Dean Dobson, R (on the application of) v Secretary of State for Justice

This is a case about the procedural propriety and substantive justification for an adverse appeal decision concerning Release on Temporary Licence (“ROTL”). It is a case in which the judicial review Court has to decide disputed issues of fact on documentary evidence. There are also issues about whether defaults by the Defendant should in principle be reflected in any costs order, whether a delay objection can be raised at the substantive judicial review hearing, and whether “anxious scrutiny” applies.

ROTL is the subject of a policy (the “Policy”) entitled “Release on Temporary Licence Policy Framework” implemented on 16 May 2019, replacing an earlier Prison Service Instruction (PSI 13/2015). The version of the Policy relied on by both parties in these proceedings was reissued on 17 August 2021. It explains that ROTL “facilitates the rehabilitation of offenders, by helping to prepare them for resettlement in the community once they are released” and is “intended … to reduce reoffending in the long term”. The “policy outcomes” are described as including that offenders granted ROTL “will benefit from resettlement opportunities which in turn will safely prepare them for permanent release back into the community”, and that offenders eligible for ROTL “will continue to undergo a thorough risk assessment”, with ROTL “applied consistently and fairly and in a way which supports the resettlement of the prisoner, while ensuring the protection of the public remains central to the process”. I will return later to certain procedural duties and entitlements under the Policy (§§45-50 below). The test for ROTL is identified (see the Policy at §4.1) in Rule 9(4) of the Prison Rules 1999 (SI 1999 No. 78), which provides:

The Claimant is aged 52 and is a prisoner in open conditions at HMP Haverigg. He was convicted in the Crown Court in 2007 of four offences committed in September 2004, January 2006 and May 2006. He was sentenced on 19 April 2007 to an IPP sentence (that is, an Indeterminate Prison Sentence for Public Protection) with a minimum term which was reduced on appeal to 3 years 41 days, together with a Sexual Offender Prevention Order. His minimum term (tariff) expired on 30 May 2010. He seeks judicial review, with the permission of Choudhury J granted on 11 February 2022, of the decision of Deputy Governor (“DG”) Bailey for the Defendant on 8 July 2021. By the impugned decision, DG Bailey rejected the Claimant’s appeal by way of Complaint (30 June 2021) against the decision of Acting Deputy Governor (“ADG”) Woodburn (8 June 2021). ADG Woodburn had declined to approve the Claimant’s ROTL. The Claimant’s case is that DG Bailey’s decision was procedurally flawed and/or unreasonable. The remedy sought is to quash the decision of DG Bailey and remit the matter for reconsideration afresh.

Two straightforward ancillary applications were before the Court. Both parties applied for permission to adduce further witness evidence. The Claimant’s application is to adduce a brief witness statement with exhibits by the Claimant’s solicitor Mr Bellusci, responding to the position taken by the Defendant in raising a delay issue. The Defendant’s application is to adduce a brief witness statement of Ms Fisher, responding to the position taken by the Claimant about DG Bailey’s ‘second-hand’ witness statement description of what happened regarding the provision of documentation in June 2021. Each party sensibly accepts that the application made by the other should be granted, and with no cost consequences. I agreed and announced at the substantive hearing that I would grant both of these applications.

A Recommendation in the Claimant’s case was made by the Parole Board in a reasoned decision on 21 October 2019, concluding as follows:

The Transfer Recommendation was accepted by the Defendant, by a decision dated 3 December 2019 taken by Becca Humphrey of HM Prison & Probation Service (the “Transfer Decision”). The Transfer Decision was headed “Outcome of Parole Board Review” and stated as follows (I have inserted paragraph numbering in square brackets; OPAL is Older Prisoners Activities and Learning):

The Manuscript (handwritten) Version of the appealed decision of ADG Woodburn (8.6.21) completed a set of three documents known collectively as the “ROTL Risk Assessment”. This Trilogy of Documents was: (1) a “Risk Assessment” written by the Prison Offender Manager (“POM”) Carole Smith (updated on 1 June 2021) (§8 below); (2) “Board Recommendations” (dated 21 May 2021) of the ROTL Board (whose members were POM Smith and, as ROTL Board Chair, Senior Probation Officer (“SPO”) Sean Carroll) (§9 below); and then (3) the Manuscript Version of ADG Woodburn’s Decision (8 June 2021) (§10 below).

POM Smith’s Risk Assessment (updated on 1 June 2021) was the first of the Trilogy of Documents. Under a heading “Positive Indicators for ROTL Compliance”, POM Smith said this (Mr Dobson is the Claimant; ETS is Enhanced Thinking Skills; Kaizen is an accredited offender behaviour programme):

The ROTL Board Recommendations (21 May 2021), written by SPO Carroll, were the second in the Trilogy of Documents. They followed a meeting of the ROTL Board (SPO Carroll and POM Smith) with the Claimant on 19 May 2021. In part, they record the Claimant’s position. They read as follows (paragraph numbering has again been added; DD is the Claimant; EBM is Enhanced Behaviour Monitoring; RDR is Resettlement Day Release; ROR is Resettlement Overnight Release; AP is Approved Premises):

As I have explained, the Manuscript Version of ADG Woodburn’s Decision (8.6.21) completed the Trilogy of Documents. It was handwritten by ADG Woodburn into the composite “ROTL Risk Assessment” document (as “page 10 of 13”). It recorded “RDR NOT APPROVED” and “ROR NOT APPROVED”. In a box headed “Decision” and “Assessment by Authorising Manager”, ADG Woodburn wrote:

The ROTL Decision Notice was completed by Ms Harrison the Case Administrator (on 14 June 2021), based on the Manuscript Version of ADG Woodburn’s Decision (8.6.21). The ROTL Decision Notice, framed as addressed to the Claimant, reads:

One of the reports available to the ROTL Board, to ADG Woodburn and (on the subsequent appeal) to DG Bailey, was the Report of the Community Offender Manager (“COM”) Felicity Heald dated 25 March 2021. COM Heald’s Report identified the nature of the ROTLs being applied for and the appropriate non-standard licence conditions. It then recorded that:

It was common ground at the hearing before me that COM Heald and POM Smith, collectively, constitute the relevant “offender manager or supervisor” being described in the Transfer Decision (§6 above) (at para [8]) as having the responsibility “to identify relevant interventions for you as part of your sentence plan in order to address your risk of harm and risk of reoffending”.

A further report available to the ROTL Board, to ADG Woodburn and to DG Bailey was the “Psychological Risk Assessment” Report by Forensic Psychologist Kirsty Bain, for HM Prison & Probation Service, dated 25 May 2021 (and disclosed to the Claimant on that date). In its “Summary of recommendations and outcome”, Kirsty Bain’s Report said this (RSVP is the Risk for Sexual Violence Protocol):

Another report available to the ROTL Board, to ADG Woodburn and to DG Bailey was the “EBM Case File Review by Psychology”. This was a desktop review of previous relevant documents. It contained sections on “current institutional behaviour”, “overview of relevant factors linked to offending” and “responsivity issues/other factors potentially impacting on this”. In the latter section, the writer makes reference to the Psychological Risk Assessment report dated 31 October 2017 written by Psychologist Michele Unwin, attributing to Ms Unwin observations which:

The decision of ADG Woodburn was discussed with the Claimant on 16 June 2021 at a meeting with SPO Carroll and POM Smith. The Claimant made what – it is accepted – were his contemporaneous manuscript notes of that meeting. He recorded the time of the meeting and who was present. His notes recorded, in quotation marks, the Claimant being told this about ADG Woodburn’s decision:

“haven’t addressed risk factors”

“lack of insight into offending”

The Claimant’s contemporaneous manuscript notes also record that he was advised to send a Complaint Form (known as “COMP1”) to the OMU (Offender Management Unit) addressed to DG Bailey, in order to obtain a copy of the ROTL “Board Assessment”. The evidence filed on behalf of the Defendant explains that this phrase – “Board Assessment” – would have been understood by SPO Carroll and POM Smith and within the OMU to mean the Trilogy of Documents comprising the “ROTL Risk Assessment”.

There are contemporaneous documents before the Court which assist in identifying events in June and July 2021. They place the meeting of 16 June 2021 and other aspects in a documented setting. They include the following, in date sequence. (1) A COMP1 Complaint by the Claimant (7 June 2021) concerning the delays in obtaining the Governor’s ROTL decision following the ROTL Board meeting on 19 May 2021. (2) the Manuscript Version (8 June 2021) of ADG Woodburn’s Decision (§10 above), completing the Trilogy of Documents (§7 above) comprising the ROTL Risk Assessment. (3) The ROTL Decision Notice (14 June 2021), being the typed version of ADG Woodburn’s reasons, completed by Case Administrator Carolyn Harrison (§11 above). (4) A Response (14 June 2021) written by OMU Hub Manager Christine Fisher, responding to the COMP1 Complaint of 7 June 2021, and stating: “Unfortunately your application for ROTL has not been approved. Gov Woodburn has concerns in relation to ROTL, which your POM will discuss with you.” (5) The Claimant’s manuscript notes of the meeting on 16 June 2021 (§16 above). (6) A letter of 16 June 2021 from the Claimant to his solicitors which told them that: (a) at the meeting on 16 June 2021 SPO Carroll “read out a short passage by Gov Woodburn which ultimately said ‘haven’t addressed risk factors’ and ‘lack of insight into offending’”; and (b) the Claimant was making a Complaint (COMP1) to DG Bailey requesting a copy of the ROTL Board Assessment, because “Sean Carroll said I should do this as I am not entitled to one ordinarily”. (7) A COMP1 Complaint by the Claimant (17 June 2021) to DG Bailey which stated: “After being refused all ROTLs by Gov Woodburn I have been advised to send this COMP1 to you by Sean Carroll. Please provide me with a copy of the ROTL Board Assessment I sat on 19/5/21. This is a matter of urgency and was also requested by my solicitor”. (8) A Response (25 June 2021) to the Complaint (17 June 2021), written by Ms Fisher, stating: “I will generate copies of the relevant paperwork, and call you up to OMU early next week to collect it. Please use the Complaint process in the first instance to appeal your ROTL Refusal, as I am not aware that you have done this yet. Your appeal will be considered by the Gov, who will review all of the Board papers.… I will call you up to collect copies of the paperwork you have requested”. (9) A COMP1 Complaint (30 June 2021) constituting the Claimant’s “appeal” against the decision of ADG Woodburn (§18 below). (10) The Response (8 July 2021) by DG Bailey to the Complaint of 30 June 2021 (§19 below), rejecting the Claimant’s appeal, which is the impugned decision in this judicial review claim.

The Claimant’s appeal in his COMP1 of 30 June 2021 was in the following terms:

DG Bailey’s Response on 8 July 2021, which is the impugned decision in this claim for judicial review, rejected the Claimant’s appeal in the following terms (with numbered paragraphs inserted):

A pre-action Letter Before Claim dated 7 September 2021 from the Claimant’s solicitors included this:

There was no response by the Defendant to the Letter before Claim. There was no Acknowledgment of Service (“AOS”) filed by the Defendant at the permission stage. As Choudhury J recorded in his Order on 19 February 2022, this was despite the Defendant “being encouraged to do so by letter dated 30 December 2021”. That letter was written by the Court. The papers filed with the Court on behalf of the Claimant in the judicial review proceedings included the following: the Response of DG Bailey (8 July 2021), the COMP1 Complaint of 17 June 2021, the Claimant’s letter to his solicitors dated 16 June 2021, the Claimant’s manuscript notes of the meeting on 16 June 2021, Kirsty Bain’s report of 25 May 2021, and a parole dossier including the earlier Report of COM Heald (11 November 2020). The Defendant’s first response to these judicial review proceedings was in Detailed Grounds of Resistance (“DGR”) dated 29 July 2022, accompanied by evidence; preceded on 13 July 2022 by an application for an extension of time. The indexed “Defendant’s Bundle” of relevant documents included the “ROTL Risk Assessment” (the Trilogy of Documents); and “Other Papers in the Claimant’s ROTL file” including COM Heald’s Report of 25 March 2021, and the ROTL Decision Notice of ADG Woodburn dated 14 June 2021. As I have mentioned, the Defendant’s DGR and evidence (29 July 2022) were preceded by an application dated 13 July 2022 for an extension of time to rely on them and for permission to participate in the substantive hearing by written and oral submissions. That, then, became the first issue with which I had to deal.

As I have also mentioned, Choudhury J recorded in his Order granting permission for judicial review that the Defendant had not lodged any AOS, despite being encouraged to do so by letter from the Court dated 30 December 2021. He went on to record that:

The Defendant’s application for an extension of time, and permission to be heard, explains the Defendant’s position as follows: that GLD was served with a hardcopy bundle including the sealed claim form on 3 November 2021, at the correct address for physical service of court papers on GLD; that the hardcopy bundle was scanned into the system but no steps were taken to open a new file; that no record was found of having received the Order of Choudhury J or the letter of 30 December 2021 referred to in that Order; that GLD accepts that (given that no file had been opened for the conduct of this claim) this “probably” represented a further administrative error; that it was on 5 July 2022 that senior staff became aware of the existence of the claim and a new file was opened immediately, being allocated to a case officer two days later; and that the absence of any allocation to a lawyer before that time was due to administrative oversight within GLD. An apology has, rightly, been provided: to the Court; to the Claimant; and to the Claimant’s legal representatives. The Defendant’s application to participate was deferred for consideration at the substantive hearing. The application contained the submission that the Court would be ‘better placed to explore the issues raised by the proceedings were the Court able to consider the DGR together with witness evidence on behalf of the Defendant’. The application also said that granting it should not cause material “prejudice” to the Claimant or the timetable for the hearing.

Mr Bimmler for the Claimant made clear that whilst the application was – very fairly and sensibly – not resisted, that was subject only to the “caveat” that it would, in principle, be appropriate for the Defendant’s defaults to be reflected when the Court comes to design the appropriate order for costs having decided the issues in the case. He and Mr Pritchard made submissions at the level of principle as to whether a modified Court Order would be appropriate. I was not at that stage making any costs order, and none was being sought: the appropriate modified order would depend on the outcome. But it was appropriate, and I was anxious, to consider, at the level of principle: whether possible options relating to modified costs orders would constitute an appropriate (and a sufficient) response to accompany an extension of time for the Defendant and permission to participate through written and oral submissions at the hearing.

Mr Pritchard’s submission was that, in principle, it would not be appropriate for any modified costs order to be made, in the absence of any prejudice to the Claimant and in all the circumstances.

I cannot agree. In my judgment, Mr Bimmler’s “caveat” is proper in principle and appropriate in the circumstances of this case. I explained at the hearing that I would grant the Defendant the extension of time and permission to participate in the hearing, but that in doing so I accepted, in principle, the appropriateness of reflecting the Defendant’s defaults through a modified costs order. I explained that I would revisit at the end of the case, against that position of principle, the question of what costs order – in light of the Court’s judgment – was appropriate and proportionate. The defaults were in not responding to a Letter before Claim, not engaging with an AOS at the permission stage, not engaging despite having been encouraged by letter from the Court to do so, not filing DGR and evidence within the prescribed timeframe in the CPR and a Court Order, and not making an application for an extension of time until a substantial period after the deadline had passed. These were all regrettable. The principles of “procedural rigour” emphasised by the Courts, explained in the Administrative Court Judicial Review Guide 2022 at §2, apply even-handedly to all parties in judicial review proceedings. The Court will always be assisted, in the interests of justice and in the public interest, in having full and balanced submissions and materials from all parties, which it is able to consider. That is a “given”. But it is not a “late entry pass”. Nor is the lack of identifiable “prejudice”. Furthermore, the wider interests of justice and the public interest require that the right ‘message’ is given, understood and reinforced. I am quite sure, in the present case, that the materials belatedly disclosed by the Defendant – many of which I have already described in this judgment – did and do need to be before the Court. I am satisfied that the Court should read and hear the Secretary of State’s response to this claim before making any decision. That is so, notwithstanding that no remedy in this case would involve this Court directing the Claimant’s ROTL (the remedy would be restricted to quashing and remitting). That means there is no risk of the public being somehow endangered by the Court having a visibility gap. I was and remain satisfied that it will, in principle, be appropriate for the Court to be looking for an appropriate and proportionate modified costs order so as to mark the Court’s disapproval of the litany of Defendant defaults.

Mr Pritchard for the Defendant submits that this claim should be dismissed on grounds of delay. He accepts that there is a body of case law which narrows the potential delay objections at the substantive hearing, where permission for judicial review had been granted, to pose this question alone: whether it is appropriate to refuse a remedy (relief) on grounds of “undue delay” because relief would be “likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration” (section 31(6)(b) of the Senior Courts Act 1981). Mr Pritchard accepts that, if that is the question, his delay objection cannot prevail. He accepts that the question of delay could have been raised by the Defendant at the permission stage, and was not. His answer is that there is a “jurisdictional” point because, if he is right, the claim was “filed” later than “three months after the grounds to make the claim first arose” in breach of CPR 54.5(1)(b), and there has never been an extension of time. He emphasises that section 31(6) is, by section 31(7), “without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made”, and that CPR 54.5(1)(b) is such a “rule”. He says that the body of case law which narrows the delay issue at a substantive hearing is distinguishable because it is concerned only with (i) section 31(6)(b) and/or (ii) a CPR54.5 question of promptness within three months (rather than filing the claim outside three months) and/or (iii) a situation where an extension of time has been granted by the permission-stage judge. Turning to the facts of the present case, Mr Pritchard submits as follows. There was a breach of the “three months” provision in CPR54.5(1)(b). The Claimant’s solicitors sent an email to the Court on 7 October 2021 (within three months) attaching the judicial review bundle and seeking to commence judicial review proceedings. But that was no more than “unilateral” action constituting an “attempt” to “deliver” the papers to the Court (so as to constitute the “filing” of the claim: CPR 2.3(1)). “Unilateral” action is insufficient: see Croke v Secretary of State for Communities and Local Government [2016] EWHC 2484 (Admin) [2017] PTSR 116 §§23-24. An “attempt” is insufficient. An extension of time is necessary. None has ever been granted. Moreover, an extension of time would be inappropriate. The appropriate “criteria” for such an extension are those identified in Riverside Truck Rental Ltd v Lancashire County Council [2020] EWHC 1018 (TCC) at §101: whether there was a “reasonable objective excuse” for the claim having been commenced out of time; the presence or absence of prejudice to the defendant and third parties; and whether the public interest requires that the claim be allowed to proceed. An extension of time is inappropriate having regard to those principles; or alternatively applying the approach described in the Administrative Court Judicial Review Guide 2022 at §6.4.4.2 and fn.66. The inaptness of an extension of time is because: there was no excuse for the default; the consequences of the Claimant’s solicitors’ actions were foreseeable; and the length of time between 7 and 27 October 2021 (when the claim was finally properly issued) is a significant one. That is the delay objection.

The documents before the Court tell the following story. (1) The grounds for judicial review in the Core Bundle are dated 6 October 2021. The judicial review Claim Form (Form N461), which precedes them in the Bundle, has a box to be filled out by the Administrative Court to record: “date filed”. But that box has been left blank. The Form does bear the court stamp and seal, with a date 29 October 2021. (2) There is an email from the Claimant’s solicitors dated 7 October 2021 timed at 14:45 to “Administrative Court office Immediates”. It is supported by a printout record of “sent items”. The email is headed “judicial review claim: new issue”. It states “please find attached an N461 for a new claim for … judicial review” and continues “please take the issue fee £154 from our PBA account…”. The printed version of the email shows that there was an attachment to that email: a “pdf” file entitled “Dobson bundle”. (3) A follow-up email, tagged to the same email of 7 October 2021, and itself supported by a printout record of sent items, was sent by the solicitors on 11 October 2021. It states: “this claim was issued on 7.10.21. However we did not have a response. Please advise”. That email continues by repeating the same text as the previous email. The email print out identifies as an attachment a “pdf” bundle with the same file name as before. (4) A computerised record of items sent by “recorded delivery” contains an entry dated 13 October 2021 with a reference number for an item sent by recorded delivery to the Administrative Court. (5) A further email dated 27 October 2021, again supported by a printout record of sent items, repeats the same contents of the two earlier emails and again shows the “Dobson bundle” as a “pdf” was an attachment. The witness statement of the Claimant’s solicitor Mr Bellusci adds this, by way of explanation: (a) a hardcopy bundle was sent by recorded delivery on 13 October 2021 because a ‘bounceback’ email had been received from the Court on 12 October 2021 recording that the email of 11 October 2021 had “not been received” due to the “size of the attachment”; (b) the email of 27 October 2021 was sent because no sealed Claim Form had been issued by the Court even after the hardcopy bundle was sent on 13 October 2021.

Mr Pritchard accepts that there is no basis on which he can invite this Court to go behind either the contemporaneous documentary evidence or the witness evidence of Mr Bellusci. He does not submit that a similar ‘bounceback’ email was received in relation to the 7 October 2021 email as was received in relation to the 11 October 2021 email. He does not submit that the Claimant’s solicitors were failing to send emails to the correct email address for the Court; nor that they failed to use the correct postal address for the Court when sending the hardcopy bundle. Mr Pritchard does submit that the appropriate inference of fact is that the pdf Bundle emailed on 7 October 2021 was also too large in size to be received by the court system, just like the bundle sent on 11 October 2021. He says the Bundle emailed on 27 October 2021 – whatever its size – can be inferred to have been received by the Court, which explains the stamp date on the claim of 29 October 2020. Mr Pritchard submits that the correct inference of fact is that the claim form was never “delivered”, by being actually “received” by the Court until the email of 27 October 2021. Everything else was by way of “unilateral attempt”.

I cannot accept the Defendant’s delay objection. That is so, even if it were correct that the question is open to the Defendant at a substantive hearing, even if it were correct that the issue is a “jurisdictional” question which the Defendant is entitled to raise and the Court needs to decide, even if an extension of time is now needed, and even if the test for an extension is in Riverside §101 (reasonable objective excuse etc). The delay point would still, in my judgment, be a bad one. There is a clear, evidenced picture of action on the part of the Claimant’s solicitor, within the three month period. That was followed up, properly and persistently. The single email bounceback response from the Court that was received led to prompt further action. The Claimant’s solicitors used a correct email address for the Court and a correct postal address. Whether or not the bundle only finally “got through” to the Court by the email of 27 October 2021, none of that viewed fairly – including when considered from the perspective of reasonable objective excusability – involved an identifiable default of the Claimant solicitor. Nor is the period in question (at its outer limit the 20 days to 27 October 2021) substantial. There was no conceivable prejudice to the Defendant. The prospect of the claim for judicial review had been clearly ventilated in the Letter Before Claim on 7 September 2021. The Defendant had not responded to that letter. Any inactivity or delay on the part of the Claimant’s representatives pales into insignificance viewed alongside the repeated defaults of the Defendant, who stands in a large default greenhouse throwing a small delay stone. If the impugned decision is lawful, the claim will fail on its legal merits. I cannot accept – in a context touching on individual liberty – that if this claim would or may succeed on its legal merits it should be dismissed on these delay grounds. This is a substantive hearing where all arguments and evidence are before the Court, and where there was rightly no suggestion of hardship, prejudice or detriment to good administration. In my judgment, for the delay argument to prevail to avoid the case being decided on its legal merits would be contrary to the public interest, good administration and the interests of justice. If an extension of time were needed, I would grant it without hesitation. That is, of itself, the end of the delay objection. But I will deal with the other key topics on which Mr Pritchard relied.

I do not accept that the test in Riverside at §101 was providing a set of “criteria” for an “extension of time” in every judicial review case. In that case, HHJ Eyre QC (as he then was) made very clear, under a heading at §96 that he was discussing the approach to be taken when considering an application to extend time for a judicial review challenge “to a procurement decision”. He made very clear at §98 that an application for an extension of time in such a case was to be considered in the light of the principles governing the extension of time for judicial review claims generally “albeit doing so in the context of a procurement process where there is a particular public interest in the speedy resolution of disputes”. He made clear at §101 itself that he was describing potentially relevant considerations “for current purposes”, reflecting the contours of the facts of the individual case before him as well as the context of the procurement process, and having prefaced his description at §100 by saying he was going to set out considerations of potential relevance “in the current case”. That was after saying that “a wide range of factors are potentially relevant to the question of whether there should be an extension of time in any particular judicial review claim”. He had also recognised (see §100), albeit not as a narrow criterion, the observation of Woolf LJ in R (Croydon LBC) v Commissioner of Local Administration [1989] 1 All ER 1033 (at 1046g) that: although it is always essential to scrutinise with care any delay in making a claim for judicial review, the delay rules are “not intended to be applied in a technical manner” which would “deprive a litigant who has behaved sensibly and reasonably to relief to which they would otherwise be entitled”, “at least as long as prejudice has not been caused”. In my judgment, the Administrative Court Judicial Review Guide 2022 at §6.4.4.2 together with fn.66 stands as a helpful guide: “In considering whether to grant an extension of time the Court will consider all the circumstances, including whether an adequate explanation has been given for the delay and whether an extension will cause substantial hardship or prejudice to the defendant or any other party or be detrimental to good administration” (§6.4.4.2); “See Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 at §38: “Here it is important to emphasise that the statutory test is not one of good reason for delay but the broader test of good reason for extending time. This will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest”” (fn.66).

Nor do I accept the applicability – to the question whether a judicial review claim has been “filed” – of §§23-24 of the Croke case. As I read those passages, and the way in which the Court was distinguishing the earlier authority of Van Aken v Camden LBC [2002] EWCA Civ 1724 [2003] 1 WLR 684, there was a difference between the language of “filing” (Van Aken) and the phrase “the court issues a claim form” (Croke); and it was by reference to the latter that “making an application” was “not a unilateral act”. The Court went on to find, in any event, that there was not even any relevant “unilateral act” since the claimant had not left the claim form at the right place by the right date. Croke does not, in my judgment, provide an answer to the phrase to which Mr Pritchard’s arguments were directed: the “claim form must be filed” in CPR 54.5(1). But nor in any event do I accept that the email of 7 October 2021 with its attached Bundle – an email sent within the “3 months” in CPR 54.5(1) – constituted a failed, attempted, unilateral act. I do not consider it appropriate or justifiable to draw the adverse inference that this email was not “received by the Court” into the Court’s email inbox. There is no evidence that a ‘bounceback’ email was received on that occasion and no basis to infer that one was. The Defendant accepts that the later email of 27 October 2021, with its own attached Bundle, was “received by the Court” into its email inbox. Nor for that matter would I accept that the hardcopy Bundle sent by recorded delivery on 13 October 2021 constituted a failed, attempted, unilateral act.

Nor, in any event, was I persuaded by Mr Pritchard that the delay point is one which the Defendant is entitled to take at a substantive hearing, at least in the circumstances of the present case; still less that it is a “jurisdictional” point which the Court is required to consider. In my judgment, it was for the Defendant to make this good. It failed to do so. None of the relevant case law was cited at the hearing. I am aware of the passage in the White Book 2022 at §54.5.1, citing R v Dairy Produce Quota Tribunal for England and Wales Ex p Caswell [1990] 2 AC 738, R v Criminal Injuries Compensation Board Ex p A [1999] 2 AC 330 and R (Lichfield Securities Ltd) v Lichfield DC [2001] EWCA Civ 304. There are a number of different ‘moving parts’ which would inform the analysis. There is the distinction between the permission stage and the substantive stage. There is the distinction between the statutory provision and the rule. There is the distinction between promptness within three months and filing the claim outside three months. There is the distinction between a permission-stage decision which expressly considers delay and one which does not. There is the distinction between a permission-stage decision which expressly grants any necessary extension of time and one which does not. It would be quite wrong in my judgment, in the absence of proper argument which identifies and addresses the relevant line of authorities, for the Defendant to prevail on this entitlement, or this “jurisdictional” point. It is sufficient to make three observations. First, that the statutory provision and the relevant rule have always, so far as I have understood it, been interpreted together with a congruent meaning. Second, that the clear policy of the law – as I see it – that delay points, beyond those within section 31(6)(b) of the 1981 Act, should in principle be raised by a Defendant or Interested Party at the permission stage, would be undermined if Mr Pritchard were correct. Third, that Mr Pritchard emailed the Court after the hearing to provide a copy of Ex p A and a Northern Ireland case Turkington v Northern Ireland Retired Police Officers Association for Judicial Review [2014] NIQB 58. I did not direct any further hearing or further round of submissions. The time for arguing the point with the relevant authorities has passed. Mr Pritchard did not in any event submit that these authorities took him home. Indeed, he accepts that in Turkington there was before the Court, at the substantive hearing, an application to set aside the grant of permission for judicial review on grounds of delay (§57). That was not the position in the present case. Nor could it be, in circumstances where the Defendant’s own default is what led to the lost opportunity of raising delay at the permission stage. In all the circumstances, and for all these reasons, the Defendant’s delay objection fails.

It is common ground in the present case that the Court not only can, but should, determine the disputed questions of fact as to whether and when the Claimant received (i) the ROTL Decision Notice completed by Ms Harrison (14 June 2021) and (ii) the ROTL Risk Assessment comprising the Trilogy of Documents completed by the Manuscript Version of ADG Woodburn’s Decision (8 June 2021). It was common ground that I should decide those disputed questions of fact, on the documentary evidence before the Court, and by drawing appropriate inferences. Neither party made any application to call a witness or cross-examine any individual.

The judicial review Court can take the need to resolve disputed facts in its stride. It is well-established that the Court on judicial review may need to make findings of fact, whether with or without oral evidence, where to do so is key to deciding whether a ground for judicial review is made out. A paradigm of such a need is when resolving a disputed fact is key to deciding whether there has been a breach of a duty of procedural fairness (or propriety). All of that was common ground in the present case but I will interpose to add some references to recent authority: R (Talpada) v SSHD [2018] EWCA Civ 841 at §2 (“If there is a dispute of fact, and it is relevant to the legal issues which arise in a claim for judicial review, the court usually proceeds on written evidence. Since the burden of proof is usually on the person who asserts a fact to be true, if that burden is not discharged, the court will proceed on the basis that the fact has not been proved”); R (Matthews) v City of York Council [2018] EWHC 2102 (Admin) at §19 (judicial review Court resolving a factual dispute as to whether an email was received); R (Mackay) v Parole Board [2019] EWHC 1178 (Admin) at §§44-45 (judicial review Court concluding that the parole board’s factual assertion, regarding the claimant’s conduct at a hearing, was not supported by contemporaneous notes or witness statements); R (Olabinjo) v Westminster Magistrates Court [2020] EWHC 1093 (Admin) at §4 (“where a proper inference can be drawn from the available materials, this court can make findings of fact even in proceedings for judicial review”).

Mr Bimmler for the Claimant invites findings of fact, on the evidence, that at no stage prior to the decision of DG Bailey on 8 July 2021 was the Claimant provided with (i) the ROTL Decision Notice or (ii) the ROTL Risk Assessment (the Trilogy of Documents) requested by COMP1 Complaint on 17 June 2021. Mr Pritchard for the Defendant invites findings of fact, on the evidence, that (i) the ROTL Decision Notice was handed to the Claimant at the meeting with POM Smith and SPO Carroll on 16 June 2021, and (ii) the ROTL Risk Assessment (the Trilogy of Documents, including the Manuscript Version of ADG Woodburn’s Decision) was provided to the Claimant through the prison’s internal post system by 30 June 2021 when he made his COMP1 Complaint constituting his appeal.

I will set out here the key points relied on by Mr Pritchard – or in any event supportive of his position – as I saw them:

On the disputed factual issues, I cannot accept the submissions on behalf of the Defendant. I find, as facts, that the Claimant was at no stage prior to the decision of DG Bailey on 8 July 2021 provided with (i) the ROTL Decision Notice or (ii) the Risk Assessment (the Trilogy of Documents) requested by COMP1 Complaint on 17 June 2021. I find, as a fact, that the first time that those materials were provided to the Claimant was in the Defendant’s bundle in these judicial review proceedings filed with the Witness Statement of DG Bailey dated 28 July 2022, provided with the DGR on 29 July 2022. That was nearly 14 months after the decision of ADG Woodburn, notwithstanding the entitlement (to which I will return) to the written reasons at the time; and nearly 14 months after the request for the ROTL “Board Assessment” on 17 June 2021 notwithstanding an entitlement (to which I will also return) to those materials (and indeed further materials) on request. It was notwithstanding the Letter Before Claim on 7 September 2021 which stated that these documents had never been received, but which pre-action letter never received a response from the Defendant. It was notwithstanding the claim for judicial review filed and served in October 2021, the Grounds for which made clear that these documents never been received, but which also never received an AOS response from the Defendant.

My reasons for these findings, accepting the submissions of Mr Bimmler, are as follows. I start with the meeting on 16 June 2021 and whether written reasons were handed to the Claimant.

I turn to whether the ROTL Risk Assessment (the Trilogy of Documents, including the Manuscript Version of ADG Woodburn’s Decision) was provided to the Claimant through the prison’s internal post system by 30 June 2021 when the Claimant made his COMP1 Complaint constituting his appeal.

There are three endnotes to this assessment of the factual position. First, it is not said by or on behalf of the Defendant that the documents were supplied at some other intermediate time between 9 July 2021 and the Defendant’s filing of DGR and evidence on 29 July 2022. Secondly, the Defendant’s argument that more direct evidence of the provision of documents to the Claimant in June 2021 cannot be expected after such a lapse of time rings hollow, given the Defendant’s wholesale failure to respond to the Letter Before Claim on 7 September 2021, when the factual points were clearly made and when memories would have been so much fresher than they were in July 2022. Thirdly, it is not said that there is some substantial reason why the prison could not have a record-keeping mechanism to be able to show that documents are provided to a prisoner; especially when they are of such significance as these were.

The two principal issues regarding procedural fairness were formulated as follows in the parties’ Agreed Issues: (1) Was the process by which the Defendant determined the ROTL application unlawful by reason of a failure to provide the Claimant with a written record of the reasons for ADG Woodburn’s decision? (2) Was the process by which the Defendant determined the ROTL application unlawful by reason of a failure to provide the Claimant with specific documents? My answer to both questions is “yes”. In my judgment, DG Bailey’s Impugned Decision (8 July 2021) was vitiated by a material procedural unfairness, because the Claimant had (as I have found on the facts) not been provided with (i) the ROTL Decision Notice (completed by Ms Fisher on 14 June 2021) or (ii) the ROTL Risk Assessment (collated by Ms Fisher in the week commencing 28 June 2021). I will explain why I have arrived at that conclusion, and why the appropriate remedy is to quash the impugned decision.

Mr Pritchard invited my attention to R (X) v Secretary of State for the Home Department [2005] EWHC 1616 (Admin) at §31. That was another judicial review case about ROTL. As the Court explained, the procedure at that time involved (i) a risk assessment, (ii) a recommendation by the ROTL Board, (iii) a decision by the Prison Governor (iv) the provision of reasons and (v) the right to reapply immediately for ROTL indicating why the prisoner was dissatisfied with the reasons. The complaint was that the claimant “was not told the allegations against her and given a chance to respond before ROTL was first refused” (§31). That challenge failed. The Court observed that, although the claimant “was initially told little about the reasons for refusal, there was within quite a short time sufficient information forthcoming to enable her to make the appropriate representations” (§31). This case stands as a contrast. Here, as I will explain below, there are important procedural rights and duties prescribed by Policy. In the context of his right of appeal, the Claimant was not “within quite a short time” given the written reasons, or the ROTL Risk Assessment, to enable him to make “appropriate representations”.

There are good reasons why public law has conventionally approached issues of “procedural fairness” by speaking instead of “procedural impropriety”, and sometimes “due process”. Whatever the expression or label, what is needed is a concept which recognises that a public authority’s legal duties to act in a procedurally fair and proper way may be sourced in a governing legislative, regulatory or policy framework, and not simply in common law duties of procedural fairness. In the present case, as I have indicated and will now explain, important procedural protections are – for good and articulated reasons – expressly addressed in the Policy. Moreover, as Mr Bimmler rightly submits, the Defendant is required by a basic public law duty to act in accordance with the published policy unless good reason has been given for the departure; and no such reasons have been put forward.

The Policy says this at §§2.4 and 2.5:

The Policy says this, in the Chapter on “Requirements” (at §4.3 and §4.16):

The “ROTL Procedure Table” (at §4.19) “sets out the procedure to be followed stage by stage, the actions required, who is involved and which forms/information should be used”. Stage 7 (“Notification of decision to the offender”) requires this (of the “ROTL decision-maker”):

In chapter 6 (“Guidance”) the Policy says this about Stage 7 (§§6.75-6.77) (ACCT is Assessment, Care in Custody & Teamwork):

Chapter 6 continues with this, as to “Disclosure” (§6.78):

As can be seen, and as is relevant to this case, the Policy is very clear about two key things. First, the requirement, and its importance, of ensuring that the written reasons are provided. Second, the requirement, and its importance, of ensuring that the information that has been taken into account in reaching the ROTL decision must be disclosed to the prisoner on request. There is no question of any of the §6.78 derogations (or associated markings) applying in the present case.

At the meeting with SPO Carroll and POM Smith (16.6.21) the Claimant was given a verbal description of the reasons for ADG Woodburn’s decision (8.6.21), which description he recorded in quotation marks in his contemporaneous notes of that meeting (§16 above). The Claimant was, moreover, aware of the fact that POM Smith was supporting ROTL and that the ROTL Board had recommended ROTL. But he was not provided with ADG Woodburn’s written reasons, nor with the ROTL Risk Assessment. These were his procedural entitlements, denied. They were the Defendant’s procedural duties, breached. This was procedurally unfair. It was a procedural impropriety. It constitutes a clear vitiating flaw in public law.

And it matters. I cannot accept that what the Claimant was told, and knew, served to place him in substance in materially the same position as he would have been in, had he instead been provided with ADG Woodburn’s written reasons and the ROTL Risk Assessment. In my judgment, the Court should be slow to conclude that procedural propriety – contextually applicable standards of procedural justice – does not ‘really’ need the disclosure to the prisoner of the written reasons; or does not ‘really’ need disclosure of the requested documents which were taken into account; or that it does not ‘really’ matter when these standards are breached. As has been seen, the Policy very clearly identifies duties to provide those materials, procedural entitlements on the part of the affected individual offender, and good reasons for those duties and entitlements. The virtues of providing these materials plainly include the significance, in principle, of the individual having those materials at the time of being able to make informed representations when invoking the right of appeal. The duties and entitlements matter, in achieving requisite standards of procedural propriety, due process, procedural fairness.

In the present case, both POM Smith and SPO Carroll at the meeting on 8 June 2021 were advising the Claimant that he should take the step of requesting the ROTL “Board Assessment”. They would have been aware of the Trilogy of Documents which comprised that ROTL Risk Assessment. They had seen the documents. They had written two of those documents. They knew that the Claimant was aware of their support, as expressed in those two documents. But they thought he should have the documents themselves. No doubt that was so he could see the detail, make points arising from them, and discuss them with his solicitors. It is clear, moreover, that POM Smith and SPO Carroll had in mind the exercise by the Claimant of his right of appeal. The letter (16.6.21) from the Claimant to his solicitors records that:

I readily accept that at common law there is a requirement of ‘materiality’ which features in the operation of grounds for judicial review, including procedural unfairness (or procedural impropriety). Judicial review is not concerned with a set of technical ladders for claimants and technical snakes for defendant public authorities. It is concerned with principled standards which matter. Judicial review is sometimes described as a ‘discretionary’ remedy. The judicial review Court is not attracted to arid technical debate. It is astute to ask questions about utility – alongside questions about futility – so that a claim obviously lacking any substance or impact can properly be denied the remedies of judicial review. The common law’s carefully circumscribed materiality test is that of “inevitability”. In examining the suggested public law error, it asks whether the Court can be satisfied that the public authority’s decision would “inevitably” have been the same, or would “inevitably” now be the same if revisited.

As to the common law, Spencer J really said it all in R (Grinham) v Parole Board [2020] EWHC 2140 (Admin) at §§52-53:

This common law materiality principle, like some other common law principles of judicial review, has a statutory overlay, in section 31 of the Senior Courts Act 1981. The formulation in section 31(2A) is the “highly likely: not substantially different” (HL:NSD) test. There is a constitutional dimension to the way in which that overlay is to be handled, where the common law has identified a principled approach as being reflective of what the rule of law requires. And one particular problem with a ‘materiality’ objection in the present case – at common law or in the HL:NSD test – is that the Policy embeds received procedural entitlement as an express value of itself (procedural justice): see Policy §§2.4 and 6.77 (§48 above). In that sense, delivery of the entitlement can be said to be a key part of a prescribed “outcome”, which would necessarily have been “different”. For the purposes of the present case, I can put all of that to one side. I will take materiality and HL:NSD at their most generous to the Defendant. However, having done so, I am satisfied that neither common law nor the statutory materiality test could justify the refusal of judicial review on the facts and in the circumstances of the present case.

I return to the question of non-provision of written reasons for ADG Woodburn’s Decision. I accept that the contents of the Manuscript Version of the reasons of ADG Woodburn (completing the Trilogy of Documents in the ROTL Risk Assessment) was in substance the same as the ROTL Decision Notice. I accept that, in circumstances where the Claimant was advised that he could appeal by COMP1 Complaint, either version of those written reasons would have been sufficient in the present case, had they been provided so as to inform his appeal. I also accept that, if the Claimant’s contemporaneous notes of the meeting on 16 June 2021 had involved him writing down in quotations – having been read out in full and at dictation speed – the entirety of the three bullet points in the written reasons of ADG Woodburn, there could have been no materiality in the ‘no written reasons’ aspect of the procedural unfairness ground of challenge. All of these are examples which show how ‘materiality’ could operate.

I am unable to accept Mr Pritchard’s submission that, because the Claimant was able to write down the two quotes in his contemporaneous meeting notes of 16 June 2021 and replicate them in his COMP1 Complaint of 30 June 2021 seeking to appeal, this shows the Claimant had been given the relevant substance of the reasons for ADG Woodburn’s decision of 8 June 2021. I accept that what SPO Carroll and POM Smith communicated verbally were intended to be the most important two points. I do not accept that they stood for ADG Woodburn’s reasons. The Policy required that the reasons be recorded, as they were. The recorded reasons involved three bullet points, seen in the Manuscript Version (8.6.21) and in the ROTL Decision Notice (14.6.21). On the page, those three bullet points occupy some eight lines. I do not accept the characterisation of Mr Pritchard which, in essence, invited me to treat the first bullet point as a “preamble” and the third bullet point as an “endnote”, treating the substance as communicated in the second bullet point. In my judgment, all three bullet points were what they purported to be: they are each important aspects that featured in ADG Woodburn’s reasoning.

These points do not arise from some exercise of reading the reasons of ADG Woodburn in a legalistic or technical way, or as if they were the words of the statute. Rather the point is that these were straightforward and clear reasons. There were three paragraphs. They were all relevant. They could and should have been communicated in their full and complete terms so that all aspects could be addressed.

I return to the ROTL Risk Assessment. Having dealt already with the written reasons of ADG Woodburn, I focus on the other two documents in the Trilogy of Documents: POM Smith’s Risk Assessment and the ROTL Board Recommendations. I cannot accept Mr Pritchard’s submission that, because the Claimant knew that the ROTL Board recommendation supported ROTL in his case, and because he knew there had been support for ROTL from POM Smith, there was no material point which could have assisted him in representations in support of his appeal arising from his having the Risk Assessment Reports written by POM Smith (updated on 1 June 2021) or the ROTL Board Recommendation written by SPO Carroll (21 May 2021). I have already made the point that POM Smith and SPO Carroll themselves thought it was significant and important that the Claimant and his solicitors should have, and that he should therefore request, those documents. They did not think knowledge of the fact of their support was all that the Claimant should need.

I can test the position by reference to the points which had been of concern to ADG Woodburn. I can also test the position by reference to the points which were, in the event, of particular concern to DG Bailey as identified in her reasoned decision of 8 July 2021. The points to which I have drawn attention would, had the documents been available to the Claimant, have enabled an opportunity for him to make more informed representations about topics such as the “risk management plan … in the community” with its “external controls”, and about the non-completion of relevant “offence focussed interventions”, to counter ADG Woodburn’s concerns and seek (prospectively) to allay DG Bailey’s concerns. It is no answer to say that DG Bailey had the documents, so she could see what they said, and so informed representations from the Claimant could not assist. If that were an answer, procedural propriety would never need the disclosure of such documents. Informed representations are a way of giving emphasis, bringing to life, joining the dots. They are also a way in which the prisoner can show – in their own words – their own understanding, which may again bring a point to life; and the absence of which may count against them. POM Smith had put forward a reasoned basis on which ROTL was considered suitable notwithstanding the concerns. The conditions had been designed by COM Heald who had also expressed support. Those conditions had been characterised by the ROTL Board as robust and sufficient to manage the risk. It was not just the fact of support. It was the reasoning by which the support was expressed, and the topics with which it dealt. That was what was the Claimant was denied.

The Claimant would also have had the reasoned, documented basis to be able to make and support the following powerful point. When the Transfer Decision was made (3.12.19) (§6 above) it was on the express basis (see Transfer Decision at [9c]) of demonstrating the “ability to comply with ROTL conditions”, in a context (see Transfer Decision at [8]) where it would be “for your offender manager or supervisor to identify relevant interventions for you as part of your sentence plan in order to address your risk of harm and risk of re-offending”. The “offender manager or supervisor” were COM Heald and POM Smith (§13 above). Their considered position – which underpinned the ROTL Board Recommendations – was that there was no relevant intervention which was appropriate for the Claimant as a prior step to ROTL. I return to this and other points (§§79, 81 below).

None of this is to say what the decision of DG Bailey would have been had the Claimant had access to the written reasons and the documents, and had he taken the opportunity to make informed representations arising from their contents. It would be an exercise in speculation, stepping into the shoes of the primary decision-maker, for me to seek to assess what the outcome would have been. It is sufficient to say that I can neither assess a negative outcome as inevitable nor as highly likely.

I have arrived at these conclusions on the issue of procedural unfairness without any cross-reference to the principle of “anxious scrutiny” (see §§67-70 below). But in my judgment that principle, if anything, serves to reinforce the concerns which in my judgment in any event arise as to the procedural fairness of the decision of DG Bailey in light of the defaults which had preceded it. It is sufficient that I record that I do not think it is accident or coincidence that, at the same time that “anxious scrutiny” was breaking through in reasonableness-review in asylum cases (see R v SSHD, ex p Bugdaycay [1987] AC 514, 531E-G, 537H), heightened standards of procedural propriety were breaking through in that very same asylum context (see R v SSHD, ex p Thirukumar [1989] Imm AR 402, 414). Since my conclusion on procedural propriety is based on an entirely conventional, contextual approach, I need say no more.

Before leaving the question of procedural unfairness, it is appropriate to make clear that the Court’s finding does not entail any question of blame. It is very clear that POM Smith and SPO Carroll on 16 June 2021 were conscientiously assisting the Claimant including in relation to his rights to access documentation, and that the documents which they advised him to request would have included the written reasons. It is also clear that when Ms Harrison drew up the ROTL Notice of Refusal (14 June 2021) it was with a view to it being provided to the Claimant. When Ms Fisher responded to the Claimant on 14 June 2021 and 25 June 2021, she did so in a way which was intended to promote his being in an informed position including as to his rights. And then again, the week following Friday 25 June 2021, Ms Fisher conscientiously took steps to collate materials so that they could be made available to the Claimant. Ms Fisher did not know that these had not been received. But I have found that, in the event, the documents were not provided to the Claimant. Applying objective standards of procedural fairness, that rendered the Impugned Decision of DG Bailey procedurally unfair. It would not have been clearly identifiable by DG Bailey herself that the Claimant had, or must have been, deprived of the written reasons, still less that he had requested written materials which had not been provided to him.

This case raises a question-mark as to whether and how prisoners, in respect of whom ROTL is being considered, are made aware of their procedural entitlements including (a) written reasons for refusal of ROTL (Policy §§4.19, 6.75) and (b) disclosure, on request by them, of “all information that has been taken into account in reaching the ROTL decision” (subject to three derogations) (Policy §6.78). In the legal analysis of the issues in the present case, I need say no more.

The Agreed Issue is this: When reviewing DG Bailey’s decision for the purposes of a rationality challenge, is it necessary and/or appropriate for the Court to exercise ‘anxious scrutiny’?

Mr Bimmler submits that “anxious scrutiny” of the impugned decision is necessary and appropriate for the reason given by Saini J in R (Wells) v Parole Board [2019] EWHC 271 (Admin) at §35, that:

Wells was a case in which the impugned decision was a decision of a panel of the parole board, not to direct the claimant’s release. In R (M) v SSJ [2009] EWHC 768 (Admin), Silber J observed at §60 that that was “a case calling for intense scrutiny”. M was a case in which the impugned decision was a decision of the SSJ not to transfer the claimant to open conditions, in the application of relevant criteria on transfer (see §§35-36) and on security categorisation (see §§49-50). In R (SP) v SSJ [2010] EWHC 1124 (Admin) at §21, Burnett J (as he then was) also described the principle of “anxious scrutiny” as applicable. SP was a case in which the impugned decision was a transfer direction from prison to a psychiatric hospital. Reference was also made to R (Browne) v Parole Board [2018] EWCA Civ 2024 at §52 and R (PP) v SSJ [2009] EWHC 2464 (Admin) at §§20, 65. Mr Pritchard points out, rightly, that none of these cases concerned ROTL. He submits that a decision on the application of the Rule 9(4) test (§2 above), whose consequences are to grant or decline ROTL, does not engage the principle of “anxious scrutiny”. I cannot accept that submission. In my judgment, it would be odd and incoherent if “anxious scrutiny” applied to a decision – applying relevant criteria – whether to release on licence, whether to move a prisoner from prison to a psychiatric hospital, and whether to transfer a prisoner from closed to open conditions, but not whether to grant ROTL. Although “temporary” – whether day-release (RDR) or overnight release (ROR) – ROTL is a species of release on licence. It directly engages the liberty of the individual. It also constitutes a material stage in a prisoner’s transition towards release on licence, on which they may in practice be reliant as a ‘stepping stone’: cf. R (Hirst) v SSHD [2001] EWCA Civ 378 at §18. This reality is reflected in the Transfer Decision at [9c] (§6 above). In that sense too, individual liberty is very much what is at stake.

I accept the further submission of Mr Pritchard, citing Browne at §52, that the “anxious scrutiny principle” is a contextual “minor modification” to the “relatively high threshold” of public law unreasonableness. Tracing “anxious scrutiny” back to its source, a good working illustration is Bugdaycay at 537H-538A, where judicial review succeeded because it was “not clear” that the defendant public authority “took into account or adequately resolved” relevant matters. That was reflective of an enhanced scrutiny, but in the context of entirely conventional public law principles and standards. I have already touched on the ‘due process’ analogue, which again concerns conventional standards: §64 above. The intensity of the scrutiny that leads to a conclusion on reasonableness, or unreasonableness, coheres within entirely conventional – and equally always entirely contextual – public law standards, in the exercise of the court’s secondary and supervisory review jurisdiction.

There are two Agreed Issues: (1) Was DG Bailey’s decision unreasonable (irrational) because of the contents of the Transfer Decision (§6 above)? (2) Was DG Bailey’s decision unreasonable (irrational) in relation to her treatment of the Claimant’s denial of the index offences? More specifically, as to (2): Did DG Bailey, unreasonably (irrationally) consider the Claimant’s denial of the index offences to be a bar to progression?

As Saini J had also explained in Wells at §§31-34:

Mr Pritchard rightly accepts that that approach is one which can properly be invoked by the Claimant in the present case. Mr Bimmler rightly locates his reasonableness ground within this approach. Mr Bimmler also accepts that the reasonableness grounds advanced in the present case are not to the effect that the ‘sole reasonable course’ open to the Defendant was to approve ROTL. Rather, Mr Bimmler submits that the decision not to approve ROTL was vitiated in terms of the logic of the reasons, with the consequence that the decision should be remitted to be taken afresh.

I will start with Agreed Issue (2): the reasonableness grounds concerned with denial of index offences. Mr Bimmler points out that it is well-established that it is not permissible to rely on a convicted prisoner’s maintained denial of guilt as a bar to their progression (see eg. R (Roberts) v SSHD [2004] EWHC 679 (Admin) at §§35-36; R (Gourlay) v Parole Board [2014] EWHC 4763 (Admin) at §§28, 31-33) which includes as a “dominating ground” (R v SSHD, ex p Zulfikar (No.2) unreported, 1 May 1996). Mr Bimmler accepts that DG Bailey correctly recorded the position in the Impugned Decision at [1] (§19 above): “I note that you maintain your innocence and that this is not a bar to you progressing”. He submits that DG Bailey then misapplied the law at [6]: “The parole board have described the situation with you as ‘an impasse’ and they did not find your account or denial of your offending to be credible. I would suggest that if you are to make significant progress towards release, you will need to reflect very carefully on your situation and consider further how you can demonstrate that the risk you pose to the public has reduced.”

Mr Bimmler submits that the final sentence, with its emphatic language “if you are to make significant progress… you will need”, was in substance identifying the acknowledgment of guilt as a precondition to progress towards release. He also relies on a factual contention, recorded in the Grounds for Judicial Review, that when Governor Hillman communicated DG Bailey’s decision to the Claimant, he (Governor Hillman) told the Claimant that DG Bailey had indicated to him (Governor Hillman) that the final sentence was intended to refer to the Claimant’s continued denial of his guilt. Mr Bimmler invites me to reject, as an ex post facto rationalisation, inconsistent with the contemporaneous reasons, DG Bailey’s witness statement evidence which states that she had “not advised” Governor Hillman “that my reference to the need for [the Claimant] to reflect carefully was intended to refer to his denial of guilt”.

I cannot accept this ground for judicial review. In my judgment there was no unreasonableness in DG Bailey’s treatment of the Claimant’s denial of the index offences; and DG Bailey did not treat the Claimant’s denial of those offences as a bar to progression. It is appropriate, and sufficient, to focus on the contemporaneously expressed reasons (§19 above). There is no direct evidence from Governor Hillman; there is no direct evidence from the Claimant. The reasons constitute the decision, and it is the reasons that matter. They need to be read fairly and as a whole. The Decision started by recording, correctly, at [1] that maintained innocence is not a bar to the Claimant progressing. Throughout the rest of paragraph [1] and paragraphs [2] to [5] substantive reasons are given which are not expressed as, nor are in substance, a function of maintained innocence. The point at [3] which feeds into [4] and [5] clearly extends beyond the maintained innocence and its implications. The final sentence of [3] (“you have not completed any relevant offence focused interventions”) is clearly linked as a consequence of maintained innocence. But it fits alongside the other reasons which, when read fairly and as a whole, do not reach a conclusion on that sole or predominant basis. The description at [6] of an “impasse”, is one identified by the Parole Board. It needs to be read with paragraph [1]. It is plainly materially informed by the “denial of your offending” which was something the parole board has not found “credible”. But that is not to say – nor is it suggested – that the Parole Board had treated maintained innocence as, in and of itself, a bar to the Claimant progressing. The “suggest[ion]” that the Claimant “will need to reflect very carefully” on the “situation” and “how” he can demonstrate reduced risk does resonate in terms of his maintained innocence. But it also resonates more broadly. In the Parole Board’s decision – to which DG Bailey was referring – making the Transfer Recommendation on 21 October 2019 (§5 above), the Board had said this: “The panel accept that denial is not a bar to progression or release, although remain concerned that you do not identify that you had any difficulties in your life at the time you were offending and as such have not been able to evidence how your strengths and protective factors that might contribute to desistance from offending have developed.” DG Bailey had said at paragraph [1] that it was noted, at the Claimant’s last parole hearing, that his absolute denial “of committing any offences”, “of having any sexual interest in female children”, “and of needing personal development of any kind” was “a significant concern and certainly makes an assessment of the risk that you pose very problematic”. All of this is broader than maintained innocence. Possible “work” was described in the “other reports” to which DG Bailey referred at [3]. The recommendation of POM Smith referred to assessments of unsuitability of work as being based, not only on maintained innocence, but also on the fact that the Claimant “does not accept that he has any difficulties within his life that he needs to address”. The first reason given by ADG Woodburn (albeit unseen by the Claimant), in the appealed decision of 8 June 2021 (§19 above), was that the “Parole Report stated that work should be undertaken in regards to a personality disorder pathway”.

In my judgment, points relating to maintained innocence not being a bar to progression do serve – but can go no further than serving – to bring into sharp focus the reasons identified in the main body of DG Bailey’s impugned decision, to see whether those reasons can withstand scrutiny on the approach identified in Wells. That leads me to the remaining and final issue.

This is the other reasonableness issue. It is the point that concerned Choudhury J. In granting permission, he said it was arguable that DG Bailey’s decision “is unreasonable given the basis on which the Claimant was transferred to open conditions”.

On this ground Mr Bimmler submits, in essence as I saw it, as follows. There was a logical incongruence, lacking a logical reasoned and reasonable justification, between the Defendant (DG Bailey)’s Impugned Decision of 8 July 2021 and the Defendant (Becca Humphrey)’s Transfer Decision of 3 December 2019 (§6 above), which explained the reasoned basis for transferring the Claimant to open conditions:

There is force in these points.

In approaching this, freestanding, reasonableness ground it is, in my judgment, appropriate to remember that I have already found that the Claimant did not have the rights which procedural fairness requires, so as to be able to advance more informed representations. The points which I have summarised in many ways exemplify what could have been put forward by him, on the merits, in informed representations with access to ADG Woodburn’s written reasons and the Trilogy of Documents constituting the ROTL Risk Assessment. Naturally, the points would not have been made as a critique of an appeal decision not yet made; but rather as aspects of a challenge to ADG Woodburn’s decision and as points going to the appeal decision which was yet to be made. On this topic, I have already explained why it would not be right to speculate on what DG Bailey’s decision would have been, had the Claimant been in a more informed position in the making of his appeal representations, all of which is relevant to why there is a “material” procedural unfairness in this case. Had the Claimant been better informed, and had he made points along the lines of what I have just summarised, the contextual framework for DG Bailey’s decision would have been different. As a public authority giving a reasoned decision, she would be expected to deal with the key points raised in the representations, which representations could raise issues which became so obviously relevant that regard needed to be had to them, in turn affecting the analysis of the reasonableness and legal adequacy of reasons for an adverse decision. The consequence, moreover, of the Claimant’s success on procedural fairness is that DG Bailey’s decision will be quashed, and the matter remitted for consideration afresh. In these circumstances, there are some difficulties and dangers of distortion in the Court addressing – supposedly on an insulated and freestanding basis – the question of substantive reasonableness of the historic decision and its reasons.

Both parties encouraged me to deal with reasonableness ground, and to do so on a freestanding basis. I think the principled way in which to do so is to posit that I am wrong on the question of procedural fairness. That means I must treat the facts and circumstances of the present case as having arisen, just as they did, including the representations which the Claimant made. I must treat that as a position being consistent with applicable standards of procedural fairness, suspending my disbelief as to that consistency. That is what I will now do.

In my judgment, including in light of the representations which were being made, there was no logical gap – or other unreasonableness – in the reasons set out in the Impugned Decision of DG Bailey on 8 July 2021. DG Bailey needed squarely to address the Rule 9(4) test for ROTL (§2 above). That was the question governing ROTL, as it had been for ADG Woodburn. It was not the test being applied in the Transfer Decision which Becca Humphrey took for the Defendant on 3 December 2019. Next, the Transfer Decision could not and did not of itself constitute a reasoned basis for the Claimant being given ROTL. It was not an application of the relevant test for a decision on ROTL, nor was it arrived at after the relevant process for a decision on ROTL, nor was it taken by the relevant decision-maker for the purposes of ROTL. After describing the “review” and its function, the Transfer Decision stated expressly at [9f] that: “ROTL … will only be granted after a full risk assessment showing that it is safe for you to be trusted in the community”. In other words, the Transfer Decision was expressly caveated, and without prejudice to, the need for there to be satisfaction of the rule 9(4) test, after a full risk assessment. DG Bailey’s attention was drawn to the link between ROTL and the reasoned Transfer Decision in the following phrase in POM Smith’s Recommendation (§8 above) that the Claimant have “access to ROTLs … as his progression to open conditions was directed by the secretary of state following a parole review in October 2019”. If the word “as” was indicating that ROTL must now logically follow from the reasoned Transfer Decision, that would in my judgment have been an overstatement. DG Bailey had the relevant ROTL Risk Assessment (the Trilogy of Documents) and the other reports. Her decision identified features identifiable from those materials. She explained, by reference to a number of points – including the fact that she could see little evidence of a significant reduction in risk, and that she could not be confident that the Claimant could safely be released on temporary licence – correctly identifying her first duty as being to protect the public. I am applying anxious scrutiny. But I am leaving aside what content and standard of reasons would have been called for had different and more informed representations been put forward, or on a remitted reconsideration. Approached in that way, DG Bailey’s conclusion did follow from the evidence and involved no unexplained evidential gap or leap in reasoning which failed to justify it. Approached in that way, no relevant consideration – so obvious, from the evidence and representations, that it could not reasonably be left unaddressed – was disregarded. Applying anxious scrutiny, this is not a case crossing the high threshold of unreasonableness, where the decision is vitiated by the logic of the reasoning and requires reconsideration afresh on that basis.

That is not to say that the decision of DG Bailey on 8 July 2021 is necessarily correct on the merits. The merits are not for this Court. Still less is it to say that the reasons would be legally adequate, if fuller and more informed representations had been – or were now – put forward with the benefit of the documents which should have been available to the Claimant and were not. In light of my conclusion on the procedural fairness ground, I will quash the Impugned Decision of DG Bailey on 8 July 2021 and remit for reconsideration afresh by a different decision-maker, with the Claimant and his representatives afforded the opportunity to make fresh informed representations. It will be for the relevant decision-maker to decide what decision is the correct one, for what reasons, on the merits.

There are two endnotes to this analysis. First, Mr Pritchard submitted that the assessment of POM Smith and CRM Heald that no “relevant interventions” were suitable to “address” the Claimant’s “risk of harm and risk of reoffending” could not, in principle, be relevant to the decision on ROTL. His submission was that all that was, in principle, relevant was their assessment as to the appropriateness of ROTL. Mr Pritchard emphasised that, in a scenario in which the ROTL test in Rule 9(4) (§2 above) cannot be met, it could not then assist that the “offender manager or supervisor” was able to come up with no further suitable intervention. I see the force of that submission in that scenario. But I cannot accept a wider submission that it is legally irrelevant that the “offender manager or supervisor” are not only recommending ROTL but also, being charged with the responsibility of identifying relevant interventions, expressing their satisfaction that no relevant intervention is necessary or appropriate to precede it.

Secondly, Mr Prichard showed me the decision of the Parole Board dated 21 October 2021, declining to direct the Claimant’s release on licence, and stating in the reasons:

In light of my conclusion on the procedural fairness ground, I will quash the Impugned Decision of DG Bailey on 8 July 2021 and remit for reconsideration afresh by a different decision-maker, with the Claimant and his representatives afforded the opportunity to make fresh informed representations. The unreasonableness ground fails. Having circulated this judgment as a confidential draft I can deal here with the order and consequential matters, including revisiting the question of the appropriate order as to costs in light of my earlier observations about the position, in principle, in light of the Defendant’s various defaults. Creditably, the parties were able to agree the terms of a substantive Order appropriately reflecting the terms of this judgment – with which I agree – whose principal terms are: (i) the Claimant’s claim for judicial review is allowed on Ground 1, for the reasons given in the judgment; (ii) the decision of DG Bailey dated 8 July 2021 on the Claimant’s application for ROTL is quashed; (iii) the Claimant’s application for ROTL is remitted for fresh consideration by a different decision-maker, with an opportunity for the Claimant and his representatives to make fresh informed representations; and (iv) the Defendant shall pay the Claimant’s reasonable costs of the judicial review claim, to be assessed if not agreed, on the indemnity basis until 29 July 2022 and on the standard basis thereafter.