of the decisions of the Board in each case. I considered that the points here argued were decided against the appellants by the reasons for rejecting the arguments raised on their behalf on ground 1(a).

Looking at ground (2), the appellants were being detained under the original sentences. The Board decided judicially the conditions upon which it would be safe to release the appellants. Without the conditions, there would have been no release. Until those conditions could be achieved, therefore, (provided that that was within a reasonable timeframe) there could be no breach in the relevant “chain of causation”.

Equally, on ground (3), it was not the executive determining when detention should end in these cases. The detention would end when, in accordance with the Board’s judicial decision, the appellants could be released consistently with the protection of the public.

In essence, I considered that Mr Flanagan was right in his submission to us that, if the appellants failed on ground (1), there could be no purpose in granting permission to appeal on either grounds (2) or (3). For those reasons, therefore, I concluded that permission to appeal should be refused on those grounds also.

Conclusion

I take the view, therefore, that the appeal should be dismissed and I decided, for the reasons given above, that the application for permission to appeal on further grounds should be refused.

I agree.

I also agree.