R (on the Application of Stephen Charles Ryder) v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Mr Justice Stewart |
| Judgment Date | 30 June 2015 |
| Neutral Citation | [2015] EWHC 1857 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/851/2014 |
| Date | 30 June 2015 |
[2015] EWHC 1857 (Admin)
IN THE HIGH COURT OF JUSTICE SITTING IN MANCHESTER
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Mr Justice Stewart
Case No: CO/851/2014
Hugh Southey QC and Aileen McColgan (instructed by Stephensons Solicitors LLP) for the Claimant.
Martin Chamberlain QC and Richard O'Brien (instructed by the Treasury Solicitor) for the Defendant.
Hearing dates: 13 & 14 May 2015
Introduction
The claimant, Stephen Ryder, murdered Janet Kemp on 4 June 2000. At that time he was on licence following convictions for burglary and theft. Ms Kemp, who had known him for over 20 years, had offered him temporary accommodation at her home in exchange for his redecorating it. He killed her four days after moving in. He hit her on the head several times with a brick and then stabbed her repeatedly with a kitchen knife. He then hid the body in a roll of carpet and concealed it in a garden shed. In the following days he stole money from the house and sold furniture and electrical goods taken from it before handing himself in to the police on 15 June 2000.
The claimant was convicted after a trial at Norwich Crown Court on 16 May 2001. He was sentenced, as required by law, to life imprisonment. In due course the minimum term was set at 16 years. The claimant will not be eligible for release before 2017 (subject to credit for time spent on remand in custody, if applicable).
The claimant appears to have conducted himself most commendably while in prison. On 3 September 2013 his case was referred, under s.239 of the Criminal Justice Act 2003, to the Parole Board with the aim that what is described as a "pre-tariff review" should take place by February 2014. It is common ground that that course was taken with a view to the Parole Board considering whether to recommend the transfer of the claimant to an open prison as a potential precursor to his ultimate release.
Such matters are not always dealt with by way of oral hearing. On 5 November 2013, however, the claimant's solicitors (who held a relevant contract to offer prison law advice) submitted written representations requesting an oral hearing before the Parole Board, the work being funded for that purpose under the then available Criminal Advice and Assistance schemes.
In January 2014 the claimant's solicitors were notified that the application for an oral hearing had been granted. However, by letter dated 6 January 2014 the Legal Aid Agency notified the claimant's solicitors that the claimant did not qualify for legally aided advocacy assistance at the forthcoming Parole Board hearing. That position was maintained on behalf of the defendant Lord Chancellor in a written response dated 31 January 2014 to the claimant's solicitors' letter of claim dated 17 January 2014.
A number of issues have fallen away before the matter came on for hearing before us. What, in essence, remains is this. The decision to refuse legal aid for advocacy assistance at the Parole Board hearing was founded on the provisions of the Criminal Legal Aid (General) (Amendment) Regulations 2013, SI 2013/2790 ("the Amending Regulations") which had made amendments to the Criminal Legal Aid (General) Regulations 2013, SI 2013/9 ("the Regulations"). It is common ground that the Amending Regulations had the effect that criminal legal aid was not available for, among other things, pre-tariff review hearings before the Parole Board. The claimant argues that in this respect the Amending Regulations, and in consequence the decision of 6 January 2014, are invalid. By claim form issued on 23 February 2014, with subsequently amended grounds, the claimant seeks an order quashing the relevant parts of the Amending Regulations; a mandatory order that the defendant, the Lord Chancellor, provide him with advocacy assistance for the oral pre-tariff review hearing; and damages. Permission to apply was refused on the papers but subsequently limited permission to apply was granted after an oral hearing.
The nub of the claim is that, so it is said, the Amending Regulations are in breach of Article 14 of the European Convention on Human Rights. It is further said that the Amending Regulations breach common law principles of consistency. A yet further ground is sought to be added by proposed amendment. That is to the effect that the Amending Regulations are ultra vires, in that they were not authorised under the primary legislation, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO").
The statutory framework
It may be noted that this is not the first time that the Amending Regulations have come before the courts. In particular, a challenge was raised as to the validity of the Regulations and the Amending Regulations in R (The Howard League for Penal Reform) v The Lord Chancellor [2014] EWHC 709 (Admin). It was among other things claimed in that case that there had been a failure sufficiently to consult; that the removal of criminal legal aid in such cases was bound to lead to unfair decision-making; that the Amending Regulations were irrational; that the Amending Regulations unduly interfered with principles of access to justice; and so on. All such challenges failed before the Divisional Court (Rafferty LJ and Cranston J): to the extent, indeed, that permission to apply for judicial review was refused, albeit permission was given to cite the judgment. It was said, at paragraph 54 of the judgment, that the forum for advancing the concerns raised "remains the political".
It was common ground before us that the issues raised in that case (on which, we gather, an appeal is pending) are not the issues raised in the present case. However, it is worth drawing attention to that case, not least because the reserved judgment of the court contains in paragraphs 5 to 35 a detailed and valuable review of the legal context and of the whole process leading up to the making of the Regulations and the Amending Regulations. There is therefore little point in replicating that review in this judgment: especially when that previous decision will be readily available to those interested in this branch of the law.
Consequently I will confine myself to the principal statutory provisions relevant to the present case.
Section 15 of LASPO, to be read also with s.41, relates to criminal legal aid. In particular, s.15(1)-(4) provides as follows:
"15. Advice and assistance for criminal proceedings
(1) Regulations may provide that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if—
(a) prescribed conditions are met, and
(b) the Director has determined that the individual qualifies for such advice and assistance in accordance with the regulations (and has not withdrawn the determination).
(2) Those individuals are—
(a) individuals who are involved in investigations which may lead to criminal proceedings (other than individuals arrested and held in custody at a police station or other premises),
(b) individuals who are before a court, tribunal or other person in criminal proceedings, and
(c) individuals who have been the subject of criminal proceedings.
(3) When making the regulations, the Lord Chancellor must have regard, in particular, to the interests of justice.
(4) The regulations must require the Director to make determinations under the regulations having regard, in particular, to the interests of justice."
The Regulations which came into force on 1 April 2013 were made in accordance with s.15(3) of LASPO. The recital to the Regulations includes the statement:
"In making these Regulations, in accordance with s.15(3) of [LASPO], the Lord Chancellor has had regard in particular to the interests of justice."
Regulation 12 specifies the conditions prescribed for the purposes of s.15(1) of LASPO. These include as one of the conditions a condition (Regulation 12(2)(g)) that the individual concerned must:
"…be the subject of proceedings before the Parole Board."
Thus far the claimant would have been eligible for legal aid at an oral hearing before the Parole Board. But this was altered by the Amending Regulations which came into force, in the relevant respects, on 2 December 2013. For, by Regulation 4(4), paragraph 12(2)(g) of the Regulations was amended so as to add the words: "where the Parole Board has the power to direct the individual's release". It is this provision, if valid, which has the consequence that the claimant ceased to be eligible for advocacy assistance at the oral hearing before the Parole Board.
This is because, as was common ground before us, the Parole Board had and has no power to direct the release of the claimant before the expiry of the specified minimum term. Under s.239 of the Criminal Justice Act 2003, the Parole Board is given the powers and functions there specified. Thus as to those individuals, such as the claimant, serving mandatory life sentences the Parole Board has power to direct release upon expiry of the specified minimum term (or tariff): s.28 of the Crime (Sentences) Act 1997. But no such power exists, so far as the Parole Board is concerned, prior to the expiry of the life prisoner's minimum term. In such a situation the Parole Board's functions, under s.239(2) of the 2003 Act, are confined. Such sub-section provides:
"(2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with...
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