CO/1426/2003 
Neutral Citation Number: [2003] EWHC 1512 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 8th May 2003
 B E F O R E:

MR JUSTICE MAURICE KAY 

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THE QUEEN ON THE APPLICATION OF ANTHONY EDWARD MARTIN
Claimant

-v- 

THE PAROLE BOARD
Defendant 
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(Computer-Aided Transcript of the Palantype Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR B BHALLA (instructed by Messrs Saunders & Co, London WC2R 3EE) appeared on behalf of the Claimant
MR P SAINI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
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J U D G M E N T 
(As approved by the Court) 
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Crown copyright©
 
1.	MR JUSTICE MAURICE KAY:  On the night of 20th August 1999 a team of burglars travelled by car from Newark to Emneth Hungate in Norfolk.  They included Freddie Barras and Brendon Fearon.  A third man drove the car.  Near the village of Emneth Hungate they embarked upon the burglary of a farmhouse known as Bleak House.  It is an isolated and dilapidated property and it is the home of Mr Anthony Martin.  He lived alone and was in bed when the burglars arrive.  He was disturbed by their arrival.  Although what happened next has always been the matter of some dispute, it is clear that Mr Martin shot both Barras and Fearon with a 12-bore Winchester pump-action shotgun.  Barras died from the injuries so inflicted.  Fearon was injured, but managed to escape.  In due course Mr Martin stood trial in the Crown Court at Norwich.  He was convicted by a majority of ten to two of the murder of Barras and of wounding Fearon with intent to cause him grievous bodily harm.  He was acquitted of the attempted murder of Fearon.  He had previously pleaded guilty to the possession of a firearm without a certificate.  He was sentenced to life imprisonment for the murder, with concurrent sentences of 10 years' imprisonment for wounding with intent and 12 months for the firearms offence.  That was on 19th April 2000.
2.	On 30th October 2001 the Court of Appeal Criminal Division allowed Mr Martin's appeal against conviction on the charge of murder, substituted a conviction for manslaughter on the ground of diminished responsibility, sentenced him to five years' imprisonment for that offence and reduced the sentence for wounding with intent to one of three years concurrent.  I propose to say no more about the detailed evidence at the trial.  It is referred to in the judgment of the Court of Appeal [2001] EWCA Crim 2245.  However, the following points are relevant for present purposes.  First, Mr Martin's defence at trial had been self-defence.  As the Court of Appeal observed, for the jury to have convicted him they must have either not believed his evidence that he acted in self-defence or have concluded that he used an unreasonable amount of force.  Secondly, the expert evidence which persuaded the Court of Appeal to quash the murder conviction and substitute manslaughter had not been before the jury.  It comprised evidence from Dr Philip Joseph, a consultant forensic psychiatrist, and from Jackie Craissati, a forensic and clinical psychologist.  Thirdly, as the jury had acquitted Mr Martin of attempted murder in relation to Fearon, it is to be presumed that the specific intent which he had when shooting Barras and Fearon was to cause grievous bodily harm rather than to kill.
3.	Once the murder conviction was quashed and the total sentence became one of five years' imprisonment, Mr Martin became the subject of the early release provisions of Part III of the Criminal Justice Act 1991.  He is entitled to be released on licence at the two-thirds point which falls on 28th July 2003.  However, if at any stage after reaching the halfway stage of the sentence the Parole Board were to recommend his release on parole, the Secretary of State would be bound to release him on licence.  That is the result of the Criminal Justice Act sections 35 and 50 and The Parole Board (Transfer of Functions) Order 1998.  By a decision dated 16th January 2003, a panel of the Parole Board found Mr Martin not suitable for parole.  It gave the following reasons:
"Mr Martin is serving five years for manslaughter, with three years concurrent for GBH and one year concurrent for possession of a firearm without a certificate.  A variation in conviction and sentence by the Court of Appeal in March 2002 replaced life imprisonment and a ten year concurrent sentence.  Mr Martin fatally shot a sixteen year old youth and seriously injured another young man who had broken into his farmhouse.  The weapon used was a pump action shot gun and a large quantity of ammunition was later found around the house and in the outbuildings.
Mr Martin had been the victim of a burglary in May 1999 at which time it is reported he told the police that if the burglars returned he would blow their heads off.  Mr Martin had owned a number of firearms until his shotgun licence was revoked in 1994.  He had fired at the vehicle of a man, who with his children, he had encountered on his land.  The dossier refers to Mr Martin agreeing that there have been further incidents where he had inappropriately used a firearm.
In prison he is described as getting on well with staff and other prisoners.  There have been no adjudications.  He has sought to improve his Maths, History, English and Art.  He has not undertaken any cognitive based or offending behaviour courses.  Mr Martin's PED was 26th September 2002 and at first he turned down the opportunity to apply for parole.  The reports from the probation service refer to the immense media interest in the case and to the possibility that this attention has reinforced Mr Martin's views about taking the law into his own hands.  It is also stated that Mr Martin takes little responsibility for his actions and believes that the victims were to blame for what happened.
Neither probation officer recommends release on parole and the panel agreed with this assessment.  Mr Martin has refused to undertake any offence focused work on release and is equivocal about meeting reporting requirements and any conditions which might be imposed.  Under these circumstances, and given Mr Martin's downplaying of the seriousness of the offences for which he was convicted the risk of further offending by Mr Martin is not manageable in the community.  It remains too high for parole to be granted.
It is Mr Martin's intention to eventually return to his farm.  He has been encouraged to consider possibilities of living abroad for a while and the file contains a letter from a charity, the POW Trust, supporting such a proposal.  The Board, however, concluded that there are no exceptional compassionate circumstances (as required under Part IV of Probation Circular 52/97) to justify this course of action."
4.	On 31st January 2003 solicitors instructed by Mr Martin wrote to the Parole Board, enclosing the judgment of the Court of Appeal and the reports of Dr Joseph and Miss Craissati, none of which had been before the panel on 16th January, expressing various criticisms of the panel's reasoning and inviting reconsideration by a differently constituted panel.  The Parole Board's Head of Policy and Casework replied by letter of 7th February.  He pointed out that Mr Martin and anyone representing him had had ample opportunity to make representations and provide material to the Parole Board before the decision.  He also responded to the detailed criticisms before concluding:
"In summary, my view is that there are no grounds in your letter for re-considering the Board's decision in this case."
5.	On 14th February the solicitors wrote again and were again critical of the Parole Board having proceeded to a decision without sight of the reports which had been before the Court of Appeal or the judgment of that court, including the part dealing with sentence.  This prompted a further reply from the same official, dated 25th February 2003, which stated:
"... in the interests of completeness, I have arranged for the members of the panel that considered Mr Martin's case to see the reports of Ms Craissati and Dr Joseph.  They have now done so and are agreed that had they been aware of this material it would not have affected the decision in any way.
There remains no justification whatsoever for re-considering the Board's decision in this case."
6.	On 13th March the solicitors lodged the present application for permission to apply for judicial review, seeking to challenge the decision of 16th January and the refusal to reconsider, said to be evidenced by the letter of 25th February.  On 2nd April Silber J refused permission on the papers.  The case then came before me on 6th May as an oral renewal hearing.  Having read the skeleton arguments, I suggested to counsel that it might be appropriate to convert the hearing into a single rolled-up hearing, at which the application could be considered substantively if permission were to be granted.  Counsel on both sides readily agreed, because if permission were to be granted and if Mr Martin were to succeed at a subsequent substantive hearing in obtaining an order that the Parole Board should reconsider the matter, it might be perilously close to the non-parole release date of 28th July before finality was achieved.  Fortunately, time became available for me to hear the case into a second day.
7.	On behalf of Mr Martin, Mr Bitu Bhalla seeks to challenge the decision of the Parole Board on a number of grounds.  To some extent they overlap.  I shall deal with them sequentially.
8.	Before I do so, I wish to say something about the nature of these proceedings.  I do so because of the public interest in them and because I discern from some of the media coverage of the hearing some misunderstanding as to their nature.  It is not for this court to decide whether or when Mr Martin or any other prisoner should be granted parole.  In relation to Mr Martin and other long-term prisoners that role is vested by statute exclusively in the Parole Board, which then has to operate within the rules which bind it.  By passing a particular long-term sentence -- that is to say, one of four years or more -- the court dictates when parole may first be considered, but it is not party to the decision when it is considered.  In these proceedings, Mr Martin is not asking this court to release him, as some reports have suggested.  He is seeking to establish that the Parole Board's decision was legally flawed and an order that the Parole Board, no one else, should reconsider his application for parole.  I now turn to the grounds of challenge.
Ground 1: failure to consider the reports of Dr Joseph and Miss Craissati or the judgment of the Court of Appeal 
9.	By section 32(6) of the Criminal Justice Act the Secretary of State is empowered to give the Parole Board directions as to the matters to be taken into account by it in discharging its functions under the Act.  He did so in 1996.  The directions read as follows:
"1.  In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the offender would otherwise be in prison and whether any such risk is acceptable.  This must be balanced against the benefit, both to the public and to the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future.  The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release.
2.  Before recommending early release on licence, the Parole Board shall consider whether:
(1) the safety of the public will be placed unacceptably at risk.  In assessing such risk the Board shall take into account:
(a) the nature and circumstances of the original offence;
(b) whether the prisoner has shown by his attitude and behaviour in custody that he is willing to address his offending behaviour by understanding its causes and its consequences for the victims concerned, and has made positive effort and progress in so doing;
(c) in the case of a violent or sexual offender, whether the prisoner has committed other offences of sex or violence, in which case the risk to the public of release on licence may be unacceptable;
(d) that a risk of violent or sexual offending is more serious than a risk of other types of offending; 
(2) the longer period of supervision that parole would provide is likely to reduce the risk of further offences being committed; 
(3) the prisoner is likely to comply with the conditions of his licence; 
(4) the prisoner has failed to meet the requirements of licensed supervision, temporary release or bail on any previous occasion and, if so, whether this makes the risk of releasing him on licence unacceptable;
(5) the resettlement plan will help secure the offender's rehabilitation; 
(6) the supervising officer has prepared a programme of supervision and has recommended specific licence conditions."
10.	When the panel considered Mr Martin's case on 16th January, it had before it the parole dossier which contained two pre-trial summaries prepared by the police or the prosecution; an opening note prepared by counsel for the prosecution; some formal court documents from the Crown Court and the Court of Appeal; a transcript of the sentencing remarks of the trial judge; a prison parole assessment; reports from two probation officers; a cursory report from a prison medical officer; a report from the independent Parole Board member, who interviewed Mr Martin; Mr Martin's comments upon it; and some written representations from the POW Trust, a charity that was looking after his interests.  It also had before it a document referred to as "a late confidential report", the existence but not the nature or content of which was made known to Mr Martin.  However, it did not have before it the judgment of the Court of Appeal or the reports of the expert witnesses who had provided the material upon which the conviction was reduced from one of murder to one of manslaughter by reason of diminished responsibility.  The case for Mr Martin is that this was a crucial omission because the Parole Board is bound by the Secretary of State's direction to take into account "the nature and circumstances of the original offence" and, as the original offence was now one of manslaughter and not murder, it was important for the Parole Board to inform itself about the nature and circumstances of the manslaughter, including the basis of the diminished responsibility.
11.	On behalf of the Parole Board Mr Pushpinder Saini does not concede that there was any legal error in the Board considering Mr Martin's case on the basis of the material that was before it and without sight of the judgment of the Court of Appeal or the reports of Dr Joseph and Miss Craissati.  He observes that Mr Martin had had notice of the material that was before the Board and he and anyone advising him had repeated opportunities to supplement it.  If he had wanted the Board to consider these documents, he could have required it to do so.  I should add that at the material time Mr Martin's interests were being looked after not by a solicitor but, as I have just observed, by a charity.
12.	I do not accept Mr Saini's primary submission on this point.  The task of preparing a dossier for the Parole Board is carried out in the first instance by a parole clerk, who is an employee of the Prison Service working within the establishment where the prisoner is held at the time of making his application for parole.  In the performance of his task, the parole clerk is governed by the Prison Service Order 6000, which states that the dossier must include, where applicable, a number of documents, including a transcript of the court's sentencing remarks and any pre-sentence medical or psychiatric report.  In the present case the dossier included the sentencing remarks of the trial judge who had sentenced him for murder, but no pre-sentence medical or psychiatric reports because, at the time when Mr Martin was sentenced for murder, there were no such reports before the trial judge.  In my judgment this was an error.  Whether one attributes it to the failure of Prison Service Order 6000 to deal expressly with the situation which arises when the Court of Appeal substitutes a lesser conviction and a lower sentence or to the parole clerk taking an unduly narrow approach to the provisions of the Order, the fact of the matter is that when Mr Martin applied for parole he was serving a sentence of five years' imprisonment for manslaughter by reason of diminished responsibility.  It was a sentence that had been passed not by the trial judge but by the Court of Appeal.  Moreover, when the Court of Appeal passed the sentence, the reports of Dr Joseph and Miss Craissati were in reality pre-sentence medical or psychiatric reports and were treated as such by the Court of Appeal.  In passing sentence the Lord Chief Justice said:
"... in approaching the question of sentence we have to assume the opinion expressed by Dr Joseph supported by Miss Craissati is correct.  It however remains the position that Mr Martin used a firearm which he knew he was not entitled to have in a manner which was wholly unjustified.  There can be no excuse for this, though we treat his responsibility as being reduced for the reasons explained by Dr Joseph. 
There is also no doubt that the two men who broke into Mr Martin's house were intent on committing burglary.  Mr Martin was entitled to use reasonable force to protect himself and his home, but the jury were surely correct in coming to their judgment that Mr Martin was not acting reasonably in shooting one of the intruders, who happened to be 16, dead and seriously injuring the other. 
Any shortcomings on the part of the police could not justify Mr Martin taking the law into his own hands.  We understand how frustrated Mr Martin may have been and in deciding what sentence is appropriate we take into account not only the evidence of his medical witnesses, but also the conduct to which he had been subjected.  We also take into account that we must make it clear that an extremely dangerous weapon cannot be used in the manner in which it was used by Mr Martin that night."
A little later:
"In view of the time Mr Martin has already spent in custody, within about a year he will be eligible for consideration for parole."
13.	In my judgment this and the two reports ought to have been included in the dossier at the outset.  It is important that parole clerks include the relevant material from the Court of Appeal when there has been a change in the offence or the sentence between the date of trial and the application for parole.  Moreover, I take the view that the Parole Board itself erred by not seeking to obtain these documents.  It was plain to see that what was before the Board was a very different situation from that which had obtained at the conclusion of the trial.  The material before the Board told it virtually nothing about the basis of the diminished responsibility which, as the Board knew or ought to have known, always rests on psychiatric evidence.  In R v Parole Board, ex parte Gerald Oldfield Davies [1996] EWHC Admin 279, Collins J said at paragraphs 48-50:
"I am left with a real concern that a failure to make enquiries has resulted in this case in unfairness. 
In the absence of any explanation from the Board as to why they felt it right to proceed without such investigation, I take the view that unfairness has been established by the applicant. I should add that [counsel] relies on the absence of any request to the Board by the applicant for any particular course of action.  Of course, that is a matter which has to be taken into account.  ...  But here we have a prisoner, not represented, who is perhaps not fully aware of the procedures of the Board or of his rights in that connection.  The Board obviously has to bear in mind the position in relation to a prisoner having to make his own representations.  It seems to me that, having regard to section 32(3), there is an independent duty on the Board to consider in each case whether it needs any further information, or whether it needs to adopt any particular form of procedure."
Mr Saini does not dispute this principle but he seeks to distinguish that case from this on the facts.  Notwithstanding the factual differences, I consider that the Parole Board erred by failing to obtain the relevant material from the Court of Appeal.  Its potential relevance was or ought to have been obvious.  To that extent a legal error has been identified.  However, that is not the end of the matter.
14.	I have already recounted how, after the Parole Board's initial decision, Mr Martin's solicitors came on to the scene, provided the missing documentation and sought a reconsideration.  At first, this was refused, the Head of Policy taking the view that there were no grounds for one.  In his later letter dated 25th February he indicated that the three members of the panel had now seen the two reports and were agreed that, if they had been aware of them at the time of the original decision, it would not have affected that decision in any way.  Because I detected a lack of clarity in this letter I invited further clarification by way of a witness statement following the hearing.  This has now arrived.  It seems that what happened was that the Head of Policy wrote to the three panel members enclosing the reports and asking whether they would have made any difference to the decision if they had been available at the time.  Two members (the Chair and the lead member) discussed the matter on the telephone and agreed that the reports would have made no difference.  The third member was otherwise engaged at that time and did not respond before the short deadline which had been imposed for good reason by the Head of Policy.  He telephoned subsequently, also stating that the reports would have made no difference.  It seems that this telephone call postdated the letter of 25th February, which to that extent was in factual error.  Although Mr Bhalla is deeply critical of that process and complains of a lack of sufficient reasons having been given for the view that the reports would have made no difference, I accept Mr Saini's submission that the reason was obvious -- they did not significantly impact upon the crucial issue of future risk in any way that might have assisted Mr Martin.
15.	The question which arises is whether this later consideration of the reports and the view to which it gave rise can be said to have remedied the original legal error of proceeding to a decision without consideration of this material.  I do not consider that what took place was a model of procedural purity but I am satisfied that it was not procedurally unfair.  It seems to me that, whilst it may not have been a reconsideration in the formal sense, it involved a conscientious consideration of the material and a unanimous, tenable -- indeed (for reasons which I shall state later) inevitable -- conclusion as to its significance.  Accordingly, the initial legal error was remedied.
16.	If I were wrong about that, there would still remain the issue of whether the initial legal error and the failure to remedy it should result in the quashing of the decision not to grant Mr Martin parole.  The granting of such an order is a matter of discretion.  Mr Saini submits that a quashing order ought not to follow because on any further reconsideration by the Parole Board the result would undoubtedly be the same.  Although that submission enshrines a principle well-known in this jurisdiction, it behoves me to approach it with special care in a case involving the liberty of the subject.
17.	Is there anything in the judgment of the Court of Appeal and the sentencing remarks of that court which might have resulted in a different decision?  In my judgment there is not.  At one point Mr Bhalla submitted that the Lord Chief Justice's final words, added after the announcement of the sentences -- "within about a year he will be eligible for consideration for parole" -- imply a judicial view favourable to early parole.  However, I am sure that that is not so.  Sentencing judges almost invariably say something about the point in a sentence when a person will or may be released (in the case of a short-term prisoner) or will be eligible for consideration of release (in the case of a long-term prisoner).  Indeed, in the Crown Court they are required to do so.  It seems to me that the Lord Chief Justice was doing no more than deferring to that practice.  I say that in particular because parole is exclusively a matter for the Parole Board and it is very unlikely that the Lord Chief Justice would trespass into its territory.
18.	The next question is whether there is anything in the reports of Dr Joseph and Miss Craissati which might have resulted in a different decision.  They were instructed in relation to the appeal with a view to considering diminished responsibility.  Dr Joseph diagnosed a longstanding personality disorder, the most likely category being paranoid personality disorder, which arose from inherent causes and which, at the time of the offence, was accompanied by depression.  Mr Martin is more likely to have believed that his life was in danger than a person who does not have a paranoid personality disorder.  Miss Craissati's report was to like effect.  Neither addressed the question of future risk.  Both reports illustrate the reactive nature of Mr Martin's violence but that is plain from his absence of previous convictions and the reports of the probation officers which were before the Parole Board.
19.	I have come to the conclusion that, whilst all this material would have assisted the Parole Board in understanding Mr Martin, in truth it provides no material capable of occasioning a different conclusion on the crucial issue of future risk.  I therefore consider that even if the initial legal error had not been cured by the further consideration, I would not have made a quashing order as a matter of discretion.
20.	I now turn to the remaining grounds of challenge, none of which seems to me to be persuasive.
Ground 2: assessment of risk 
21.	The 1996 Directions have as their primary consideration "the risk to the public of a further offence being committed at a time when the offender would otherwise be in prison and whether any such risk is acceptable."  The Parole Board concluded that the risk of further offending on the part of Mr Martin "is not manageable in the community" and "remains too high for parole to be granted".  The challenge to that conclusion is that it was irrational.  In particular, the Board failed to have proper regard to the fact that the risk related only to reactive violence directed against a criminal who invaded Mr Martin's property or used serious violence against him in his own home.  Mr Bhalla submits that the likelihood of such things happening in the time before entitlement to automatic release is negligible; that the risk is therefore acceptable; and that any conclusion to the contrary is irrational.
22.	In my judgment this ground of challenge is unsustainable.  The Board placed strong reliance upon the assessments contained in the reports of two probation officers whose input was in the context of this parole application.  The first, Annette Stewart, expressed concern and referred to:
"... his unwavering belief that he is the one who has been wronged in the first instance by the burglars in the second by the Criminal Justice System and thirdly that he also disregarded a previous restriction on the use of guns.  In all these circumstances I believe Mr Martin must be assessed as continuing to pose a risk to anyone seeking to do him or his property any harm."
She also attached significance to past incidents involving the inappropriate use of firearms, including the one five years prior to the commission of this offence.  The second probation officer, Chris Dewsnap, stated:
"Mr Martin demonstrates no remorse for his behaviour or victim empathy.  He holds very strong views that he is perfectly justified in protecting himself and his property even in the extreme manner displayed in the commission of this offence.  He clearly holds the view 'An Englishman's home is his castle' and he is entitled to take any steps necessary to secure that.  ... 
... Mr Martin does not believe he has done anything wrong and as a result has refused to undertake any offence-focused work.  In my opinion Mr Martin's entrenched views make him a high risk of behaving similarly in future."
23.	The views of these probation officers were based in each case on two lengthy interviews.  There is nothing on the face of the reports which required the Parole Board to reject them.  In my judgment the Board was entitled to place reliance upon them when assessing risk.  Unfortunately, the possibility that Mr Martin might again be the victim of crime is not as remote as Mr Bhalla suggests and, although he points to some comments by Mr Martin suggesting that he would not react in the same way again, there was sufficient material before the Board to justify its conclusion.
Ground 3: remorse and the recognition of guilt: the Zulfikar point 
24.	It is clear from the passages in the reports of the probation officers to which I have just referred, that they were concerned about Mr Martin's absence of remorse and his failure to acknowledge the criminality of what he had done.  Although Mr Bhalla seeks to attack the factual basis of these concerns by cherry-picking some of Mr Martin's utterances, they were clearly justified in the light of what Mr Martin had said and the attitude he had manifested in the interviews.  Undoubtedly, the Parole Board relied upon the findings of the probation officers.  The case for Mr Martin is that it erred by so doing.  This submission is based upon the line of authorities beginning with R v Secretary of State ex parte Zulfikar (21st July 1995), in which Stuart-Smith LJ said:
"But there may be a variety of reasons why a prisoner will not accept his guilt.  He may genuinely have been wrongly convicted.  Although inwardly he may know he is guilty, he may be unwilling to accept that he has lied in the past or confront loss of face in accepting what he has hitherto denied.  Where, for example, the offence is one of specific intent, he may genuinely have persuaded himself that he did not have the necessary intent.  Such a man may in all other respects be a model prisoner.  He may have behaved impeccably in prison, occupied his time constructively and shown himself trustworthy and reliable with a settled background to which to return.
Should he be denied parole solely because of his attitude to the offence?  In the majority of cases I think plainly not.  Each case will depend upon its own circumstances and this Court should avoid trying to lay down principles which may well not be universally applicable.  While I have no doubt that para 1.3(b) should be taken into account in all cases, the weight to be attached to it will vary greatly.  At one end of the scale is the persistent offender, in particular the persistent sex offender, who refuses to accept his guilt in the face of clear evidence and is unable to accept that he has a propensity to such conduct which needs to be tackled if he is not to offend again.
In such a case it may well be a determinative consideration.  At the other end of the scale is the first offender, where the motivation for the offence is clear and does not point to a likelihood of re-offending.  In the majority of cases it is unlikely to be more than one of many factors to which undue weight should not be given."
In R v Secretary of State for the Home Department, ex parte Zulfikar (No 2) (1st May 1996), Buxton J referred to those passages, adding:
"... the Parole Board would be in error if it denied a person parole on the sole ground, or I venture to say, the dominating ground of his attitude to the offence."
The same point arose in R v Parole Board, ex parte Oyston, Court of Appeal, 1st March 2000, in which Lord Bingham of Cornhill CJ said, in paragraph 43:
"In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole."
25.	Mr Bhalla submits that the reasoning of the Parole Board in the present case, properly construed, yields the conclusion that it fell into that trap.
26.	In my judgment, this submission must fail.  Cases such as Zulfikar and Oyston concerned men convicted of offences which at all material times they denied committing.  Zulfikar denied that it was he who had set fire to his business premises and Oyston maintained that the complainant had consented to any sexual activity.  Neither was claiming an entitlement to act as the prosecution case asserted and established.  Mr Martin, on the other hand, accepts that he shot the burglars, killing one of them, and, as recounted to the probation officers, continues to claim an entitlement to act as the prosecution case asserted and established.  Where a man continues to claim the right to do that which the law proscribes as the gravest of crimes, a decision-maker charged with the task of assessing future risk cannot be criticised for attaching very substantial significance to that fact.  The circumstances of the present case are highly unusual.  As Stuart-Smith LJ observed in Zulfikar, each case will depend on its own circumstances.  It cannot be said that here the Parole Board relied solely on Mr Martin's lack of remorse.  It also attached significance, permissibly in my view, to the 1994 incident and other matters.  I find no legal error in the very substantial weight which the Board accorded to Mr Martin's attitude in relation to his lack of remorse, his continuing contention that the shootings were justified or his refusal to undertake post-release offence-focused work.  On the material before it, the Board was entitled to conclude as it did on these issues.
Ground 4: media interest 
27.	It is undoubtedly true that there has been and continues to be intense media and public interest in Mr Martin's case.  The Parole Board and those who reported to it were obviously mindful of that.  In its reasons the Parole Board observed that the probation reports: 
"... refer to the immense media interest in the case and to the possibility that this attention has reinforced Mr Martin's views about taking the law into his own hands."
Essentially, the submission on behalf of Mr Martin is that the media interest has not been of his making and that it was erroneous to hold it against him.  I find nothing in this ground of challenge.  If a man holds heterodox views about his right to take the law into his own hands when his "castle" is invaded or if he resents being criminalised for what he has done, it seems to me to be a matter of common sense that there is a possibility that such views or resentment will be further nourished by sympathetic media and public interest.  It may sustain his belief that he has done nothing wrong.  To the extent that the Parole Board adopted these views, it committed no legal error.
Ground 5: personal circumstances, home, family and community ties 
28.	The next ground of challenge asserts that the omission from the Parole Board's reasons of any mention of Mr Martin's personal circumstances such as his age and poor health and the lack of his mention of his family and community ties suggest that these matters were not properly considered in the balancing exercise.  Moreover, the failure of the probation officers to visit the area and assess such factors disabled the Parole Board from doing its task properly.  I am unpersuaded by this.  Mr Dewsnap's report explains why no home visit took place -- it would serve no purpose in view of the fact that Mr Martin lived alone in Bleak House until his receipt into custody.  Moreover, there was material before the Board in the form of an assessment from a senior prison officer which referred to Mr Martin's good family relationships and his friends and neighbours within the local farming community.  It also referred to his health problems (arthritis and thrombosis of both legs).  The absence of reference to these matters in the reasons does not mean that they were not properly considered.  Any weight to be accorded to them was a matter for the Board.
Conclusion 
29.	It follows from what I have said that although the Parole Board erred in proceeding to its initial decision without consideration of the judgment of the Court of Appeal and the reports of Dr Joseph and Miss Craissati, for the reasons I have given I decline to grant a quashing order on the basis of that error.
30.	As a matter of procedure, I grant permission in relation to ground 1 and have disposed of it substantively.  The remaining grounds are, in my judgment, unarguable and I refuse permission in relation to them.
31.	I shall now rise and continue in private for a short time in which I shall provide a confidential annex to this judgment in relation to the document which was disclosed on the first day of the hearing.  I have heard submissions about that document in private and shall give judgment upon it in private because I believe that to be in the interests of justice.  However, it is appropriate to state openly that I have found that it does not materially advance Mr Martin's application for judicial review.  In fairness to Mr Martin I ought also to observe that nor does it contain anything that reflects adversely upon him personally.  When I have completed my task in private I shall resume in open court to hear any submissions on matters of costs.
(The court adjourned in private)
(Judgment given in private)
(The court resumed in open court) 

32.	MR JUSTICE MAURICE KAY:  Yes.
33.	MR SAINI:  The remaining issues, my Lord, are in relation to the consequential orders flowing from the judgment.  I would ask, given that your Lordship has granted permission on ground 1, that the claim be dismissed with costs.
34.	MR BHALLA:  My Lord, so far as our position is concerned, your Lordship has granted permission to seek judicial review on one aspect of the case.  My Lord, in those circumstances, in relation to the permission application, which was the build up (inaudible) in court to the permission application, the usual rule of course would be that we would be entitled to our costs for that.  But in any event, my Lord, what we respectfully submit to your Lordship is that there is ample reason in this particular proceeding to make an order in these terms.
35.	The position, my Lord, is this.  On a number of occasions that your Lordship has recited in his judgment we have urged the Parole Board to reconsider their position in relation to the reports and other matters.  It would have been a relatively facile thing for them to have done so.  They appear to have done so on 25th February.  As a matter of form, it was not properly done.
36.	My Lord, the costs that we have generated in looking at the decision of 25th February and seeking leave in relation to that decision.  What has emerged in the proceedings before your Lordship is that your Lordship's view is that in essence they looked at the guts of the matter, but not in a formal hearing.  There was no question that there was a substantial -- or perhaps mistaken, there is (inaudible) representation to Mr Martin and his legal advisers that this matter had been properly considered at a formal hearing, in which case we made the application (inaudible) that there ought to have been sufficient reasons.
37.	My Lord, secondly, my Lord, Silber J, decided that there was no reason to allow any form of permission on papers.  At that stage, my Lord, your Lordship's judgment certainly makes that observation by his Lordship amenable to challenge, and we were duty-bound, my Lord, to appear before your Lordship on that issue and we succeeded partially.
38.	So, my Lord, the suggestion that I give to your Lordship is either some sort of conduct, an assessment as it were of the areas that we won and the evidence needed for that, the costs generated for that, or, my Lord, perhaps in the circumstances the best order that one can make, looking at the variety of circumstances in this case, would be that there ought to be, in this particular application, no order as to costs.
39.	MR JUSTICE MAURICE KAY:  Mr Saini, you are asking for effectively costs in relation to ground 1, are you? 
40.	MR SAINI:  Effectively, my Lord, yes, because I accept that in relation to the parts of the claim that permission (inaudible) it would be exceptional to get, in accordance with practice.
41.	MR BHALLA:  My Lord, the other aspect of this particular hearing is that the secret document, in spite of previous requests by us, was only in fact given to us some few minutes before appearing before your Lordship.  There has been much discussion, in terms of the time spent before your Lordship, in relation to that document.  That time could have been saved almost totally had we achieved that document or an offer to send it to us in a redacted form earlier.
42.	MR JUSTICE MAURICE KAY:  You would no doubt have still made the same submissions upon it.  I thought what you were going to say is that as you did not know what it said until the first morning of the hearing, up until then you were entitled to think that it may just contain pure gold, which in the light of my judgment you can no longer say, and therefore you were justified in hanging on in, if only for that reason.
43.	MR BHALLA:  My Lord, that was going to be my next submission.
44.	So, my Lord, in those circumstances, since the general order, my Lord, is that a permission hearing is the order under Part 54 PD 8.6: 
"Where the defendant or any party does attend a hearing [which your Lordship has characterised as a hearing for permission to seek review], the court will not generally make an order for costs against the claimant."
45.	In those circumstances, my Lord, we respectfully submit had to go outside the general order in that circumstance.  My Lord, we say that taking it in the round and examining the history and nature of where we were, the way we have come before your Lordship today, that the appropriate order would be no order as to costs, in any event the usual order under Part 54 for permission to appeal (sic) at the hearing.
46.	MR SAINI:  My Lord, this is an exceptional course in this case having a rolled-up hearing.
47.	MR JUSTICE MAURICE KAY:  Yes.  They are not that unusual, but to have them precipitated on the morning of the listing is fairly unusual.
48.	MR SAINI:  Indeed.  We would say there has been a substantive hearing on ground 1 of the claim, effectively on all of the issues.  We are certainly entitled to our costs on ground 1.
49.	MR JUSTICE MAURICE KAY:  The circumstances are unusual.  I take into account in relation to ground 1 that the claimant has established a legal error.  I take into account, although I think the importance of that disappeared later on, the circumstances in relation to that fell short of perfection.  Of course perfection is not a requirement of administrative law, fairness is.  I take into account the way in which the case has come on and the other aspects to which Mr Bhalla has referred.  I do take the view, in the exceptional circumstances of this unusual case, the appropriate order in relation to ground 1 is no order as to costs.  In relation to the other grounds, that must also follow because they have not proceeded beyond a permission hearing, and indeed no order is sought in relation to that.
50.	MR BHALLA:  I am grateful, my Lord.  That then raises one other issue, my Lord.  It is always with great diffidence that any counsel seeks on behalf of his client the application I now make to your Lordship.  My Lord, I formally seek from your Lordship permission to appeal to the Court of Appeal.
51.	MR JUSTICE MAURICE KAY:  On ground 1.
52.	MR BHALLA:  On ground 1.
53.	MR JUSTICE MAURICE KAY:  It would not arise in relation to the others. 
54.	MR BHALLA:  Certainly.  My Lord, one of the important aspects, my Lord, is that at stake, as it were, also concerns the effect and circumstances and the consequences of the secret document.  My Lord, we think it is a matter of some important public significance.  You Lordship has seen for himself the amount of interest it has generated.
55.	MR JUSTICE MAURICE KAY:  I found in your favour on the initial point of ground 1.  I found against you a little further down the line.  But ultimately I denied you relief and would have denied you relief in any event as a matter of discretion.  It is always very difficult to challenge that.
56.	MR BHALLA:  My Lord, I seek your Lordship's leave to do so, because of course issues of discretion play in the world of judicial review and the definitions of unfairness and questions of law.  My Lord, we say we have thus raised a very substantial issue of unfairness and raises very substantial issues on what obligation there is on the Parole Board and what the effect of those reports are, and why (inaudible) it should be available.
57.	MR JUSTICE MAURICE KAY:  Mr Saini?
58.	MR SAINI:  My learned friend's principal point is that he succeeded establishing in principle what he wanted to establish.  As my Lord with respect pointed out, my Lord refused any relief on the grounds of discretion.  What my learned friend has to persuade your Lordship is that there is a realistic prospect of persuading the Court of Appeal that looking at those psychiatrist reports taking the view that the Parole Board could have come to a different decision.  We say, with respect, that there is no prospect of showing that.
59.	MR BHALLA:  My Lord, if that is the issue, my Lord, my learned friend may have something of a point on the issue of discretion, but the point goes wider than that.  It goes wider for this reason.  The consequence of your Lordship's decision is that certain mandatory documents which ought, under statutory direction, be placed before the Parole Board, if certain of those documents are not placed before the Parole Board, what consequence does it have it terms of their decision?  I know at no authority at present, except your Lordship's authority, on that issue.
60.	My Lord, it is important for four reasons.  The first reason, my Lord, is that as a matter of practice it is of course of supreme significance to anyone applying for parole, whoever they may be, irrespective of Mr Martin, as to their rights are and what they can expect from the Parole Board.  Because on one view, if your Lordship's judgment is right, it is not far from being a licence for the Parole Board to put in whatever documents they wish to put in and then see what happens as a consequence.  As a matter of public policy, that is something which we believe, my Lord, that the Court of Appeal ought to have an opportunity to give their opinion on, since in effect it cuts at the statutory instrument and the executive guidelines which say (inaudible).
61.	The second aspect, my Lord, is this.  Your Lordship has taken a view, in the exercise of your Lordship's discretion, on the effect and consequence of medical reports, particularly psychiatric conclusions.  In modern day sentencing, in modern day treatment of offenders, your Lordship is more aware than I that these are matters that are taken into some considerable consideration.  Your Lordship's view has been an analytical one which allows your Lordship, in your Lordship's opinion, to suggest there is nothing in the psychiatric make-up which shows anything which would change their mind.
62.	MR JUSTICE MAURICE KAY:  Nothing in the psychiatric reports that would change their mind.
63.	MR BHALLA:  My Lord, that may not be something which would be helpful to that part of the parole process, which in fact -- the statutory process which does demand that they are there.
64.	The third reason, my Lord, is that your Lordship's judgment allows a Parole Board, in any circumstance, to meet together in assessing the nature and circumstances of an offence, where there has been a finding of diminished responsibility, without any reference to the nature of the offence at all.  Because as your Lordship rightly observed during the currency of the proceedings before your Lordship, that there is nothing in the documents before the Parole Board which actually indicated that there was a defence of diminished responsibility.
65.	My Lord, the fourth reason is a reason which we would urge as being one of inconsistency.  Because, my Lord, if the point is that your Lordship, we would suggest quite rightly, affirms again the decision in Oldfield, that decision is a positive obligation by the Parole Board to obtain documents.  Yet then in coming to a decision that those documents may or may not matter, my Lord, is to erode the issues that Oldfield does in fact raise, and to throw again into uncertainty what it is that the Parole Board should (a) present and, secondly, what it is that they must obtain if they then have it and, thirdly and more importantly, so far as a prisoner is concerned, as to what he ought to do in those circumstances.
66.	My Lord, these are important issues of practice and principle and it is appropriate my Lord, since your Lordship's judgment is the first of its sort in relation to documents which would otherwise have been mandatory, that it is that a matter of significance.  It certainly affects my client and also it affects everyone who applies for parole.  One thing that strikes me, my Lord, as a commercial lawyer in the judicial review courts is that on any analysis, certainly this case is an example, what one finds difficult to understand in the administration of justice in this part of the High Court is that the Parole Board does appear to behave in a manner which I have been spectacularly surprised at in preparing important material for very serious litigation. 
67.	My Lord, for all those reasons we would submit, with diffidence, that this is a matter of some public interest with important consequences, and there is no reason why the Court of Appeal ought not to address the issue.  Leave to appeal from your Lordship becomes particularly important for a variety of reasons.  First of all, your Lordship has seen the facts of the case, your Lordship has appreciated some of the problems as the hearing has continued.  The other is the issue of costs and time.  So far as my client is concerned, he is not earning as a farmer today.  Money is not easy.
68.	Also, my Lord, the issue (inaudible) on, as it were, to 28th June.  If the Court of Appeal were to come to the view that they wish a stricter regime than your Lordship's judgment suggests and that these important issues in terms of directions for the probation service are to be put in, because my Lord they may well be, as your Lordship's judgment now stands, there may well be reason to change the very directions that they (inaudible).  Why should not the probation officers under PSO 6000 have the necessity to put in any document?  It all becomes a matter of discretion at the end of the day as to whether this helps or not.  These are all issues.
69.	MR JUSTICE MAURICE KAY:  I would expect that they will change their practice in relation to appealed cases as a result of the judgment.
70.	MR BHALLA:  I follow that, my Lord.  But, my Lord, it is general principles.  My Lord, I would respectfully seek leave to appeal in those circumstances.
71.	MR JUSTICE MAURICE KAY:  Thank you very much.
72.	I shall refuse you permission on the grounds that I do not think you have a real prosect of success, nor do I consider there to be any other compelling reason.  If you wish to take it further, you know where to go.
73.	MR BHALLA:  I am obliged.
74.	My Lord, there is one further feature.  My Lord, in hearings of this sort the purpose of the Treasury Solicitor, the Parole Board and the court is to try, at the end of the day, to achieve the best possible solution in the proper administration of justice.  In relation to Mr Martin's position, one alternative offered by the Parole Board was a renewed application on the basis of the secret document.  My Lord, your Lordship recalls that my difficulty with that was there was a tendency, as I said earlier, for this to go into the ether of bureaucracy.  My Lord, we think it would be helpful if the Treasury Solicitor, who is here today, the Home Office, who plainly by virtue of the circular expressed an understanding of this case, for your Lordship at least to make comment that if such an application were made it would processed timeously and answered timeously at a time which is realistic, bearing in mind 28th June.
75.	MR JUSTICE MAURICE KAY:  I hope that it would be.  Also, as I said in parts of the private judgment, it might, if the application is made, necessitate the obtaining further information from others.  But I have said sufficient about that. 
76.	MR BHALLA:  I am obliged, my Lord.
77.	MR JUSTICE MAURICE KAY:  Very few of the press are still here.
78.	Can I go back to this document?  On the understanding that it emanates from the Home Office and is in the form of a press release, it seems to me that it ought not to have stated any reason why part of the hearing was in private.  To the best of my knowledge there has been no press coverage of the reason.  I am making enquiries as to how it came about that this document made reference to a reason.  I simply express the expectation that the media will observe the terms of the order that they know was made, rather than act upon the contents of the document which in part seemed to me at the moment to have been singularly inappropriate.
79.	MR BHALLA:  My Lord, thank you very much for your consideration.
80.	MR JUSTICE MAURICE KAY:  Thank you.
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