R Lamot and Others v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Simler,Mrs Justice Simle |
| Judgment Date | 29 September 2016 |
| Neutral Citation | [2016] EWHC 2564 (Admin) |
| Docket Number | CO/2302/2014, CO/2978/2014 & CO/2630/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 September 2016 |
[2016] EWHC 2564 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Simler
CO/2302/2014, CO/2978/2014 & CO/2630/2014
Mr R Reynolds and Mr B Hoshi (instructed by Hine Solicitors) appeared on behalf of the Claimants
Mr S Pritchard appeared on behalf of the Defendant
This is an application by the Defendant, the Secretary of State for Justice, to strike out claims for judicial review pursued on behalf of Abdiaziz Warsame, Michael Lamot and Hussain Ali Hussein, the three Claimants. The application is brought under CPR Rule 3.4(1) on the basis that the issues raised now being academic and of historic interest only, there are no reasonable grounds for bringing the claim and/or it is an abuse of the court's process.
The Defendant appears by Mr Simon Pritchard of counsel. The applications are resisted by the three Claimants who appear by Mr Richard Reynolds for the Second Claimant and Mr Bijan Hoshi for the First and Third Claimants, both of counsel. I have received written submissions from all counsel and heard from Mr Pritchard and Mr Reynolds today and have been assisted by their careful, focused submissions.
At the time of making these claims, the Claimants were all foreign national prisoners in closed conditions liable for deportation and serving indeterminate prison sentences. The First Claimant had been convicted of murder and was serving a life sentence with a minimum tariff of around 12 years imposed on 14 May 2004; the Second Claimant was convicted of murder and serving a life sentence with a minimum tariff of a little more than 11 years imposed on 22 December 2004; and the third Claimant was convicted of murder and serving a life sentence with a minimum tariff of something over nine years imposed on 11 May 2007.
The claims all concern decisions taken by the Defendant in early 2014 not to accept the Parole Board's recommendations to transfer them to open conditions. Those decisions are challenged as reflecting a breach of the Defendant's stated policies in existence at that time, as unlawful decisions themselves and as irrational. Moreover, there is a challenge to the legality of the Defendant as the executive refusing to follow the decision of an independent judicial body, here the Parole Board.
Since the claims were originally made, there have been significant material developments:
(i) on 15 June 2016 the Parole Board directed the release of the Second Claimant, who has now been released from prison, albeit he may be held under immigration detention.
(ii) the First and Third Claimants' cases have also been reconsidered and the Defendant has determined that they are both a very low risk of absconding. The First Claimant is accordingly now in open conditions and the Third Claimant has been assessed as suitable for transfer to open conditions.
(iii) Moreover, the provisions of the policies that were in place so far as relevant to questions of transfer to open conditions (PSI 40/2011 and 52/2011) have been superseded. Policy PSI 37/2014 on eligibility for open conditions and for ROTL of prisoners subject to deportation proceedings was published in August 2014 and provides, so far as relevant, the presumption is that prisoners who are liable for deportation will not be suitable for open conditions unless they are assessed as presenting a very low risk of seeking to avoid the intention to deport by absconding.
(iv) In April 2015 the Defendant amended directions to the Parole Board consistently with PSI 37/2014 as follows:
i. "Before recommending that [a foreign national indeterminate sentence prisoner who is liable to deportation] be transferred to open conditions, the Parole Board must be satisfied that the ISP presents as a very low risk of abscond."
The directions go on to explain that:
i. "[The] Risk may be lessened where the [prisoner] is known to be cooperative and is seeking to return to his or her home country, as will other factors such as strong family ties in this country or that the [prisoner] does not wish to jeopardise his chances of successfully appealing and remaining in this country."
(v) In June 2015 the Defendant published PSI 22/2015, which is a generic parole process for indeterminate and determinate sentenced prisoners. That explains, so far as relevant, that:
i. "The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are that the panel's recommendation:
• either goes against the clear recommendations of report writers without providing a sufficient explanation as to why;
• or is based on inaccurate information.
ii. The [Defendant] may also reject a Parole Board recommendation where he does not consider that there is a wholly persuasive case for transferring the prisoner to open conditions at this time."
None of those (now) current policies are challenged on this judicial review application. Indeed, it is under those new policies that the Claimants' cases have been reconsidered and have led to the change in their positions that I have just identified. In light of the changed circumstances, the Defendant contends that these claims are academic and should be struck out.
Before addressing the competing contentions in relation to the application, it is helpful to set out briefly the procedural history of the claims. It can be summarised as follows.
The claims were issued respectively on 6 June, 2 May and 27 June 2014 by each of the First, Second and Third Claimants. There was an acknowledgment of service in each claim filed and served on 31 July 2014 requesting that the claims be stayed until 21 days after the promulgation of the decision in what was described as a similar fact case, Harris v Secretary of State for Justice [2014] EWHC 3752, as it subsequently came to be reported. In response, on 9 August 2014 the Claimants requested that their claims be linked with Harris. That application was refused on 9 September 2014 and instead the claims were stayed behind Harris.
On 24 October 2014 Dove J handed down judgment in Harris refusing the claimant's claim for judicial review. Mr Harris sought permission to appeal to the Court of Appeal. Three grounds were raised. First, so far as Dove J's decision that the executive can reach a different conclusion in respect of the risk of absconding from the independent judicial body, the Parole Board, it was said that Dove J was wrong. Secondly, to the extent that the case of Evans had been distinguished by Dove J in Harris, it was said he was wrong to do that. Thirdly, there was a challenge based on rationality.
The single LJ, McCombe LJ, gave permission on the papers by a decision dated 6 February 2015 stating:
i. "I consider that the grounds of appeal have a real as opposed to fanciful chance of success and raise issues of some public importance."
Following the first instance decision in Harris, the stays were lifted in the Claimants' claims. On 4 June 2015 there were summary grounds of defence filed by the Defendant relying principally on the decision of Dove J in Harris. Thereafter, Hayden J refused permission to proceed in respect of the judicial review application, relying on Harris. The Claimants renewed their permission applications orally but Sir Stephen Silber adjourned them pending the Court of Appeal's decision in Harris. Subsequently, Mr Harris withdrew his appeal.
The result is that consolidated amended grounds for judicial review were only served in early 2016. Detailed grounds of defence have not been served because the Defendant preferred instead to reconsider the Claimants' cases in the way I have described. No witness statements have been served nor has there been any disclosure. The Claimants have however, been given permission to pursue these judicial review applications on 5 May 2016 by Sir Stephen Silber who cited McCombe LJ's grant of permission to appeal in Harris, including that issues of some importance were raised.
The legal principles that apply to the question whether a claim is academic are not in dispute. Rather, it is their application to these facts that is in contention.
The law is set out in R v Secretary of State for the Home Departmentex parte Salem [1991] 1 AC 450 by the House of Lords and guidance given in Rusbridger v Attorney General [2004] 1 AC 357 makes clear that it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. The discretion to hear disputes even in the area of public law must be exercised with caution. Matters which are academic between the parties should not be heard unless there is good reason in the public interest for doing so, as, for example, when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.
That test was encapsulated helpfully by Silber J in Zoolife [2007] EWHC 2995 at paragraph 36 in the following way:
i. "In my view, these statements show...
To continue reading
Request your trial
-
David Bonner v Secretary of State for Justice
...decline to grant further relief …” 62 I was also referred to the decision of Simler J in R (Lamot) v Secretary of State for Justice [2016] EWHC 2564 (Admin) as an example, on facts not dissimilar to the present case, of the practice of the Court to refuse relief where it would serve no usef......
-
Upper Tribunal (Immigration and asylum chamber), 2019-04-04, JR/04627/2018
...taken into account and acted upon. 32. Finally, in The Queen on the application of Lamot & Others v Secretary of State for Justice [2016] EWHC 2564 (Admin), one of the three prisoners had been released from prison, one had been transferred to open conditions and one had been assessed as bei......