R (Smith, Trevor) v Parole Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,LORD JUSTICE CLARKE |
| Judgment Date | 30 June 2003 |
| Neutral Citation | [2003] EWCA Civ 1014 |
| Docket Number | C3/2003/1420 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 2003 |
[2003] EWCA Civ 1014
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE GOLDRING)
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Lord Justice Auld and
Lord Justice Clarke
C3/2003/1420
C3/2003/1419
MR ANTHONY SCRIVENER QC and MS S WATSON (instructed by Messrs Rooney & Co, Wirral CH41 6AF) appeared on behalf of THE APPELLANT/CLAIMANT
MR J CROW and MR P PATEL (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT/DEFENDANT
Monday 30 June 2003
This appeal from a decision of Goldring J of 24 June 2003 raises a point of some practical importance. It is as to what should be the proper approach to be adopted when there has been a contested oral application for permission to apply for judicial review following which the judge gives permission for one or more grounds to be relied upon, but refuses permission for other grounds to be relied upon and the applicant wishes to pursue the other grounds because he considers that the judge was wrong to refuse to give an unspecified permission.
The background facts to the present case are as follows. On 8 May 1998 the claimant was convicted at Manchester Crown Court of rape and threats to kill. He was sentenced to eight years' imprisonment. He was also made subject to an extended licence order under section 44 of the Criminal Justice Act 1991, the effect of which was that the period during which he would remain on licence following release would be extended from the three-quarter point to the end of his sentence. The position is that if an offender is sentenced to four years' imprisonment or more, he is not automatically released from that sentence until the two-thirds point of the sentence. He would be entitled to apply for parole after the half-way stage and he would in the normal way cease to be on licence at the three-quarter point of the sentence. The position, as I have indicated, is different if an offender is subject to an extended licence order.
The claimant's sentence was reduced on appeal to six-and-a-half years' imprisonment. Accordingly, the claimant was entitled to be, and was, released on licence on 7 November 2001. His sentence is due to expire on 3 December 2003.
The claimant was required by the conditions of his licence to reside at a hostel. He was also required generally to be of good behaviour, not to commit further offences and not to take action which would jeopardise the objectives of his supervision.
While on licence the claimant on three occasions tested positive for cocaine and other class A drugs. Other tests were carried out on other occasions. On 25 January 2002, the probation service recommended his recall. On 4 February 2002, the Parole Board considered the matter and recommended recall. On 6 February the Secretary of State accepted the Board's recommendation and revoked the claimant's licence with the consequence that he was returned to custody.
The claimant's solicitors submitted substantial representations to the Parole Board. The claimant admitted the use of cocaine. However, he claimed that he had been clean of drugs when released from prison and that his current drug use whilst on licence was attributable to the environment in which he had been placed by the probation service subsequent to his release. He contended that drug-taking and supply was endemic in hostels.
By letter of 3 April 2002, the Board rejected the claimant's representation against recall. They did so having carefully studied the written representations that had been made. No application was made to the Board that they should hear oral representations. However, a claim for judicial review was issued more than eight months after the Parole Board's decision on 30 December 2002. The sole complaint is that the Parole Board took its decision without having held an oral hearing. This was alleged to be in breach of Articles 5 and 6 of the European Convention. The application sought urgent consideration, but permission was refused. The application for permission was also refused on paper by Hooper J on 3 February 2003. As he was entitled to do, the claimant renewed the application and sought an oral hearing.
On the oral hearing, in addition to relying on his arguments under Articles 5 and 6, he also contended that he was entitled to an oral hearing at common law. Silber J heard the oral hearing for permission on 17 March 2003. He granted limited permission, identifying the only issue which was fit for further hearing in the following terms:
"Whether in the light of the comments of the Court of Appeal in the case of West v Secretary of State for the Home Department the claimant was entitled to have an oral hearing prior to the determination of the Parole Board of 3 April 2002 because it constituted a determination of his civil rights and obligation under Article 6 of the European Convention on Human Rights or at common law. All other claims are dismissed."
It is not in dispute that the effect of Silber J's decision, which was given after a hearing, we are told, of approximately three hours, made it clear that the claimant did not have permission to argue the Article 5 grounds of his application.
The claimant did not serve any skeleton argument for the substantive hearing. Instead he relied on a summary of argument which had been used at the oral hearing before Silber J. A skeleton argument was served on 30 May 2003. It set out the issue as defined by Silber J. The matter was due to be heard by Goldring J on Tuesday 24 June 2003. The day before that hearing Mr Scrivener QC, who appeared on behalf of the claimant, supplied an additional bundle of three new authorities and a supplemental skeleton in which he sought to revive his previous reliance upon Article 5 of the Convention. The Treasury Solicitor took objection to this as it was an issue in respect of which permission had been refused three months earlier. At the hearing on 24 June 2003, Mr Scrivener sought to persuade the judge to reconsider the question of permission on Article 5. He argued that Silber J's decision had been per incuriam because of three authorities, namely Hussain v UK (1996) 22 EHRR 1, Singh v UK (1996) 22 EHRR 1, and Waite v UK (App No 53236/99, 10.12.2002).
The three cases differed from the present because they deal with young offenders who because of their age had been detained during Her Majesty's pleasure instead of being sentenced to life imprisonment. In those cases, very briefly, it was decided that an offender who is detained during Her Majesty's pleasure is entitled to have his continued detention reviewed by the Parole Board and to have (at least in appropriate circumstances) an oral hearing in that regard on the basis not only of Article 6 but possibly primarily on the basis of Article 5. Mr Scrivener submitted that these cases, which had come to his attention and that of his instructing solicitor only shortly before the hearing before Goldring J, altered the situation. He would have sought to rely on them before Silber J if had been aware of them, and he contended, whether or not they were technically per incuriam, that they were cases which made his argument in reliance on Article 5 stronger than it had been when it was urged before Silber J.
Having heard the submissions which have been advanced before us by Mr Crow on behalf of the Secretary of State, we are not at this stage convinced that the three decisions on which Mr Scrivener seeks to rely significantly altered the position as it was argued before Silber J. However, it is right to point out, as is apparent from the transcript, that the argument before Silber J was primarily in relation to Article 6 and the argument in regard to Article 5 was touched on only briefly by Mr Scrivener in the course of his submissions. However, for the purposes of the present appeal we are not required to consider the significance of those authorities and we do not purport to give any indication as to their relevance to the issues which were to be determined by Goldring J.
In support of his application when before Goldring J, the claimant relied on the decision of Lightman in Regina (Opoku) v Principal of Southwark College [2003] 1 WLR 234. In Opoku Lightman J dealt specifically with the appropriate course to be adopted where, following a contested oral hearing for permission to apply for judicial review, the judge granted permission on one ground but specifically refused permission on another ground and the claimant wished to argue further that he should be granted permission in respect of the ground on which he was refused. Lightman J, first of all, looked at the Civil Procedure Rules and in particular the provisions of rule 54.15. At paragraph 14 of his judgment he said:
"It is important that there should be read into the Rules no limitation on the jurisdiction of the High Court to grant permission on a fresh application. There may be circumstances where notwithstanding the previous refusal of permission a second application may be appropriate or necessary. The previous decision may have been correct and not open to challenge at the time the decision was made, but circumstances may have materially altered, new evidence may have come to...
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