England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		13th June 2007

1. MR JUSTICE BENNETT: The claimant, Wesley Churchman, who is 73 years old, is currently held in an open prison at HMP Kirkham in Preston, Lancashire. By proceedings begun on 26th February 2007 the claimant seeks a declaration that the actions of the defendant are unlawful, and an order requiring the defendant to comply with what are said to be the directions of the Parole Board. On 2nd April 2007 Goldring J gave permission for the proceedings to be brought which, in essence, challenge the alleged failure of the defendant to facilitate the claimant's progression towards release into the community on the grounds that the failure is unlawful and/or unfair and/or in breach of the claimant's legitimate expectations.
2. In 1958, when the claimant was 24 years old, he killed his brother by stabbing him 124 times. He was convicted of murder and sentenced to imprisonment for life. In 1964 when aged 30 years old the claimant was released on licence. In 1973 when he was 39 years old the claimant killed a 78 year old man by stabbing him over 50 times. He was charged with murder. In a statement in February 1973 the claimant said:

"For a long time I have had an urge inside me to kill someone."

He was convicted of manslaughter on the grounds of diminished responsibility and sentenced to imprisonment for life.

3. On 31st October 2001 in its seventh review the Parole Board considered his case again. It did not recommend release but recommended that the claimant be transferred to open conditions, ie, an open prison. The Secretary of State accepted that recommendation. On 18th March 2002 the claimant was transferred to an open prison. Thereafter, he was removed from open conditions and transferred back to a closed prison on 30th May 2003.
4. In February 2005 the Parole Board conducted its eighth review. Release was not directed. The Parole Board recommended a transfer to open conditions. The Parole Board's recommendation indicated an acceptance of the risk assessment in the psychologist's report, namely that the risk had reduced to a level where it was safe to return the claimant to open conditions, but noted that the claimant's "ability to challenge boundaries and be economical with the truth may yet prove his undoing". The Secretary of State accepted the Parole Board's recommendations. On 8th March 2005 the claimant was transferred to HMP Kirkham.
5. By October 2005 the claimant was indicating a desire to resettle in Lancashire. On 21st October the Supervising Probation Officer attended a conference at the open prison where it was agreed to explore the possibility of accommodation in Lancashire. The conference view was that hostels in the Lancashire area might be unwilling to house the claimant given the risk of harm. In the light of those concerns, the Supervising Probation Officer referred the case to a Multi-Agency Public Protection Arrangements Panel, to be convened within the West Midlands.
6. On 23rd November 2005 the claimant's case was discussed at a Multi-Agency Risk Assessment meeting. The Panel gave some consideration to his appropriate MAPPA level. Mr Nigel Byford, Assistant Chief Officer of the defendant, in his statement dated 7th June 2007 explains that there are three MAPPA levels. The appropriate level reflects the extent of multi-agency resources it is considered a case requires, and is not merely a reflection of the assessed risk. There are high risk offenders who do not require the highest level of multi-agency management resources. The panel considered that level 2 appropriate for the claimant.
7. On 29th November two probation managed hospitals in Lancashire were passed the necessary papers. Both indicated that there were no beds available for the claimant.
8. On 2nd December 2005, the claimant's Supervising Probation Officer completed a full OASys assessment. This was based on direct interview with the claimant and reference to prison and probation records. The risk of harm was assessed as "high" to the public in the community. Mr Byford explains in his statement:

"This is categorised as meaning that there are identifiable indicators of risk of serious harm, where the potential event could happen at any time and the impact would be serious; serious harm is defined as 'life threatening and/or traumatic injury from which recovery, whether physical or psychological, can be expected to be difficult or impossible'."

9. In April 2006 the claimant indicated that he was willing to consider a hostel in the West Midlands. On 25th April a record of referral was made to Stonnal Road Probation Hostel, and in May that hostel indicated that no bed was available. A further referral was made to another hostel but that was rejected once the manager of that hostel had considered the issue of risk.
10. In April the case was reallocated to the current Supervising Probation Officer, Mr Sarnjit Cooner. Mr Cooner discussed the matter with his District Manager, Mr Lomas, and it was decided that transfer was not appropriate as responsibility lay with the home area. On 16th June Mr Cooner attended a meeting at the open prison in Lancashire with prison staff. The prison staff indicated that there was little more that could be achieved at Kirkham and that the routes for the claimant were either release through temporary licence arrangements or return to closed conditions.
11. On 5th July 2006 a Multi-Agency Risk Assessment meeting was held in the West Midlands chaired by Mr Lomas. The meeting agreed to further assessments to assist in informing the decision-making progress. A request was made to the Prison Service for updated psychiatric and psychological reports. Particular focus was requested on anger management, personality disorder and detachment. On 1st September 2006 Mr Cooner compiled a progress report on the claimant. The important part of that document appears at pages 96 and 97 in the bundle before me:

"ADDITIONAL INFORMATION

The main objections raised by managers of Approved Probation Hostels are that Mr Churchman's time in custody has seen him, to all intents and purposes, warehoused in Category A, B and C prisons and then transferred to a Category D prison for the purpose of resettling him into the community. At no time has there been sufficient work of appropriate length and intensity aimed at addressing his risk factors. Whilst it is acknowledged that he has managed to maintain secure employment and develop links in the local community, it was felt this is not sufficient evidence to suggest he is now ready to be released, or is at a stage where he should be considered for release on licence. Essentially, it is his internal processes, his thinking, emotions and attitudes that led to the deaths of his two victims and not whether he could be successfully employed in the community. It is these areas which have raised concerns amongst numerous report authors over the years and it is these very concerns that have not been adequately addressed, particularly as far as the hostel managers are concerned.

Furthermore, one can argue that his community links are the people most at risk from the prisoner; for example, both of his victims were known to him. Indeed, this raises the issue of potential victims. Mr Churchman is a man in his seventies and once he is eventually resettled into the community, it is reasonable to assume his peer group is likely to be people of a similar age. If past behaviour can be considered a good indicator of risk, and the prisoner were to commit a similar offence, his next victim would most likely be someone from his peer group, specifically an elderly and vulnerable person. Therefore, any notion that his age is a factor that reduces his risk of harm can also be discounted. The main goal for Mr Churchman is to demonstrate that there is enough evidence to suggest that risk of harm has been reduced adequately to persuade hostel managers that the prisoner is suitable for release into the community. Consequently, further work which focuses specifically on his risk factors is required to facilitate his release. I feel it is worth mentioning that Probation Service hostel managers are experienced with working with the most high risk offenders in the community, and the above comments by them to Mr Churchman's referral reveal that they view him as an exceptional case."

12. On 2nd October a fresh psychological report was prepared by Denise Marsden under the clinical supervision of a Chartered Psychologist, Kevin Rogers. Denise Marsden was a Trainee Forensic Psychologist. Prior to completing her report, Ms Marsden had reviewed the relevant documentation and interviewed the claimant on two occasions for a total of four and a half hours. She had also to exert the psychological tests. In paragraph 6 of her report Ms Marsden concluded as follows:

"Reduction in Risk

(6.1) Mr Sarnjit Cooner (Supervising Probation Officer) informed me that Mr Churchman was assessed as to the probability of reconviction using the Offender Group Reconviction Scale (OGRS). This estimates the probability that offenders with a given history of offending will be reconvicted of a standard list offence within two years of release. It does not define the probability that a particular offender will be reconvicted. Mr Cooner informed me that OGRS estimates that Mr Churchman has a 15% chance of reconviction for any offence within two years of release. It also suggests that there is some risk of reconviction for a violent or sexual offence. It is important to note that OGRS is only one aspect of risk assessment and that many other factors have to be taken into account when assessing the risk of a particular offender.

(6.2) Mr Churchman has been assessed as presenting a risk of harm to others. Particular areas of concern are the historical items of previous violence, personality disorder and supervision failure. It must be remembered however that these are static factors and must be considered alongside dynamic factors that can change over time.

(6.3) The clinical factor of insight causes some concern due to Mr Churchman's limited understanding of why the violence in his index offence was so extreme. It is also a concern that this may have been influenced by Mr Churchman's original stated motivation in the offence, this being an urge to kill. Mr Churchman has not completed any work to address this since his conviction and has since denied that this was a factor in his offending. As it is impossible to determine if this was a factor it can not be known what risk of future offending this may or may not pose.

(6.4) The factor of negative attitudes also raises some concerns due to Mr Churchman not acknowledging his need for support on release and some negativity towards the role of probation. Both these factors are subject to change should Mr Churchman engage in further work to develop his insight into his offences and to engage with Probation around his need to support on release.

(6.5) In terms of risk management Mr Churchman needs to have a release plan so that personal support and employment issues can be planned. This work can be done with Probation prior to his resettlement leaves and release.

(6.6) I would therefore recommend that Mr Churchman remains in custody in open conditions until his release plans have been finalised and he has completed successful resettlement leaves to a hostel. This would also allow for Mr Churchman to build a good relationship with his Supervising Probation Officer. Mr Churchman could undertake further work on understanding his offending behaviour however this would not appear to be of sufficient risk to recommend he remains in custody to do this. This work could be completed on release."

13. On 31st October 2006 the senior manager responsible for the oversight of all approved premises within the West Midlands confirmed that she had looked at the claimant's case and had reviewed decisions taken by hostel managers. She concluded that the claimant was not suitable for approved premises due to the potential level of risk that he represented.
14. On 10th November 2006 Mr Lomas chaired a further MARAP meeting attended by the prison staff from HMP Kirkham. The psychological report to which I have referred was considered. There was considerable discussion, according to Mr Byford's statement in paragraph 25. At the meeting, concerning the claimant's suitability for release on temporary licence, the police officers from the West Midlands Police indicated that they would not support release on temporary licence until further work had been done to reduce the risk that the claimant presented. The defendant's officers also considered it was too dangerous to the public for the claimant to be released on temporary licence. Although the Prison Service did not disagree with the assessment of the claimant's risk as "high", it felt that nonetheless the claimant should go on to be released on temporary licence. However, the predominant view of the meeting was against the claimant's release on temporary licence.
15. After that meeting, Mr Lomas and Mr Byford reviewed matters. They decided that the defendant would not make available a place in approved premises in the West Midlands area for the claimant to reside at on temporary licence by reason of the risk that he would present to the public, including staff and other residents of the hostel. The outcome of that meeting was communicated to the claimant's solicitors in a letter on 5th December 2006 (see pages 145 and 146 of the bundle).
16. On 5th December there was a hearing in front of His Honour Judge Hughes QC as Chairman of the relevant Panel of the Parole Board. He gave directions as follows:

"In the event that no appropriate accommodation is available in the West Midlands probation area, the Probation Service shall, so far as it is practicable to do so, prepare an alternative plan for the purposes, if appropriate, of allowing Mr Churchman the opportunity of being tested by release on temporary licence."

17. The matter came back before the Panel of the Parole Board on 8th February 2007. The claimant was legally represented and told the Panel that the defendants had not provided a hostel to accommodate the claimant as part of any temporary release programme. The Panel noted the direction given by Judge Hughes on 5th December and in its decision, which was communicated by a document dated 13th February 2007 decided as follows:

"(3) The present Panel did not consider they could take the matter any further, other than to point out that the decision to transfer you back to open conditions was made by the Secretary of State (on the Parole Board's recommendation). If the Probation Service or MAPPA consider the Secretary of State's decision is unsafe for security reasons and that your status as a Category D prisoner should be reviewed, this should be taken up with the Secretary of State.

(4) Until this decision is resolved, the present Panel considers it inappropriate to issue further directions because they may be rendered ineffective by subsequent events."

The Panel confirmed that the matter would be relisted in the normal manner. Indeed, I understand that the Panel are to meet again on 28th June 2007.

18. On 9th February 2007 the letter before claim was written by the claimant's solicitors, in which the defendant was requested to "comply with the Parole Board directions and fulfil your legal obligation, to support and resettle offenders into the community. We specifically request you approve Mr Churchman for release on temporary licence and accommodate him at a Probation Hostel."
19. Mr Byford said at paragraph 21 of his statement that Mr Cooner then discussed the direction given by the Parole Board with his line manager and they decided that it was not practicable to prepare an alternative release plan that involved the claimant being released to reside within the community outside the West Midlands area for the same reason that he could not be accommodated within that area: because he presented too great a risk of serious harm to the public if residing within the community on temporary licence.
20. The claimant's grounds, as expressed in the claim form, and the skeleton argument of Ms Krause, counsel for the claimant, do not exactly always make the same points. I thus asked her during her helpful submissions to clarify what her submissions really were. They are twofold. First it was submitted that the defendant usurped the functions of the Parole Board in refusing and/or failing to carry forward any plan for the claimant to be released on temporary licence into the community, particularly a hostel, for the purposes of testing whether the claimant can live in the community with safety, ie, so far as other people are concerned. Second, if I reject that submission, Ms Krause argued that the defendant is frustrating the release process by refusing to do that which it is under a duty to do. Thus, it is submitted by her that, overall, the defendant has acted unlawfully.
21. So far as the first submission is concerned Ms Krause submitted that the defendant is either going behind the risk assessment made in late 2004 which led to the Parole Board's recommendation, accepted by the Secretary of State, to transfer the claimant to open prison, or that by the letter dated 9th January 2007 from the National Probation Service, the defendant was going to refer to the Probation the question of whether the claimant should remain in open prison at all, ie, should he be returned to closed prison. That letter, it should be noted, is not part of the claimant's claim for judicial review and was not, as I understand it, before the judge who gave permission.
22. The relevant parts of the letter to which Ms Krause directs her fire was, first of all, in the first paragraph which reads as follows:

"A level 3 Multi-Agency Public Protection Meeting in relation to this offender took place on 10th November 2006. A decision was made at that point to support the West Midlands Probation Service Board's intent to refer this case back to the Parole Board to review its decision regarding the risk posed and the requirement to progress this man through the temporary release programme. Until this was done the MAPPP did not support the progression of the ROTL to include home leaves to approved premises. This is currently the subject of a judicial review."

On the second page in that letter it was said that the view of the defendant was that further progression of the claimant's release at this stage:

" . . . would be in conflict with the risk assessments referred to above, one of which has been done by prison psychology staff."

It is noted that the matter will come back before the Parole Board in February 2007 and that that would provide an opportunity for the concerns of the defendant to be further discussed along with representations that undoubtedly would be made by the defence solicitor.

23. I do not accept that the letter is the decision impugned in these judicial review proceedings. The decision which is sought to be reviewed is the defendant's decision not to facilitate the testing of the claimant in the community by way of release on temporary licence. Moreover, I do not accept that the letter is anything more than a suggestion that the Secretary of State for the Home Department might consider referring the matter to the Parole Board in relation to the claimant being in open prison. This indeed was considered by the Parole Board on 8th February, and no doubt was the reason why it expressed itself in the way it did.
24. Miss Krause conceded in argument that there had been no direction by the Parole Board to the defendant to act contrary to what the defendant believes to be appropriate for the claimant in the particular circumstances of this case. She conceded, correctly in my view, that the "directions" of the Chairman of the Panel of the Parole Board on 5th December 2006, and of the Panel on 8th February 2007, were more of an invitation to the defendant to do that which the Parole Board expressed.
25. The terms of the Panel's "directions" on 5th December included such wording as "so far as it is practicable to do so" and "if appropriate"; hardly words of a mandatory direction. It is rightly conceded by Ms Krause that this "direction" was not an order within section 28(5)(b) of the Crime (Sentences) Act 1997 directing the claimant's release on licence. The "directions" were made by the Chairman under Rule 8(1) of the Parole Board Rules 2004:

" . . . to enable the parties [ie, the claimant and the Secretary of State: see Rule 1] to prepare for the consideration of the prisoner's case or to assist the Panel to determine the issues."

26. The function of the Parole Board is to consider whether it should order the claimant's release and in that exercise it will have to assess, at some stage, the risk of releasing the claimant into the community. It will no doubt look at all the evidence, both written and oral, hear submissions on behalf of the claimant and the Secretary of State and thereafter make a decision. As I have said, there is a hearing fixed in front of the Panel of the Parole Board on 28th June 2007. It will be open to the claimant to request the Panel to make an order under section 28(5) of the 1997 Act.
27. Ms Krause tells me that the Parole Board is most unlikely to make such an order without the claimant first being released into the community by way of testing. She submits that the testing cannot take place without the cooperation of the defendant, which is not forthcoming. But if that is, or may be, the true attitude of the Parole Board or of the relevant Panel, then no doubt the claimant will refer it to the decision of the Divisional Court of the High Court of Justice in R v Parole Board ex parte Robinson [1999] EWHC Admin 764, which was heard by Simon Brown LJ (as he then was) and Newman J. The first Panel in that case had decided to release the claimant. At a second Panel hearing, the second Panel was not satisfied that it was any longer necessary for the protection of the public that the claimant in that case should be confined. Accordingly, it effectively reversed the decision of the first Panel. The court held that it was not open to the second Panel to reverse the decision of the first Panel and that the decision of the first Panel should be restored.
28. In that case it is to be noted that the relevant Probation Service gave evidence through the applicant's personal Probation Officer that the applicant's release would pose a serious risk to the public and that she, the Probation Officer, had not been able to prepare the release plan for the applicant because settled hostels had refused to accommodate him. The Chairman of the first Panel indicated that the Panel did not share the Secretary of State's concerns and indicated that they were minded to direct the applicant's release. At that stage it was pointed out to the Panel that a release plan was not yet in place and thus his release could not yet be directed. The Panel accordingly adjourned consideration of the applicant's case in order that an appropriate structured release plan could be formulated with appropriate conditions, in addition to the standard ones. Simon Brown LJ said at paragraphs 27 and 28, with which Newman J agreed, as follows:

"(27) The matter, however, is to my mind put beyond doubt by the terms of the first decision letter itself. The only question it left outstanding was the detail of the structured release plan (and the conditions to be imposed on the licence). It cannot be contended that the first panel's conclusion as to risk was dependent upon a successful structured release plan being devised, or that the plan itself was to be dependant upon the availability of hostel accommodation. Rather the letter made plain that the plan was merely to counter the 'risk of committing minor sexual offences', a risk not itself sufficient to have justified the applicant's continued detention, and that such a plan might well not involve hostel accommodation. In short, Ms Minty's evidence that the APS were unable to prepare a release plan had already been rejected.

(28) It seems clear that the Panel believed themselves unable actually to direct release until a release plan was in place. Mr Moore [the principal officer in the Lifer Unit] had, indeed, so advised them. My own view is that no such legal obstacle stood in their path: the plan was, I repeat, only to manage a risk of minor sexual offending; the Secretary of State's argument that there was 'significant risk to life or limb' had been rejected."

29. In the instant case the only decision made by the Parole Board upon which Ms Krause can rely is its decision of February 2005. However, that recommendation was for the claimant to be released into an open prison. It was not a recommendation that he should be released into the community. Indeed, paragraph 11.2 in the Lifer Manual Prison Service Order 4700 (PSO 4700) issued by the Prison Headquarters specifically states that governors of prisons "must be aware that assessing a prisoner as suitable for open conditions does not necessarily mean they are also suitable for temporary release".
30. Since the decision in February 2005, no decisions have been made in respect of releasing the claimant on temporary licence. In my judgment, for all those reasons, there has been no usurpation by the defendant and I reject that submission.
31. As to the second submission, the core point of Ms Krause is that if the Secretary of State and/or the Parole Board have assessed the risk of moving the claimant to an open prison and have implemented such a move, the defendant is under a duty to manage the next step of moving the claimant into a hostel and thus out of open prison completely, even though the defendant considers that the risk of harm to others, ie, the public, and in particular the other occupants of the hostel, is too high.
32. I refer now, as Ms Krause helpfully did, to section 325 of the Criminal Justice Act 2003. In subsection (1) the "responsible authority" in relation to any area, means the chief officer of police, the local Probation Board for that area and the Minister of the Crown exercising functions in relation to prisons, all acting jointly together. Subsection (2) provides as follows:

"The responsible authority for each area must establish arrangements for the purpose of assessing and managing the risks posed in that area by --

(a) relevant sexual and violent offenders, and

(b) other persons who, by reason of offences committed by them (wherever committed), are considered by the responsible authority to be persons who may cause serious harm to the public."

33. Next, Ms Krause referred me to sections 1, 2 and 5 of the Criminal Justice and Court Services Act 2000. Section 1 states that Chapter 1, which is concerned with the National Probation Service for England and Wales, was to have effect for the purpose of providing for the supervision and rehabilitation of persons convicted of criminal offences. Subsection (2) provides as follows:

"Subsection (1)(b) extends (in particular) to . . .

(b) supervising persons released from prison on licence,

(c) providing accommodation in approved premises . . . "

Section 2 provides that in exercising functions the Probation Board:

" . . . must have regard to the following aims --

(a) the protection of the public,

(b) the reduction of re-offending,

(c) the proper punishment of offenders,

(d) assuring offenders' awareness of the effects of crime on the victims of crime and the public,

(e) the rehabilitation of offenders."

Section 5 is concerned with the functions of local Probation Boards which are to make arrangements for ensuring sufficient provisions made in its area for the purposes mentioned in section 1, and to make arrangements for ensuring the performance of any functions conferred by the Act or any other enactment on officers of the Board.

34. Thus, it is submitted that in the circumstances of this case the defendant is under a duty to assess the risk of harm only for the purpose of managing that risk. Ms Krause submitted that it is open to the defendant to disagree with any risk assessment by the Parole Board, the Secretary of State or even the Prison Service for the purposes of release into open prison, but nevertheless, the defendant must proceed to manage the risk of releasing the claimant into the community. I do not accept those submissions. In my judgment, there is nothing in the statutes which warrant that conclusion. Indeed, the opposite seems to me to apply. The defendant is under a duty to make an assessment which takes into account a number of facts, including the risk to the public. It has a discretion as to what to do. Mr Rumney, counsel for the defendant, accepted that if the Probation Board made a direction under section 28(5) of the 1997 Act then the defendant could not go against that decision by refusing to implement it, merely because it disagreed with that decision.
35. At paragraph 34 of Robinson, Simon Brown LJ said:

"It is not for the Secretary of State or others opposing release (like the APS here) to question or seek to reopen the issue when the decision on risk is made against them. Nor are they to obstruct the implementation of the decision by reiterating their concerns or seeking to impose impossible conditions . . . Once, as here, a panel has decided that a prisoner can safely be released irrespective of whether a particular form of release plan is feasible, then the Prison Service and the Probation Service must faithfully accept that determination and do their best to achieve its successful implementation."

I emphasise that that point in the instant case has not yet been reached and, as yet, there is nothing to circumscribe the defendant's discretion. Second, the decision of the Parole Board made in February 2005 does not, in my judgment, circumscribe the discretion of the defendant. The defendant is entitled to make its own assessment as to how safe it is for a claimant to be released, or not, into the community. Indeed, it is my opinion that if the defendant did not do so the defendant would not be carrying out its functions laid upon it by Parliament.

36. The defendant has made its assessment. I cannot see -- and Ms Krause does not press the point of irrationality -- how its decision can possibly be said to be perverse, unreasonable or irrational. Indeed, it is to be noted that for the purposes of the hearing on 8th February, the Secretary of State (see page 148) submitted to the Panel of the Parole Board that he did not consider that the offender met the test for release. The reasons were given as follows:

"The Secretary of State's view based on the reports contained in the dossier is that Mr Churchman is not yet ready for release.

The Panel's attention is drawn in particular to the lack of a firm release plan.

The Secretary of State notes that Mr Churchman has a lack of insight into the extreme violence used and his motivation to have the urge to kill, and that Mr Churchman's failing to acknowledge the need for support on release and a negativity towards the role of probation, shows that he needs more time in open conditions to finalise his release plans and to build good probation relations and complete other work."

37. I entirely reject Ms Krause's submission that the defendant has frustrated the process of moving the claimant from an open prison to living in the community under release on temporary licence. Further, in so far as it is necessary for me to make this part of my decision, I accept the reasoning of Stanley Burnton J in R (on the application of Frank Irving) v London Probation Board [2005] EWHC 605 Admin. It was there decided that under section 5 of the 2000 Act, no duty was owed to an individual prisoner. Accordingly permission to apply for judicial review by Mr Irving against the London Probation Board was refused. In paragraphs 9 and 10 the judge said:

"(9) The purposes mentioned in section 1 [I interpolate, he is referring to the 2000 Act] include the supervision and rehabilitation of persons convicted of offences: see section 1(1)(b), and in particular to supervising persons released from prison on licence and providing accommodation in approved premises: see subsection 2(b) and (c). Indubitably, under section 5 the local Probation Board has a power to provide accommodation for released prisoners on licence. Section 5, however, does not speak of a duty as such. It speaks of a function. The function goes beyond a mere permissive power because it is a function to make arrangements for ensuring that sufficient provision is made. However, the use of the word 'function' instead of 'duty' is, in my judgment, clearly significant, as is the provision in subsection 8 which is that:

'It is for the Secretary of State to determine whether or not any provision made by a local Probation Board under this section is sufficient.'

(10) It is submitted by Mr Southey on behalf of Mr Irving that section 5 creates a duty owed to an individual prisoner. It is clear to me that it does not. It creates a function and, in a qualified sense, a duty, but it is a public law duty which is not owed to an individual. That is not to say that judicial review proceedings in respect of that function could not be taken, but it does not create a duty owed to an individual. The function is to ensure that sufficient provision is made in respect of the area for the purposes mentioned in section 1. What is sufficient will be very much a matter of judgment. A provision may be sufficient even though provision is not available for a particular individual at a particular time. Section 5 is concerned to a significant extent with resources [of the court]."

38. The application will be dismissed. I find the decision of the defendant to be both lawful and rational. The question of legitimate expectation was hardly mentioned by Ms Krause in her oral submissions. I find that there was no legitimate expectation that the claimant would proceed to be released into the community merely because release into an open prison was a first step along that possible route. In any event, the defendant itself did not give any such expectation.
39. MS KRAUSE: My Lord, your Lordship indicated that he does not accept the letter is the decision impugned in this proceedings. That was never claimed by the claimant. That was something relied upon to bolster up the submission.
40. I have one application for Legal Aid taxation.
41. MR JUSTICE BENNETT: Yes, you can have that.
42. MS KRAUSE: Would your Lordship order an expedited transcript of the decision?
43. MR JUSTICE BENNETT: You will probably want it put in front of the Parole Board.
44. MS KRAUSE: I am grateful. Finally, I have not taken instructions but I wonder if I can apply for permission to appeal, my Lord, on the very point of discretion, which is another point, the discretion by the defendant, and whether the decision not to provide such short-term accommodation is in fact covered by the discretion or whether the statute does confer that amount of discretion on the defendant.
45. MR JUSTICE BENNETT: Ms Krause, if I may say so you argue very well but my mind is perfectly clear in this matter. I shall refuse you permission.
46. MS KRAUSE: I am grateful, my Lord.
47. MR RUMNEY: My Lord, in the circumstances I do not make any application for costs.
48. MS KRAUSE: Nor do I.
49. MR JUSTICE BENNETT: No order as to costs, Save for Legal Aid taxation. Thank you both so much for your help.