Neutral Citation Number: [2007] EWHC 2164 (Admin)

CO/10236/2006 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 19th September 2007
 
B e f o r e: 

MR JUSTICE IRWIN
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Between: 
THE QUEEN ON THE APPLICATION OF HILL 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Mr S Grodzinski (instructed by Matrix Chambers) appeared on behalf of the Claimant
Miss N Greaney (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE IRWIN:  In this case, the claimant, Robert Hill, was born on 30th November 1959 and on 18th December 1980 he committed murder.  The facts briefly are that he was at that stage a soldier.  He committed, he says for the first time, homosexual acts, and in the aftermath of that, his partner threatened to inform the army of what had happened.  In response to that threat, he killed him.  Rapidly thereafter, he rang his commanding officer and turned himself in, subsequently admitting what he had done, and pleading guilty to murder.  On 21st July 1981, Mr Hill was sentenced to life imprisonment and a tariff was set, that is to say the period before he could be considered for release on parole.  At 12 years, that tariff expired on 26th January 1993. 
2.	He had various parole reviews during the 1990s.  Finally on 12th October 2004, the Parole Board recommended a move to open conditions.  Subsequently, no decision was reached in favour of such a transfer by the Secretary of State and on 21st January 2005, the claimant issued legal proceedings to secure a decision from the Secretary of State.  On 28th January 2005, the Secretary of State issued a final decision accepting the board's recommendation for transfer and the next parole review was scheduled to take place 18 months thereafter.  In April 2005, the claimant was moved to open prison conditions.  However, in September 2005 he was removed from open prison.  That was said to be due to staff concerns at his behaviour. 
3.	In December 2005, the Secretary of State disclosed information relied on for the decision to return him to closed conditions and representations were submitted by Mr Hill, requesting his return to open prison.  On 21st January 2006, the Secretary of State decided "on balance" to refer this case to the Parole Board for further advice as to transfer.  After developments, which I shall outline subsequently in this judgment, there was a hearing on 12th April last year before the Parole Board, leading to a recommendation on 19th April from the Parole Board to move Mr Hill back to open conditions.  That advice and the subsequent decisions ‑ three of them by the Secretary of State not to follow the advice ‑ are the basis of this application for judicial review. 
4.	Very shortly, there are two sides to the case made by Mr Hill.  Firstly, an attack is made upon the way the Secretary of State, now the Secretary of State for Justice, exercises his discretion in such cases: what one can call the general case.  Secondly, there is an attack upon the specific decisions and decision making in this case: the particular case as it relates to Mr Hill.  
5.	It should be understood that the importance of transfer to open prison for a life prisoner is considerable.  Statements in evidence from the claimant's solicitor, Mr Creighton, who is a very experienced solicitor in this field, and from Su Gambling, the head of casework of the Pre‑Release Section of the Public Protection Unit of the Ministry of Justice, confirmed that.  Mr Creighton tells the Court that, save in very rare exceptions and specific cases, a period in open prison under category D is essential for eventual release.  Those exceptions are firstly short tariff lifers, who have not been institutionalised; secondly, prisoners who will be deported.  Thirdly, there are recalled lifers, who have had a period in open prison before release, and in that category there are two subcategories: first, those who have had life imprisonment and have been recalled and have challenged the recall successfully and then released from closed conditions; and, second, lifers who have done a period in open prison, have been released on licence and are then recalled for specific refresher work or courses or treatment on one count or another and who then can be released after a relatively short period in closed conditions, into the community without a further period in open prison.  The final exception is a few prisoners released under the Good Friday agreement, relating to the Northern Irish troubles and the settlement there.  
6.	The evidence from Ms Gambling broadly confirms that pattern, providing some figures.  There has been change, she tells the Court, in relation to the pattern here.  There have been somewhat more releases from closed prison than before: 52 lifers in the period from 1st April 2006 to 31st March 2007 were released from closed conditions.  However, when we examine that cohort of 52 more closely, we find, as Mr Creighton's evidence would support, that 26 were released following consideration of representations against a recent recall from licence.  Of the remaining 26 prisoners, Ms Gambling tells us they were either released for the first time or had previously been released and recalled and made unsuccessful representations against that recall.  However, she does not break down the proportions of that small cohort of 26 who are in each camp.  So in the end, we do not know how many of that 26 were, in fact, released from closed conditions for the first time.  On any view, this is a small number.  We cannot be sure, but it seems clear that release from closed conditions with no period in open prison is very rare.  
7.	In any event, in the course of argument in this case and after taking instructions, Miss Greaney for the Secretary of State confirmed that release from open prison, or rather following a satisfactory period in open prison, is very much the normal pattern and, secondly, that there is and was no expectation that Mr Hill would ever be released without a satisfactory period in open prison.  It further follows that, the transfer to open conditions for the vast majority of life sentence prisoners, and for this prisoner, represents in effect a precondition for eventual release.  It follows that if the system withholds or prevents transfer to open prison, that prevents progress towards release.  It should be noted from the timetable I have already outlined in relation to Mr Hill, that he spent 12 years in custody before his tariff expired, but has since spent an additional 14 years, 8 months in custody since his tariff expired.
8.	I turn now to the statutory regime under which the Secretary of State for Justice and the Parole Board play their relative roles in advice and decision‑making on the categorisation or classification of prisoners.  We start with the Prison Act 1952, Section 12, which reads as follows:
"(1)  A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.
"(2)  Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any another prison."
9.	That is the basic power.  Under the Prison Rules 1999, rule 7 reads as follows, headed Classification of Prisoners:
"(1)  Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3."
10.	The provisions of Prison Service order number 900 are also relevant.  The current section of this rule dates from a revision of 4th September 2001, and therefore was current at the time of the relevant events for Mr Hill.  Chapter 1 reads in part as follows:
"This chapter sets out the procedures and documentation for the categorisation of allocation of all adult male prisoners, other than those for whom responsibility lies with headquarters.  They do not apply to either category A or life sentenced prisoners.
"The chapter describes the definitions of each security category, the principles that must underpin the categorisation of and allocation of adult male prisoners." 
11.	Categories C and D are then defined as follows:
"Category C.  Prisoners who cannot be trusted in open prisons, but who do not have the resources and will to make a determined escape attempt.
"Category D.  Prisoners who can be reasonably trusted in open conditions."
12.	Although these categories do not apply directly to life sentenced prisoners, statute, regulation and practice mean that the Parole Board will be engaged in advice as to transfer, or fitness for transfer, of such life sentenced prisoners.  Lifers take their categorisation from the prison in which they are positioned.  So although the formal categorisation does not apply, as a result of this rule, both sides in the course of argument agree that by a circular route the categorisation is to be regarded as the same. 
13.	The next relevant provision is the Crime (Sentences) Act 1997, section 28.  It may be sufficient to summarise the effect of this section as follows: there is an obligation on the part of the Secretary of State to refer life sentenced prisoners to the Parole Board to consider whether the Parole Board should direct their release and, if the Parole Board directs release, the Secretary of State must follow that direction.  This is a provision specifically concerned with release, not with transfer.  However, Miss Greaney for the Secretary of State emphasises that while there is no statutory duty on the Secretary of State for Justice to seek advice on categorisation or transfer of life sentenced prisoners, it is the invariable practice ‑ and, one pauses to comment, entirely sensible practice on the part of the Secretary of State ‑ to request advice from the Parole Board on categorisation, classification or transfer, however it is expressed, when a life sentence prisoner is referred to the Parole Board on the question of release. 
14.	That advice from the Parole Board is sought pursuant to their functions now summarised and founded in section 239 of the Criminal Justice Act 2003.  The section reads as follows:
"239 The Parole Board.  
 (1)  The Parole Board is to continue to be, by that name, a body corporate and as such is...
"(b) to have the functions conferred on it by this chapter in respect of fixed‑term prisoners and by chapter 2 of part 2 of the Crime (Sentences) Act 1997, in respect of life prisoners within the meaning of that chapter.
"(2)  It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."
15.	The language of that statute, under which the advice in this case sought, emphasises the close connection between transfer and categorisation on the one hand and early release or recall on the other.  
16.	When seeking such advice, the Secretary of State has given directions to the Parole Board as to how they should set about giving such advice.  Those are set out in directions to the Parole Board under section 32(6) of the Criminal Justice Act 1991.  These directions emphasise much of what I have said previously in the course of this judgment.  They read in part as follows:
"1.  A period in open conditions is essential for most life sentence prisoners, 'lifers'.  It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons.  Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.
"2.  In considering whether a lifer should be transferred to open conditions, the Parole Board should balance the risks against the benefits to be gained from such a move.  Such consideration is, thus, somewhat different from the judgment to be made when deciding if a lifer should be released: in those cases, the Parole Board is asked only to consider risk.
"3.  The principal factors which the Parole Board should take into account when evaluating the risks of transfer against the benefits are:
"(a) whether the lifer has made sufficient progress towards tackling offending behaviour to minimise the risk and gravity of reoffending and whether the benefits suggest that a transfer to open conditions is worthwhile at that stage; and,
"(b) whether the lifer is trustworthy enough not to abscond or to commit further offences (either inside or outside the prison).
"4.  Each case should be considered on its individual merits.
"5.  Before recommending transfer to open conditions, the Parole Board should consider whether: 
"(a) the extent to which the risk that the lifer will abscond or commit further offences while in prison is minimal;
"(b) the lifer has shown by his performance in closed conditions that he has made positive efforts to address his attitudes and behavioural problems and the extent to which significant progress has been made in doing so;  
"(c) the lifer is likely to derive benefit from being able to continue to address areas of concern in an open prison and to be tested in a more realistic environment."
17.	It is worth noting at this stage that Miss Greaney expressly agreed that when exercising the discretion for which she contends, in the face of advice from the Parole Board and in respect of the decision about transfer or categorisation, the Secretary of State must have regard to the same considerations which he directs should be the focus and ambit of the Parole Board when formulating their advice. 
18.	Categorisation and classification are not quite the same as transfer.  The first is a decision about the prisoner.  It is not contended by either side here that in relation to the categorisation or classification of the prisoner there are factors extraneous to the prisoner to be considered.  Actual transfer may be affected by availability of places in open prisons or other practical considerations which are within the operational or managerial preserve of the Secretary of State.
19.	I have already made reference to the point summarised in paragraph 4.2.1 of the lifer manual, a document produced by the Secretary of State to deal with the handling of such matters for life sentenced prisoners: in the case of the lifer, the prisoner will, "Take the category of the prison in which they are held."  It is by that route that the confusion of language in relation to the life sentenced prisoner between category, classification and transfer arises.  For our purposes, what is clear is this: advice as to transfer by the Parole Board is confined to what would be classification or categorisation in respect of a prisoner with a determinate sentence.  In reality the advice is: this prisoner is fit for transfer and if they were not a lifer, should be categorised as A, B, C or D.
20.	That decision, although expressed to be advice about transfer is in reality a decision as to their proper categorisation and is, again, not a decision involving considerations extraneous to the prisoner.  That may be important.  If there are no considerations extraneous to the prisoner in the formulation of the Parole Board's advice, or in the consideration of the Parole Board's advice by the Secretary of State, it means that the Secretary of State is not any better positioned to consider the advice and make the decision than was the Parole Board to formulate the advice.  
21.	It may be helpful to summarise my conclusions thus far.  Firstly, the Secretary of State has an obligation to seek directions from the Parole Board as to the question of release of the lifer; secondly, the Secretary of State has no obligation to seek advice on the questions of transfer or classification, but, the Secretary of State always does seek such advice when the question of release is before the Board; next, for practical purposes a spell in open prison is a prerequisite for release and will be so for this claimant; next, on the face of the legislation and regulations as I have outlined them, the Parole Board gives advice and Parliament has reserved to the Secretary of State a discretion to receive that advice, consider it and follow it or otherwise.  I examine later how that discretion is exercised.
22.	I turn now to the referral of this prisoner in 2006.  The first report relevant to the referral came from Mrs Nelmes, a chartered forensic psychologist who was then a treatment manager at HMP Usk and HMP Prescoed.  That report was dated 11th November 2005.  The second in time was a report from Mr Prior, the claimant's local probation officer dated 16th November 2005, and the third report, or reports, from Dr Hider, the independent clinical psychologist retained by solicitors for the claimant, dated 30th March 2006, with an addendum report of 10th April 2006.  
23.	It is necessary to summarise what each said in writing.  Mrs Nelmes said that she had seen the claimant regularly for about two months before the report.  He felt anger and confusion on a continuing basis in relation to his sexual identity, particularly set alongside his enthusiastic Baptist Christianity.  He said that he accepted his homosexuality, but she felt it was in conflict with his Christian beliefs and that that conflict was unresolved; it represented a concern for her and she felt that he should have done the Extended Sex Offender Treatment Programme to address that.  
24.	She had a concern over alcohol.  When he was on a supervised work placement during his few months in open conditions, he had used alcohol in breach of the rules.  She felt he was isolated, that he was often angry, prone to verbal outbursts and had, "poor emotional control," and her conclusion is worth quoting in part.  She wrote as follows:
"It is clear to see that Mr Hill could be seen as a difficult individual.  However, within sessions I have found him to engage and reflect on what had been discussed, which was excellent.  In my opinion, Mr Hill needs to be directed through a route for violent or sexual offending that will give him the opportunity to challenge his thinking and to develop skills to aid him to have healthy relationships in the future."
25.	She then said:
"Mr Hill presents in an aggressive manner, which at times could be perceived as threatening.  There are reports from a variety of staff, which have been the recipient of Mr Hill's attitudes and poor emotion control.  This included an outside agency who came to interview Mr Hill for a job vacancy which resulted in him shouting at the individual about being exploited.  Mr Hill is not ready to be in a category D establishment, where he needs to self manage."
26.	Mr Prior is someone who had then spent 17 years as a Probation Officer.  He had extended previous contact with the claimant between January and October 2004 in relation to a previous lifer review panel.  The claimant had rejected further contact with Mr Prior in the period of preparation for the review with which we are concerned.  However, Mr Prior kept himself informed by making contact many times, with prison staff and with the seconded probation officer in the prison.  Mr Prior's key conclusions in writing were that Mr Hill had come to terms with his sexuality; that there were behavioural difficulties in prison with repeated staff confrontations, but that those were not violent; that his behaviour did not represent a risk to the public.  He then said, "He is not manageable in open conditions," and that Mr Prior feared he, "Only wants release on his own terms."  Mr Prior recommended then that further programmes were appropriate before Mr Hill was once again tested in open conditions. 
27.	Dr Hider is a very experienced and highly qualified expert, as is clear both from the curriculum vitae, which he placed in his reports, and indeed the contents of those reports.  His preparation was based on reading full documentation and on a two and a half hour clinical interview with Mr Hill, in the course of which he performed a number of formal psychological and psychometric assessments.  His written conclusions can be summarised as follows: Mr Hill was hostile to the prison system, and indeed to the discipline of psychology, but he accepted the gravity of his offending and accepted that he required significant punishment but asked 'Where does it stop?' a question really directed at the very long time he had spent incarcerated. 
28.	Dr Hider concluded Mr Hill had fixed and rigid stance and beliefs; that he acknowledged that his own behaviour could be interpreted as obstructive and hostile.  Dr Hider noted a decrease in adjudications and problems as time had gone on.  He noted that the alcohol incident during the course of the trial work was of little importance, because it seemed clear that Mr Hill had, in fact, had permission to buy and consume the small amount of alcohol that he did.  Dr Hider explored with Mr Hill the problem of conflict between sexuality and beliefs, and that was denied by Mr Hill.  
29.	Turning to the psychological tests and instruments that he had used, they included a risk assessment instrument, and he said this did raise the prospect of a destabilising effect in the conflict between the homosexual orientation and the Christian beliefs.  Dr Hider went on to say it was unremarkable, given this man's background, history and offending, that he had found features of anti‑social personality disorder with some paranoid traits.  Dr Hider concluded ‑ and this is important in my judgment ‑ that continued imprisonment was playing its part in all this, entrenching the problems faced by Mr Hill.  I quote a part of his conclusions.  At paragraph 67 of his main report, Dr Hider wrote:
"This combination of poor behavioural controls, coupled with an ideological unwillingness to engage meaningfully in rehabilitation and a rigid and inflexible, distrustful personality organisation seems to underpin the majority of Mr Hill's difficulties in the prison system.  Unfortunately the nature of closed conditions means that all individuals with such personality tendencies may struggle, particularly in such environments.  In some respects then, Mr Hill's personality development cannot be separated from the effects of the prison environment on his personality."
30.	He went on to analyse that there were two possible approaches to Mr Hill's situation.  Firstly, a "long‑lasting therapeutic relationship" with a suitable professional to attempt to move Mr Hill on and, secondly, an acceptance that his problems were untreatable and irremediable, with the inevitable consequence either of a long further period in custody or release without improvement.  Dr Hider concluded firmly that group programmes were of no possible benefit and, disagreeing specifically with Mrs Nelmes, concluded that a sex offenders treatment programme was not appropriate or helpful. 
31.	In his addendum report, Dr Hider was clear that Mr Hill was not amenable to transfer to a therapeutic community such as HMP Dovegate, a closed prison.  He emphasised that his primary objective was to engage Mr Hill in the relevant kind of sustained therapeutic relationship.  He said at that stage in writing that the category of prison in which that was done was not the main point.  He emphasised there was no particular risk to the public from Mr Hill being in open conditions, and he also emphasised that transfer to open conditions, if that is what emerged, should be contingent on the claimant engaging in treatment and in regular risk assessment.
32.	Well, it was with that written material that the Board met on 12th April 2006 in HMP Cardiff.  This constitution on the board consisted of Her Honour Judge Morgan in the chair and a senior psychiatrist and a senior Probation Officer sitting with her. 
33.	They heard evidence from Mr Hill over quite a period and then from the three expert witnesses that I have already identified.  The claimant was represented by Mr Creighton and the Secretary of State by Mr Harrison, who is a lifer manager.  It is perfectly plain that in the course of what was quite a long hearing, things moved on.  As Mr Grodzinski for the claimant emphasised in the course of argument before me, that is one of the functions of an oral hearing.  The views of the experts were clarified.  We know a good deal about what took place in the course of the hearing, both from the reasonably full reasons given by the Board and from the notes made by the judge presiding, which have been disclosed subsequently.  It is clear that Mr Hill in his own evidence was quite open and, indeed, self‑critical, although sticking to his principal views about the system and about how he found himself within it.
34.	We are able from the notes to tell quite a lot about the evidence given by the three experts.  Mr Prior came first.  He emphasised that Mr Hill was institutionalised.  He said that was not an excuse for poor behaviour.  He emphasised that he might be a bit hasty in his manner.  He said that he, Mr Prior, had experienced none of the negativity that was reported by others.  He emphasised that Mr Hill had been a bit suspicious at first, but other than that, he was as he had been today, meaning in front of the Board.  He said there was a lot of potential for Mr Hill.  Importantly, Mr Prior said: 
"Outstanding areas of risk ‑‑ none.  Those problems have been dealt with.  Would have had violence long before now.  Interpersonal skills need work.  Risk to public is low.  Cannot understand sex offender route.  Damaging to be enclosed for too long.  Needs to be engaged with interpersonal skills where he can practise.  Can interact with public and others, better relations with staff.  Days out, no evidence of lack of civility to people outside prison."
35.	It is clear from those notes that Mr Prior had come to the view that the right approach here was to transfer, and that that was a reasoned position.  It turned both on the benefit to Mr Hill and on the lack of risk to the public, specifically the lack of risk whilst in open conditions. 
36.	In regard to Mrs Nelmes, again we can draw some of what she said from the notes.  She accepted, it is clear by implication, the therapeutic recommendation that she had seen in the reports of Dr Hider, and the first note of what she said was: 
"No one‑to‑one work in open conditions.  We are resourced for group work.  Work he needs, only enclosed."
37.	It has subsequently been accepted that this is an overstatement of the position.  In fact there is no absolute problem or, indeed, no evidence before me of any real problem in organising the correct therapeutic treatment in open conditions. 
38.	She went on to say that he needed to work through his ability to engage with staff; that with her, "He has been today as he was with me, he would engage with me."  She did feel there was a potential for physical threat.  She went on to say that category D is a place for consolidation, not a place to develop skills.  She said, "Risk not manageable", "Risk in open ‑‑ beliefs about individuals, authorities, his sexual identity to the Bible.  Lacks skills in forming relationships, potential for aggression if things go wrong."  Finally she said, "Risk when not comfortable to disclose sexuality, people with power over him, grievance thinking."  That was her evidence.  
39.	Dr Hider emphasised firstly, in respect of risk management there was quite a high score but not against a norm:  "Not psychometric, does not equate to risk."  He disapproved again of the idea of a sexual offenders treatment programme: this was not a sexual offence but a violent offence.  He emphasised again there was difficulty in separating the presentation of behaviour and risk from relationships with authorities.  He said there were no acute factors, no impulsive violence, no absconding.  The only concern was he still needed an environment in which to develop a new approach to the system.  Power relations in category D are different.  It is difficult to engage in category C, there is more good will in category D.  He went on to say: 
"Further trial in category D warranted, as long as appropriate treatment.  Successful and long term engagement in treatment, not superficial."
40.	He emphasised once more: 
"Easier in Cat D.  Needs experience of good guides.  Long term, at least a year, potentially longer before release."
41.	Based on that evidence, the notes of the thinking by the panel are also set down.  They said Mr Prior had changed his opinion.  He said he was a different person, but nothing had changed about the risk.  The report writers say, "Risk is acceptable, no immediate danger.  Risk is reduced."  Dr Hider, they noted, would not categorise this as a sexual offence: "Mrs Nelmes, not the right way from here," that being their consideration of Dr Hider's view.  They were impressed by Dr Hider's evidence; they were impressed by Mr Hill's evidence.  He was open, it was clear that he recognised fault and the need to develop relationships.  That is sufficient quotation from the notes. 
42.	Shortly after the hearing, on 19th April 2006, the Board formulated their reasons for giving advice that there should be transfer.  It is not necessary for me to go through that document in detail.  It is consistent with the summary of their thinking, which appears in the notes.  This advice represents a clear, articulate and carefully reasoned recommendation for transfer, in my judgment. 
43.	Before continuing the sequence of events for this individual claimant, it is necessary to consider the policy approach of the Secretary of State to his exercise of discretion in relation to advice from the Parole Board on the question of transfer.  This is partly summarised in the lifer manual, which has been put before the Court as a loose document.  Paragraph 5.7.1 reads in part as follows:
"Lifers can normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by senior managers in LRRS [that is the relevant part of the department] on behalf of the Secretary of State."  
44.	What that makes clear, and it is a key fact which was confirmed directly by Miss Greaney, is that there is no actual exercise of discretion, save, perhaps, in exceptional circumstances, in cases where the Parole Board advises against transfer.  The prerequisite for a proper or full consideration of transfer by the Secretary of State is advise in favour of transfer from the Parole Board.  It was initially explained to me by Miss Greaney that the different approach, depending on the nature of the advice from the Parole Board, really derived from the fact that in all cases where there was a negative advice as to transfer by the Parole Board, the Secretary of State would already have made submissions to the Board against transfer.  On closer examination that proved not to be the case.  So as to be sure of the ground here, I asked Miss Greaney to take specific instructions on this point and the case was adjourned for a little time so that could be fully clarified.  
45.	In fact, it is agreed that there are a percentage of cases where the Secretary of State has formed and expressed no view on transfer before the Parole Board meets to consider its advice.  That may be because the Secretary of State considers the matter too clear, presumably one way or the other, to need submissions from him.  Or it happens sometimes that there is simply no time, as was confirmed to me by Miss Greaney.  It may also be the case, one might think, that there may be some cases where the Secretary of State has not formed a view.  There are, I was told other cases where no submissions are made before the hearing.  Whether any submissions are made, and what they are, may be left to the discretion of the person attending the Board on behalf of the Secretary of State, meaning that there has been no departmental consideration of the issue at all before the Parole Board advice is announced.  Yet, in respect of all of these categories of case, an advice against transfer by the Board is accepted without any consideration by the Secretary of State, save perhaps in exceptional circumstances.
46.	It also seems clear that it used to be the case, where the Parole Board advised in respect of a lifer that there should be transfer, that that advice was accepted in the overwhelming majority of cases.  In his third witness statement, Mr Creighton sets out figures obtained from the National Offender Management Service analysed as to the three years, 04/05, 05/06, 06/07.  The figures are not challenged, and they make interesting consideration.  
47.	In the year to 31st March 2005, out of a total of 475 cases where advice was given for transfer, the Secretary of State rejected transfer in 29 cases.  That is almost exactly 6 percent.  In the year to 31st March 2006, out of a total of 444 cases, the advice for transfer was rejected in 40 cases, that is close to 9 percent.  Each of those small percentages, no doubt with differing individual explanations, seems to represent a pattern of general acceptance of the advice, save in exceptional circumstances.  Figures for the year to 31st March 2007 are radically different.  Of a total of 273 cases, the Secretary of State rejected the advice in 106: 39 percent of the cohort. 
48.	It seems to me that there is only one fair inference to be drawn from those figures.  For the year to 31st March 2007, the year which, of course, is relevant to Mr Hill, as a matter of policy, a different approach to the favourable advice of transfer must have been adopted by the Secretary of State.  This appears to have been a much more restrictive, more questionning approach, while continuing the previous unquestionning approach to advice against transfer.  In effect, there was automatic or near automatic acceptance of negative advice from the Parole Board, but a sea‑change whereby many more of the favourable advices were rejected. 
49.	I turn now to the decisions in this case by the Secretary of State.  There were three.  Following the April 2006 hearing and the advice, there was delay, a delay of two months or so until 15th June 2006 when the first decision was set out in a letter by the Secretary of State.  In the course of that decision, (it was) said that this decision had been approached with "particular care".  Well, it is now common ground that that cannot be so.  This decision relied on the written reports and not on oral evidence, and in effect meant that the decision‑maker did not read the panel's recommendations properly, as expressed in their letter of 19th April.  It is common ground that the letter of 15th June 2006 paid no regard or inadequate regard to the oral evidence or to those parts of it which had been referred to in the reasons given by the Board.  Secondly, there was reliance on the alcohol incident, which had been fully explained.  Thirdly, there was a reliance upon the supposed risk of offending, without grappling with the judgment made as to risk of offending by the Board, given the conflict between Mrs Nelmes and the other two experts. 
50.	15th June was the date of the letter.  On the following day, Mr Creighton wrote objecting to the decision, claiming that it was unlawful and that it did not reflect the evidence that had been given or the reasoning of the Board.  After further exchanges of correspondence, by 28th June 2006 the Secretary of State agreed that he had not considered the oral evidence.  There was no concession he had not properly considered the Board's reasons, but that must follow.  The department argued that they would look at the notes made of the oral evidence by the Chairman.  
51.	There was, again, considerable delay after that undertaking to review the case.  By 28th September 2006, there had been no reconsideration and it seems clear from the correspondence that the notes had not yet even been obtained.  However, by 1st November 2006, the Secretary of State had obtained the notes and gave a second decision.  This too was a rejection.  It was then said to be because of the assessments by Dr Hider of Mr Hill, as to conflict between the religious beliefs and homosexuality, which needed to be explored "as to risk".  As we have seen, when that was in fact not a significant risk according to Dr Hider.  As the learned judge remarked in giving permission for judicial review in this case, "It is arguable not merely that the errors in the first decision were not corrected in the second, but that they were perpetuated."  I agree. 
52.	Subsequent to that decision, matters were delayed again, but for different reasons.  On 5th December 2006, an application for judicial review was issued.  On 13th December 2006, the House of Lords gave their decision in the case of R (Clift) v the Secretary of State for the Home Department and Others, which is now reported at [2007] 1 AC 484, and counsel wished to consider that authority in relation to the claimant's case.  
53.	In short, the parties agreed during December or January that they would consider the Clift decision, that there would be a further reconsideration of the case by the defendant, and that they would keep the existing judicial review proceedings alive to examine the third decision, if that was thought appropriate, rather than start again. 
54.	The third decision is, of course, before this Court.  This was more fully expressed than the earlier decisions.  It was again a rejection.  It firstly accepted explicitly that the previous decisions in this case were flawed.  It accepts that the alcohol episode, featuring in previous decisions, has had a proper explanation and should not operate against the transfer of Mr Hill.  The Secretary of State accepts explicitly Dr Hider's assessments of Mr Hill and his recommendations for a treatment plan.  In my judgment, this decision wrongly stated Dr Hider's views as to where that should best be accomplished.  The decision recites, in part, as follows:
"Dr Hider remained of the view that engaging with a therapeutic community was his principal recommendation but recognised that Mr Hill was not amenable to such a transfer and was of the view that Mr Hill would not benefit from group work.  Despite being supportive of a move to open at the hearing, Dr Hider had recognised that location was not the principal concern from a clinical perspective (paragraph 4, addendum report) and had even considered that it may be more beneficial to engage in treatment in closed conditions so that the outcome of this treatment can be evaluated before a move to open conditions is considered." 
55.	That ignores all that Dr Hider had said in his developed views to the Parole Board, where his position had clearly come to be, as accepted by the Board, that this treatment was better carried out in open conditions.  
56.	The concluding part of this decision can be extracted from the latter part of the letter as follows:
"The principal concern relates to Mr Hill's attitude in terms of his sexuality and his interpersonal relations ... in terms of risk factors, Mr Hill has stated he wishes the majority of his friends to come from the Christian community but this would place him in a situation of secrecy relating to his sexuality, a circumstance identified by Mrs Nelmes as mirroring the precise factors that led to the index offence ... the Secretary of State therefore considers it important in relation to risk that the work identified by both Dr Hider and Mrs Nelmes needs to be taken forward, completed and tested.  The risk factors that remain concern Mr Hill and his own attitude towards acknowledging his sexuality and managing this in terms of interpersonal relations.  The Secretary of State accepts that work needs to be undertaken in this area, but considers that as it represents core work, central to Mr Hill's progress, that it should be conducted in an environment where there are greater facilities and more effective monitoring can take place, and as such should be completed in closed conditions prior to any consideration of a future move to open conditions."
57.	That decision centres on risk.  As I have already said, it misstates or ignores Dr Hider's key representations to the Parole Board about where his own treatment plan is best accomplished, given the realistic choices open.  The decision does not deal with the arguments by which the Board preferred Dr Hider's position to that of Mrs Nelmes.  It does not consider the benefits for Mr Hill of a move to open conditions identified by the Board.  
58.	It is also important to note how the support for that decision is argued by the defendant.  From paragraph 39 of the defendant's skeleton argument ‑ I should note a helpful and comprehensive document ‑ we read this: 
"As to the question of risk, the Secretary of State for Justice was well aware of the Parole Board's views that the risk was no greater now and in all probability had reduced since the time when the claimant was transferred to open conditions in 2004/2005.  The SSJ's view is not based on a proposition that the claimant's risk has increased.  The SSJ's view is that the key areas of risk remain, which need to be addressed by core work which relates directly to his offending.  It is not accepted that the rationality of the SSJ's decision depends on him being of the view that the claimant's risk has reduced since 2004 to 2005.  It is relevant that the transfer to open conditions in 2005 was unsuccessful due to the claimant's behaviour towards others, which made him unmanageable in open conditions.  There remains outstanding one to one psychological work to complete, relating to interpersonal relationships, the directions to the Parole Board by the transfer of life sentence prisoners to open conditions make clear that the question is not one of risk alone and a relevant factor is whether the prisoner has made significant progress in addressing his attitude and behavioural problems."
59.	With great respect to Miss Greaney, it seems to me that that misstates the central thrust of the decision which was reached on the third occasion.  It seems to me that the central thrust of that decision was risk. 
60.	The claimant criticises this decision in various ways, but I hope it is not unfair to summarise them as follows: one, even now the reasoning is unclear; two, the reasoning and thinking does not reflect the evidence before the Board or the conclusions of the Board; thirdly, the decision is really about risk, and yet there was no additional evidence of risk or real basis for disagreeing with the Board's conclusions; and, fourthly, that in relation to the key recommendation of one to one psychotherapy, the decision did not meet the reasoned advice of the Parole Board that it would be better done in open conditions. 
61.	I turn to the general arguments advanced by the claimant.  In relation to the authority of Clift, which I have cited above, the claimant argues that as a matter of law there should be no continuing discretion, residing with the Secretary of State, "Save in exceptional circumstances".  This is based on the proposition that, because the issue of categorisation or classification or transfer has no relevant consideration extraneous to the prisoner, the Parole Board is as well placed as the Secretary of State for Justice to make that decision; and that, relying on passages from the speech of Lord Bingham and others, the discretion should no longer be exercised, save in residual fashion.  In my view that argument is misconceived.  
62.	The Clift case was concerned with the fact that the Parole Board directs release or otherwise, save in respect of two anomalous groups of prisoners: firstly, prisoners with long determinate sentences of more than 15 years; and, secondly, foreign nationals.  Both were anomalous, said the House of Lords, because the groups were singled out, by operation of statute, yet could not be justified as exceptions.  However, despite concluding there was no justification or logic for the exception of the two  groups of prisoners, the House of Lords went on to say, after some hesitation, that only in respect of the foreign nationals was the anomaly unlawful, and that only by reference to the engagement of Article 14 of the European Convention of Human Rights.  
63.	None of that is in question here. There is no anomalous group of lifer prisoners in respect of whom the Parole Board decides rather than advises on transfer.  It is not the case that the claimant is one of an arbitrary group where an anomalous and unjustifiable different approach is taken.   The situation is quite clear: Parliament has set up a statutory scheme, as I have outlined. Under that scheme the Parole Board advises on this question, and the Secretary of State maintains a discretion, in respect of all lifers. 
64.	A closely similar position arose in the case of R (Black) v SSHD, [2007] EWHC 1668 Admin.  I can deal with that shortly by quoting from the headnote.  In that case, the claimant was sentenced to a total of 20 years' imprisonment, on various counts and subsequently an additional 4 years' imprisonment.  He had a long history of offending.  In May 2006, the Parole Board recommended the claimant's release on licence, but the Secretary of State declined to release the claimant.  Although the Secretary of State had before him the same material as was before the Parole Board, he reached a different conclusion about the degree of risk to the public safety posed by the claimant.  The Secretary of State noted the claimant had been assessed as posing a medium risk, as recent poor behaviour had taken place in a secure environment.  
65.	That application for judicial review was dismissed by Mr Kenneth Parker QC sitting as a deputy High Court judge, and the basis for the dismissal, again from the headnote, reads as follows: 
"1.  Article 5(4) of the convention did not have direct application for the early release provisions such that the involvement of the Secretary of State would be impermissible, unless there was a compelling reason to depart from that basis;
"2.  On a proper construction of the 1991 Act, the Secretary of State was not at liberty to delegate his functions to the Parole Board.  Moreover, the Secretary of State had no legal duty to adopt a policy of never exercising his retained power under section 35(1) of the 1991 Act.
"3.  Under section 35(1) of the 1991 Act, the Parole Board, having considered all the relevant material, had to make an assessment of risk to public safety.  Nothing in section 35(1) precluded the Secretary of State from rejecting the assessment of the Parole Board so long as his assessment of risk was rational and not otherwise viciated by legal error."
66.	I agree with that analysis and, in my judgment, exactly parallel reasoning applies to the instant case.  I would dismiss any application for judicial review based on that argument.  
67.	However, two converging arguments do remain.  Firstly, that the approach taken by the Secretary of State to his discretion is not rational and even‑handed.  Where the recommendation is against transfer, it is in reality accepted without question.  Whereas following what I infer to be a change of policy for the last complete year for which we have figures, there is active questioning of the recommendation of the Parole Board and often a difference in outcome.  That change of policy may be reasonable, but it has not been articulated as such, or justified in this case.  It cannot be related to the individual facts of the cases in the year in question:  The change is too sudden and too large, and so the claim is that this is an arbitrary policy, unequal, leading to a different approach, depending on what the advice may be. 
68.	The second ground is helpfully summarised in paragraph 16 of the claimant's skeleton argument.  As I have summarised above, it is a failure to take into account the Parole Board's conclusions, and/or a failure to give adequate reasons, in the course of the third decision by the Secretary of State following on the Parole Board's conclusions in this individual case. 
69.	In my judgment, both of these arguments are well founded.  If the Secretary of State is to retain a discretion, he must have an even‑handed approach to the exercise of that discretion.  It seems to me that there might be two approaches to a balanced exercise of the discretion retained by the Secretary of State.  Either he could determine to accept the Parole Board's advice, save in exceptional circumstances, whether that advice is for or against transfer.  Alternatively, he could look carefully and with due attention and with a questioning mind at every piece of advice, positive or negative, from the Board.  It is not academic to suggest that either approach is feasible.  It is not always the case, in relation to negative advice from the Board, that the Secretary of State will have formed a view before or even during the course of the proceedings.  In any event, time may mean that he knows more by the time he exercises a discretion than the Board did.  The instant case gives a good example how that might arise: there was a two month lapse between the advice and the first of the successive decisions. 
70.	The third decision in relation to Mr Hill, may well have reflected the more restrictive policy approach which I have discerned from the evidence.  It may be that it was to some degree defensive of the earlier positions, which had had to be abandoned twice.  In any event, the four criticisms advanced by the claimant are to be upheld.  Even in this third decision, the reasoning was not clear.  It did not, in my judgment, reflect the evidence before the Board or the conclusions of the Board.  It did not really grapple with their reasoning.  The decision was, in fact, really about risk.  Without the concern as to risk, it would seem inconceivable that decision would have been as it was.  It did not grapple with the key recommendation that emerged from the hearing, namely that the one to one psychotherapy would in fact be better conducted in open conditions, than in closed.  Hence, in my judgment that decision was irrational, and will be quashed. 
71.	Mr Grodzinski, Miss Greaney, what does remain open for argument is, if the decision is quashed there are two possibilities: either the Secretary of State can be ordered to give a different decision and to decide to transfer, or he can be ordered to reconsider the decision, each of which, because of the operation of time, may be academic, or nearly academic, given that there is a further review scheduled for next month.  So it would seem to me correct to listen to representations from both of you as to where we go following the quashing of that decision. 
72.	MR GRODZINSKI:  My Lord, can I say this: whichever route my Lord, albeit an order directing the Secretary of State to transfer to open conditions, or simply directing him to have a fourth go, in the eventuality that the result of the fourth go was, as we say it plainly should be, a decision to accept the recommendation, the hearing scheduled for 29th October could, by consent, simply be adjourned so that at that point, the claimant having been transferred to open conditions could have a period of time before his next Parole Board review to prove himself in open conditions.  So the fact of the date is not an immutable fact.
73.	Can I then take a step back and consider what the appropriate order should be.  My Lord, the Secretary of State has now had three opportunities to consider the advice of the Parole Board.  He has yet to identify any rational basis upon which he could depart from the recommendation from the Parole Board.  He has identified no evidence that was unavailable to the Board which would lead rationally to a different conclusion, and in those circumstances, in my submission, and in particular in the light of your Lordship's judgment about the different policy, the sea change evidenced in the figures, the correct relief to grant in this case should be an order requiring the Secretary of State now to transfer the claimant to open conditions sub silentio so as to give him the opportunity to prove himself there.  That is what we say. 
74.	MR JUSTICE IRWIN:  That is your application?
75.	MR GRODZINSKI:  Yes. 
76.	MISS GREANEY:  Yes, my Lord, my position in respect of the application for your Lordship to make an order that the claimant be directly transferred to open conditions, I do oppose that, my Lord, on the basis that it is the Secretary of State who is the appropriate person to take this decision.  The order has been ‑‑ the third decision has now been quashed.  What ought to happen in the ordinary way is for the Secretary of State to make another decision.  
77.	Now, I accept the Secretary of State has now made three bad decisions ‑‑ bad in law ‑‑ but in my submission that does not mean that the Secretary of State's role as decision maker should be taken over by the Court in these circumstances.  The Secretary of State will make another decision. 
78.	MR JUSTICE IRWIN:  Is there a realistic possibility that the Secretary of State would be able to make a rational decision, reflecting the evidence and the argument and all the rest of it, against transfer?  If there is, then you must be right.  If there is room for a rational decision against transfer that does deal with all the points and that is a proper exercise of discretion, then you must be right. 
79.	MISS GREANEY:  Yes. 
80.	MR JUSTICE IRWIN:  So that is the prior proposition, is it not? 
81.	MISS GREANEY:  I accept that, my Lord.  If you are of the view that there is no recognition basis upon which the Secretary of State can come to a view that transfer is inappropriate, I would accept then that takes away the need for the decision.  My instruction is I would not accept that there is no rational basis.  I accept the Secretary of State has got it wrong so far and has placed too much emphasis on risk interpreting (inaudible) the totality of Dr Hider's evidence, but I do not accept that means there is no room now for there to be a rational decision by the Secretary of State. 
82.	There is, perhaps, if I can also just address your Lordship on a sort of practical issue, which I think has some bearing on these points.  As your Lordship has identified, there is the further oral hearing now listed for 29th October.  That obviously it not very long away.  In respect of that hearing there are already, if not completed, new reports to be considered in respect of Mr Hill, saying whether or not he should be transferred to open conditions.  We do not know, and I certainly do not know, what the content of those reports is.  It is possible there has been a change of circumstance.  It may be that all the recommendations are still in place (inaudible) something has changed.  Now, if that were the position, even if a favourable decision were to be made out to Mr Hill, there is a possibility that could actually be overturned legitimately on the basis of new developments.  What my client has said is that obviously a new decision on this case will have to be approved by ministers, obviously any new decision on the existing material will be taken as soon as possible, but there is a real chance that could not be done before the oral hearing is listed on 29th October.  The Secretary of State is going to have to take a new decision anyway after the hearing of 29th October in respect of that new material, so as a practical way, what my client is suggesting is that they are going to have to make a new decision on that, so would it not be better if they make a new decision on everything, all the material available. 
83.	MR JUSTICE IRWIN:  If he is ordered to make a fresh decision within 14 days, is there existing material beyond that that was fresh material already in existence in his possession? 
84.	MISS GREANEY:  Yes.  I mean, I understand there is fresh material.  I know my client has a concern about confusing the two processes in the sense of taking an account of the fresh material now in respect of the earlier recommendation when we have not yet had the Parole Board's latest decision. 
85.	MR JUSTICE IRWIN:  It is difficult.  Because of the length of time.  Mr Hill is the sufferer from the length of time. 
86.	MISS GREANEY:  Yes.
87.	MR JUSTICE IRWIN:  But the fact is, if you have an exercise of discretion as to whether to transfer, that has to be in relation to all relevant material currently available to the minister.
88.	MISS GREANEY:  Yes my Lord, otherwise you end up in the position you could take a decision simply on the old material but then we have new material.  Would you say yes to that decision on the old material but actually that has now been overtaken by the new material, potentially.
89.	MR JUSTICE IRWIN:  That is right. 
90.	MISS GREANEY:  And that is simply what, obviously, I am urging to try to avoid that situation occurring, which is why my client suggested making a new decision on all the material was our submission as to the best way forward. 
91.	MR JUSTICE IRWIN:  Yes.  Let me hear from Mr Grodzinski about what you have said. 
92.	MR GRODZINSKI:  May I take some instructions for a moment, my Lord? 
93.	MR JUSTICE IRWIN:  Yes, but before you do.  
94.	MR GRODZINSKI:  Yes.
95.	MR JUSTICE IRWIN:  It seems to me all that I have said about the quality of the decisions that have been taken hitherto.
96.	MR GRODZINSKI:  Yes.
97.	MR JUSTICE IRWIN:  One cannot preclude a rational decision on the existing material that did deal with and rationally differ from what the Board has said.  I am not in the position of saying: it is impossible, and would have been impossible, for the Secretary of State to decide differently from the Board.  It would be a very tall order to reach that conclusion.  If that is right, then it seems to me unless there is a very strong argument against it, the Secretary of State has got to be given the opportunity to take a decision lawfully about the existing material.  If he is doing that within a timeframe that I set, that is bound to be 7 or 14 days, in practical terms.  He is then, surely, if he has a statutory duty to perform, bound to take into account fresh material that is there to be looked at, so we end up in a tangle, and that was why I needed help from both of you. 
98.	MR GRODZINSKI:  Yes, can I take some instructions? 
99.	My Lord, I have two alternative submissions: the first is this ‑‑ I will let my learned friend ‑‑ 
100.	MR JUSTICE IRWIN:  Yes. 
101.	MISS GREANEY:  I am sorry. 
102.	MR JUSTICE IRWIN:  It is all right, do not worry, I understand what is going on but you need to listen, I think. 
103.	MISS GREANEY:  Yes. 
104.	MR GRODZINSKI:  What we say as our primary case that my Lord should do, we can conceive of no situation in which the Secretary of State could rationally, in light of the Parole Board's advice and the evidence before it, come to a view other than transfer.  My Lord, even if my Lord thought there was some miniscule room for such a decision to be arrived at, in the circumstances of this case where there has been not just the delay that my Lord has carefully catalogued since the start of these proceedings, but the years of delay before that, which necessitated threats and indeed issuing of other judicial reviews, the consequences for which are that this man has been stuck.  The order that my Lord ought to give is a mandatory order for transfer.  The worst that can be said, if that order proves to be optimistic, is that in two months' time, the Parole Board say: well, he has been in open conditions for a couple of months, it has not worked out, he may go back.  So that is my first submission. 
105.	If my Lord is not with me on that, we would say that the Secretary of State ought to arrive at a fresh decision within 14 days at the very latest, and in so doing would take into account, we say, should take into account, all the fresh material.  Although I understand there are concerns from behind in the Court as to whether that would be an appropriate thing to do, we say it would be, and in particular ‑‑ can I just take instructions.  Yes, I would just for my Lord's information say that there has been a recent report from a prison service psychologist, the Nelmes successor, that says he is suitable for transfer to open conditions, so that would be yet another reason for going for ‑‑
106.	MR JUSTICE IRWIN:  I am certainly with you on the fact that if there is a fresh decision to be taken, it has to take into account every relevant piece of information, because otherwise it will be an academic exercise and runs the risk of being upset. 
107.	MR GRODZINSKI:  Yes.
108.	MR JUSTICE IRWIN:  And for better or for worse, it seems to me you cannot have an academic exercise for discretion on a statute.  Thank you.
109.	MISS GREANEY:  I am sorry, my Lord.
(Pause)
110.	Thank you, my Lord.  On the first submission that the Court should transfer now, I do not repeat what I earlier said about that, my Lord. 
111.	MR JUSTICE IRWIN:  No, I have (inaudible).
112.	MISS GREANEY:  But the additional point I make is I say that it would be wrong for the Court to order transfer to open conditions now when the Court has not had the benefit of seeing the recent material, and that is the point. 
113.	The second one, I would accept my learned friend's submission that a new decision should be based on all the material available.  The only point I differ on is that I would ask the Court for 21 days. 
114.	MR JUSTICE IRWIN:  You are lucky to get 14 from me, Miss Greaney, given the history of this case. 
115.	MISS GREANEY:  I understand that, my Lord. 
116.	MR JUSTICE IRWIN:  What I have in mind was to say that if you have a fresh decision, you take into account all material available to you as of today, but that you give that decision in writing to the claimant by 4.00 pm on Friday week, because it seems to me this man has been languishing for years, and unless you tell me that there is an insuperable objection to faxing that letter by 4.00 on Friday week, that will be the order. 
117.	MISS GREANEY:  No, I cannot say there are insuperable difficulties, my Lord. 
118.	MR JUSTICE IRWIN:  This should be the priority. 
119.	MISS GREANEY:  If I may, my Lord, there is just a point about ‑‑ I need to take some instructions on the issue of appeal on the general point, the general finding your Lordship made about the (inaudible) policy, not on the facts of this case. 
120.	MR JUSTICE IRWIN:  Yes.
(Pause)
121.	Mr Grodzinski, would you like receipt of this decision by fax or e‑mail? 
122.	MR GRODZINSKI:  Either is fine, my Lord.
(Pause) 
123.	MISS GREANEY:  Yes, I have no application, my Lord. 
124.	MR JUSTICE IRWIN:  Well, the order then is that the decision is quashed and the Secretary of State is to take a fresh decision in relation to the question of transfer of the claimant, taking into account all material available as of today, that decision to be communicated in writing to the claimant's solicitors by fax or e‑mail, whatever is convenient, but obviously subsequently in ordinary form by 4.00 pm on Friday, 28th September. 
125.	MR GRODZINSKI:  My Lord, I applied for the claimant's costs of these proceedings to be paid by the defendant. 
126.	MISS GREANEY:  Yes, I accept that in general, my Lord.  The point that I do make is the claimant has not succeeded on the Clift point, which was a separate point.  It was raised separately, that was responded to separately.  It actually took up a lot of time before your Lordship, it has taken up a lot of time in the skeleton arguments.  
127.	MR JUSTICE IRWIN:  Yes.
128.	MISS GREANEY:  I say that should be treated separately and the claimant should not recover their costs in arguing that point.  That is it, otherwise I accept it. 
129.	MR JUSTICE IRWIN:  Thank you Miss Greaney, but no.  Claimant's costs, I think that is part and parcel of the outcome; the claimant has won.  Claimant's costs to be assessed and not agreed. 
130.	MR GRODZINSKI:  Can I also ask for a detailed set of our publicly funded costs under the CLS Costs Regulations 2000.
131.	MR JUSTICE IRWIN:  Provided you give me a draft that does that, I will sign it, but I cannot remember all that jargon.  Yes, you may have it. 
132.	MR GRODZINSKI:  If my Lord just makes an order for publicly funded assessment, that is all that is necessary.
133.	MR JUSTICE IRWIN:  Yes.
134.	MR GRODZINSKI:  I am grateful.
135.	MR JUSTICE IRWIN:  Yes.
136.	MISS GREANEY:  One point, sorry, those behind me have just raised.  We understood your Lordship was going to give us 14 days but it is now Wednesday and your Lordship said to make the decision by the following Friday. 
137.	MR JUSTICE IRWIN:  That is absolutely right.  
138.	MISS GREANEY:  So that ‑‑
139.	MR JUSTICE IRWIN:  They asked for 14 days but it seems to me this has gone on long enough, and if there is no insuperable objection to them doing it by then, that is when it should be done by. 
140.	MISS GREANEY:  Yes, I think there was no objection ‑‑ well, it was not said it was insuperable to do it within 14 days, but there is a real concern that it will not be possible by that date of Friday.  I think the problem is that someone has to make the decision, it then has to be proofed by the legal department, it then has to go to a minister ‑‑ 
141.	MR JUSTICE IRWIN:  All right.  4.00 pm on Wednesday, 3rd October.
142.	MISS GREANEY:  Thank you.
143.	MR JUSTICE IRWIN:  Thank you both and thank you to the staff for sitting on, it makes everyone's day more productive.