Ryder v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe |
| Judgment Date | 06 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1392 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2015/2565 |
| Date | 06 December 2016 |
[2016] EWCA Civ 1392
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice McCombe
C1/2015/2565
Mr H Southey QC and Ms A McColgan (instructed by Stephenson) appeared on behalf of the Applicant
The Respondent was not present and was not represented
This is a renewed application for permission to appeal the order of the Divisional Court of the Queen's Bench Division, Davis LJ and Stewart J, of 30 June 2015 dismissing the Applicant's claim for judicial review of the decision of the Respondent, Lord Chancellor, not to provide the Claimant with legal aid in order to obtain advocacy assistance at a pre-tariff Parole Board hearing.
The decision followed as a consequence of an amendment to Regulation 12(2)(g) of the Criminal Legal Aid (General) Regulations 2013. The material legislation is set out in more detail in the judgment of Davis LJ in the court below, neutral citation [2015] EWHC 1857 (Admin).
The significant provision is in Regulation 12(2)(g), as I have mentioned, as amended, making available legal aid for an individual who is "the subject of proceedings before the Parole Board where the Parole Board has the power to direct the individual's release". That last clause, "where the Parole Board has the power to direct the individual's release", was added to the relevant sub-paragraph by Regulation 4(4) of the amendment regulations of 2013. The result is that in a case effecting an individual whose release cannot be directed by the Parole Board, no legal aid for any oral hearing is available.
At the relevant time, the Applicant was serving a sentence of life imprisonment for murder with a minimum custodial term of 16 years. He had not served that minimum term. Therefore, his case was to be considered by the Board for the purpose of looking at the issue of whether he should be recommended for a move to open conditions as a step towards his release into the community. The court could not direct his release as such.
In January 2014 his solicitors were notified of the grant of an oral hearing to consider the issue and of the question to be decided of a move to open conditions. However, very shortly thereafter, he was informed that he did not qualify for a legal aid advocacy service in view of the wording of the amended regulation.
This led to the issue of the present judicial review proceedings. The Applicant challenged the lawfulness of that situation on three grounds. First, that the amending regulations were ultra vires in enabling statute. Secondly, that it constituted an unlawful discrimination against the Applicant under Article 14 of the European Convention on Human Rights in conjunction with his right to liberty under Article 5. Thirdly, that it constituted a breach of the common law principle of consistency.
The claim was rejected on each of those grounds by the Divisional Court, which refused permission to appeal to this court. Permission to appeal was also refused on a consideration of the papers by Tomlinson LJ in an order of 12 January of this year. The application is now renewed. Today, as at all stages of the proceedings, the Applicant has been represented by Mr Southey QC who has addressed submissions of a customary helpful quality.
The arguments wish to be raised on the proposed appeal are essentially the same as those that were raised below with refinements, which Mr Southey argues would have real prospects of success. Further and alternatively, he submits there is a compelling reason to grant permission to appeal.
In view of the identity of the argument here and below, as I say with refinements, it is not necessary to recite them further here. They can be gleaned from the judgment of Davis LJ...
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