Scott Newson v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 09 November 2022 |
| Neutral Citation | [2022] EWHC 2836 (Admin) |
| Docket Number | Ref: CO/3269/2022 |
| Court | King's Bench Division (Administrative Court) |
In the matter of an application for judicial review
The King on the application of
and
[2022] EWHC 2836 (Admin)
Mr Justice Ritchie
Ref: CO/3269/2022
In the High Court of Justice
King's Bench Division
Administrative Court
Royal Courts of Justice
Strand, London, WC2A 2LL
( Michael Bimmler instructed by Reece Thomas Watson Solicitors) for the Claimant
( Naomi Parsons instructed by the Government Legal Department) for the Defendant
Hearing date: 2 November 2022
The Parties
The Claimant is in prison serving an indeterminate prison sentence.
The interested party is the Parole Board which has directed that the Claimant be released from prison.
The Defendant is the Secretary of State for Justice who is responsible for arranging the Claimant's release from prison pursuant to the Parole Board's decision.
Bundles
For the hearing I had a main bundle, a supplementary bundle, an authorities bundle and skeleton arguments from both counsel.
The Issues
This is a judicial review claim brought by the Claimant against the Defendant on the grounds that the Defendant has acted unlawfully in failing to arrange his release pursuant to a direction of the Parole Board made on the 28th of February 2022. That direction was issued on the understanding that a risk management plan to protect the public would be put in place and the direction included various conditions one of which was for the Claimant to live overnight at an address approved by his supervising officer.
In the claim form the Claimant sought a mandatory injunction that he should be released from prison; a declaration that he had been unlawfully detained; common law damages and damages for breach of Article 5 of the European Convention on Human Rights and costs.
By lunchtime on the day of the hearing the Defendant had offered an undertaking to release the Claimant from prison by the 16th of November 2022. That undertaking involved the Defendant agreeing to withdraw an application the Defendant had made on the 30th of September 2022 to the Parole Board to set aside its decision. The Claimant accepted the undertaking and so the first ground of relief was settled.
This judgment concerns two issues: (1) whether permission should be granted for the judicial review and (2) whether the Claimant has been unlawfully detained in prison as a result of the Defendant's failure to arrange the accommodation and support services required by the Parole Board in their decision as soon as was reasonably practicable.
8 months and five days have passed since the Parole Board directed that the Claimant should be released from prison by the Defendant and yet he is still in prison.
Pleadings and Chronology
The Claimant wrote a pre-action protocol letter to the Defendant on the 10th of August 2022 alleging unlawful detention and failure to release him from prison in breach of the duty to do so. The Defendant's response letter dated the 31st of August 2022 relied upon three matters. Firstly, that the accommodation in the risk management plan presented to the Parole Board had been withdrawn. Since then the Defendant asserted that it had sought new accommodation. Secondly, that the Claimant had assaulted a member of prison staff on the 5th of August which had delayed matters because the second supported accommodation provider which the Defendant had found had withdrawn as a result of the alleged assault. Thirdly, the Defendant asserted that the Secretary of State for Justice (SSJ) could not release the Claimant until accommodation and support had been put in place and that the delay in doing so was not unreasonable.
The claim form was issued on the 6th of September 2022 and in that the Claimant sought expedition for the claim. In the detailed Statement of Grounds the Claimant set out the relevant law including Sections 28 and 34 of the Crime (Sentences) Act 1997 ( CSA 1997) and Article 5 of the European Convention on Human Rights (ECHR), the right to liberty. The first ground asserted was unreasonable delay. The Claimant submitted that Section 28 of the CSA 1997 imposed an absolute duty to release subject only to the caveat that the Defendant may take a reasonable time to put any Parole Board conditions in place before release. It was asserted that domestic public law required the Defendant to operate a proper system and to act reasonably in putting in place accommodation and supervision under the Parole Board's risk management plan. Overall the Claimant asserted that the delay was Wednesbury unreasonable and pointed out that the information provided by the Defendant to the Claimant relating to his release plan had been inadequate. No explanation had been given as to how the first supervised accommodation had fallen through; no adequate steps had been taken to arrange alternative supported accommodation; the Defendant had failed to engage with the Claimant's solicitors between March and August 2022 and the Defendant's own Community Offender Manager (COM), Kathryn James-Moore (KJM) had herself described the Claimant's detention as “unlawful” in August. In addition, the Claimant alleged that the professional meetings arranged to implement the Defendant's duty had been unreasonably delayed.
In the second ground of claim the Claimant asserted a breach of Article 5 of the ECHR because the failure to release the Defendant was arbitrary and unlawful.
By an order dated 14th September 2022 Mr Justice Cotter required the Defendant and the Interested Party to file Acknowledgements of Service by the 26th of September and ordered that permission was to be decided within 14 days after the filing and service of those.
The Defendant served Summary Grounds of Defence at the last minute on the 26th of September 2022. Two overall points were made. The first was that the Claimant's release direction from the Parole Board was subject to a risk management plan which required the provision of supported accommodation. The Defendant asserted that the Defendant had not been able to find supported accommodation. The Defendant relied on section 256 AZC of the Criminal Justice Act 2003 which came into force in June of 2022 and required the Defendant to give effect to the Parole Board's direction “ as soon as reasonably practicable in the circumstances including, in particular, the need to make arrangements in connection with any conditions that are to be included in the person's licence…”. I rule that that section only applies to determinate sentences so did not apply in this case but another similar section does apply.
The Defendant acknowledged that the delay in the Claimant's case had been “significant” but asserted that it was not unreasonable. The Defendant asserted that the Claimant had intensive accommodation needs and that there was limited availability of accommodation. The Defendant pleaded that the first supported accommodation which was proposed by the Defendant to the Parole Board had fallen through on the 25th of March 2022 when the landlord had been “unresponsive attempts by the service provider and had left the country” (sic). The SSJ pleaded that alternative accommodation had been identified “on the 1st of August 2022” subject to cost but that the Claimant's conduct had led to that being withdrawn. The Defendant asserted that the SSJ had acted diligently and the claim for delay was unarguable.
By an order dated 13th October 2022 Mrs Justice Foster ordered that the judicial review claim should be heard in a rolled up hearing dealing with permission and secondly, if permission was granted, the substantive judicial review. Bundles were ordered to be filed 14 days before the hearing and a skeleton argument 10 days before the hearing from the Claimant and five days before from the Defendant.
The claim was listed for hearing on 2 nd November 2022 so the bundles should have been filed no later than the 19th of October.
The late evidence
Disclosure is not required in judicial review claims unless the Court orders it but it must have been clear to the Defendant from the pre-action protocol letter and the Detailed Grounds that the Defendant's system for satisfying the Parole Board's decision to release the Claimant and the supported accommodation requirements and risk management requirements involved in the decision needed to be explained and evidenced. In particular the Defendant's actions to fulfil their duty between 28th February and the date of the hearing needed to be set out in evidence.
There is a duty of candour which all parties are bound by in judicial review claims. So in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35, at para 183–184 Lord Mance ruled as follows:
“183. A respondent's duty of candour in judicial review proceedings is summarised in Fordham's Judicial Review Handbook, 6th ed (2012), p 125:
“A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted … A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so.” 184. In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at [50] Laws LJ said, “there is a … very high duty on public authority respondents, not least central Government, to assist the court with full and...
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