Neutral Citation Number: [2009] EWHC 1507 (Admin)

CO/9656/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 5 June 2009
 
B e f o r e: 

MR JUSTICE BLAIR
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Between: 
THE QUEEN ON THE APPLICATION OF DANIEL FAULKNER 
Claimant

v 

(1) SECRETARY OF STATE FOR JUSTICE
(2) THE PAROLE BOARD 
Defendants 
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Mr H Southey (instructed by Chivers Solicitors) appeared on behalf of the Claimant
Mr S Kovats (instructed by Treasury Solicitors) appeared on behalf of the First Defendant
Mr D Manknell (instructed by Treasury Solicitors) appeared on behalf of the Second Defendant
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J U D G M E N T
1.	MR JUSTICE BLAIR:  This is a claim for judicial review, permission having been given by Mr David Elvin QC, sitting as a Deputy High Court Judge, on 13 October 2008.  It is another case by which a prisoner seeks damages for infringement of his Article 4 rights in respect of the review of his sentence.  There are, however, two matters which make this case different from others decided at first instance recently.  The first is that the House of Lords decided the appeals in James on 6 May 2009, and the second is that the claimant was released in January of this year, but has subsequently absconded.  His whereabouts are not presently known, except perhaps to his lawyers who have been in a position to take instructions for today's hearing, at least sufficiently to conduct the hearing itself.   
2.	The history of the matter is as follows.  The claimant, Mr Daniel Faulkner, was born on 20 October 1982.  On 5 October 1999, he was sentenced to two years' detention at Stafford Crown Court for an offence involving section 18 grievous bodily harm.  On 3 August 2001, again at Stafford Crown Court, he was sentenced to custody for life for a further offence of section 18 grievous bodily harm.  His tariff is set at two years, eight and a half months, less time spent on remand.  The position, therefore, is that his tariff period expired on 18 April 2004.  Various matters then occurred which I must refer to.  The first is that the Parole Board, who are the second defendants in this matter, recommended his transfer to open conditions on 26 May 2005.  The first defendant, that is to say the Secretary of State for Justice, subsequently rejected that recommendation.  A second recommendation to the same effect was made on 31 January 2007 and rejected on 23 May 2007.  At that point in time it was decided that the claimant's next parole hearing should be in January 2008.   
3.	On 21 December 2007, the case was referred to the Parole Board.  There plainly was not time to fix a hearing in January, and a hearing in January did not take place.  On 6 May 2008, the claimant and the Parole Board were sent what is described as the "Rule 6 Dossier".  The Parole Board gave case management directions on 16 May 2008 requiring certain additional reports.  On 13 August 2008, letters before claim were sent by the claimant's lawyers.  On 8 October 2008, the Parole Board received the remaining reports which had been required by the case management directions.  That, therefore, is a significant date because the case was then ready for hearing.  However, on 10 October 2008, these proceedings were issued, and as I have mentioned, permission was given a few days later.   
4.	On 8 January 2009, the Parole Board heard the claimant's case, and on 23 January 2009 it directed the claimant's release.  He was in fact released from prison four days later.  Then came the event that led to him absconding.  On 17 May 2009, he was arrested on suspicion of wounding a man by striking him in the face with a glass.  I do not have much information about that incident, save that I am told that the wound required stitches.  The claimant was arrested and then released on police bail.  However, on 22 May 2009 he failed to attend an appointment with his offender manager, and on that day his licence was revoked.  As at the time of this hearing, he is currently, therefore, unlawfully at large.   
5.	I will now come to the statutory framework, which is not in dispute in this case.  The claimant was a life prisoner whose release was governed by the Crime Sentences Act 1997, section 28.  This provides, so far as material, that as soon as a life prisoner to whom the section applies has served the relevant part of his sentence (and I interpose to say in this case that was 18 April 2004) and the Parole Board has directed his release, it is the duty of the Secretary of State to release him.  The important provisions are in sub‑section (6), and are as follows:
 
"(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless— 
 (a) the Secretary of State has referred the prisoner’s case to the Board; and
 (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined." 
6.	I now set out the parties' arguments, and it is fair to say that they probably (and understandably) reached their final state in the course of oral submissions over the course of today.  Mr Hugh Southey, for the claimant, makes it clear that this is, and only is, a claim brought under Article 5(4) of the ECHR, and is a claim for damages.  He submits that, following the decision in James, the Secretary of State has a limited duty to provide basic reports.  I shall come to how he puts it in relation to the judgments of the House of Lords in a moment.  He submits that that limited duty was not complied with in the present case until 6 May 2008 (although he submits that the dossier should in fact have been supplied six months prior to January 2008 on the basis that a hearing should have taken place in January 2008).  The reports were not supplied until 6 May 2008, and the first defendant, the Secretary of State, is, he argues, liable in respect of that period under Article 5(4).  As of 8 October 2008 it is common ground that the Parole Board had everything it required including the further reports.  But, Mr Southey submits, the three‑month delay until the hearing on 8 January 2009 is incompatible with Article 5(4).  He accepts that an award of damages is discretionary.  He submits that the question is what the Strasbourg Court would award in such circumstances.
7.	The Secretary of State, represented by Mr Steven Kovats, advances three primary arguments.  The first is that, since the claimant is a fugitive, his case should be dismissed altogether.  In other words, the Secretary of State's primary position is that the court should refuse to proceed with the hearing at all.  He seeks to distinguish the case of Polanski v Condé Nast Publications Limited [2005] 1 WLR 637, which was a decision of the House of Lords, on the basis that, in this case, there is a close and indissoluble connection between the relief sought by the claimant and his absconding.  That, he submits, was not the case in Polanski, where the claimant, who was a well‑known film director, lived in France, to which he had fled from the United States.  He was not prepared to come to give evidence in England in libel proceedings he had brought on the basis that, if he did so, he might be extradited to the United States to face his sentence in respect of a California conviction in 1977 for sexual intercourse with a 13 year‑old girl.  As a French citizen, he could not be extradited from France.  It was held by the House of Lords, by a majority, that this did not prevent him bringing libel proceedings in England, and, if necessary, giving evidence by videolink.  
8.	Secondly, it is submitted by Mr Kovats that, even if the court is prepared to hear the claim, "just satisfaction" in this case means that the court should not award damages at all.  Thirdly, he submits that the delay in the present case would not breach Article 5(4), and relies upon the decision in James, and in particular the judgment of Lord Hope at paragraph 21.  
9.	Mr David Manknell, for the Parole Board, makes three submissions.  Firstly, he points out that damages under Article 5(4) is the only matter that is left for decision in this case.  He submits that the judgment of the House of Lords in James, and in particular the judgment of Lord Hope, is a complete answer to the claim, and he submits that, on that basis alone, the claim should be dismissed.  Secondly, and in the alternative, if that is wrong, he submits that the claimant cannot show that he would have been released if there had been an earlier hearing, and on that basis he submits that claimant is not entitled to damages.  Thirdly, he adopts the submissions of Mr Kovats in relation to the effect of the claimant's absconding.
10.	I now come to discuss the various issues in the case and set out my conclusions.  As it appears to me there are five matters that require a ruling.  Before setting them out, I should say that Mr Kovats has submitted, in my view sensibly, that so far as any damages that are awarded are concerned, there is no need to enter into a discussion as to apportionment between the two defendants.  That is because the Ministry of Justice will effectively end up by meeting such part of any award as is attributable to the Parole Board, and the exercise is therefore an arid one.  That, of course, does not absolve the court from the duty of considering the claims in respect of delay as they arise in relation to each of the defendants, but it does mean that there need not thereafter be an argument between the two Governmental defendants taking up further time and expense.  
11.	So I come to the first question, which is this: should this claim be dismissed solely on the grounds that the claimant is a fugitive?  It appears to me that this raises a question of considerable difficulty.  The matter is raised in the defendant's skeleton arguments very briefly.  That is not a complaint on my part, because the skeleton arguments of all three counsel have been exceptionally helpful, but the fact of the matter is that it is raised essentially in a single paragraph of Mr Kovats' submissions as follows: 
"The claimant's behaviour shows such a disregard for the law and for his own liberty that it would be an abuse of the process of the court for him to pursue the present claim." 
12.	I do not think that this court on this hearing is in a position to reach a conclusion on that question.  As I made clear in the course of oral argument, I propose to leave that issue open and to consider the claim on the merits.  
13.	So I come to the second issue, which is whether, given that the claimant's claim is brought under Article 5(4), it be advanced consistently with the decision of the House of Lords in James.  Before turning to that authority, I should explain that Mr Southey's argument turns on what he submits are the three stages of a Parole Board review.  Firstly, he submits that the Parole Board is unable to do anything without the Rule 6 Dossier, and it is on the basis of the failure to provide that material that he seeks to justify his claim for damages for the period between January and May 2008.  Secondly, he submits that a further stage is reached in the review when, at the stage of directions or otherwise, there is required for production further material.  That might be, for example, in the form of a psychologist's report.  But, in any event, it happens when supplementary information is required by the Board, or indeed by the parties, and matters have to await the provision of that material.  The third stage, he submits, arises when the case is ready for hearing.  In those circumstances, he says that this case must be got on promptly and in the present case the delay in hearing the case between October 2008 and January 2009 is incompatible with Article 5(4).
14.	In the light of his submissions, I come to consider the decision of the House of Lords in James.  Given that the decision is both recent and authoritative, this is the case around which the argument has revolved.  I shall not set out the facts in detail.  Indeed, the facts are quite complex since there were three appeals involved in the case (Lord Brown, in an addendum to his judgment, deals with that aspect of the case).  In two of the three cases it had been conceded (or held) below that there had been a breach of Article 5(4), although as became clear, their Lordships did not consider that that concession had properly been made.  What the appeals had in common was that each of the claimants had received indeterminate sentences for public protection ("IPPs") with a short tariff period.  The present case, I interpose to say, is not an IPP case, but there is no suggestion that the applicable principles are different.  
15.	The first judgment was given by Lord Hope, and I can pick it up at paragraph 19 because it is an essential starting point.  He said as follows: 
"An issue as to the lawfulness of the continued detention of an IPP prisoner is raised as soon as his tariff period has expired. At that point and at reasonable intervals thereafter he becomes entitled to a review by a judicial body of its lawfulness. Lawfulness depends on there being a causal link between the objectives of the sentencing court and the prisoner’s remaining in custody." 
16.	The requirement for a review at reasonable intervals comes, among other places, from the European jurisprudence, of which one can mention simply the decision of Oldham v UK [2001] 31 EHRR 34.  What amounts to a reasonable interval is one which both the courts in Strasbourg and in this country have held to be fact‑sensitive.  
17.	To revert to the judgment of Lord Hope, in paragraph 21 of his judgment, upon which the defendants place heavy reliance, his Lordship stated as follows: 
"In R (Walker) v Secretary of State for Justice (Parole Board intervening) [2008] 1 WLR 1977, para 67 the Court of Appeal said that, if Mr Walker were to be unable to make a meaningful challenge to the lawfulness of his sentence at the time his case was heard by the Parole Board, a review of his case would be an empty exercise that would be likely to result in a breach of article 5(4). In para 68 it made the same assessment of the position in the case of Mr James. I cannot find anything in the jurisprudence of the Strasbourg court that goes that far. Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirement of procedural fairness. How that system works in practice in any given case is a matter for the Parole Board itself to determine. It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate and to set its own timetable for the information that it needs to be made available. It is entitled to expect co‑operation from those who are responsible for the management of the sentence in meeting its requirements. But a failure to meet them does not of itself mean that there will be a breach of article 5(4)." 
18.	Lord Hope then goes on to state as follows in a passage upon which the argument in the present case has turned: 
"As in the case of article 5(1)(a) [article 5(1) is not raised in this case], it will only be if the system which the statutes have laid down breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary that the guarantee that article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages." 
Lord Carswell agreed with the judgment of Lord Hope, and with the judgments of Lord Brown and the Lord Chief Justice.  
19.	Lord Brown, in paragraph 29, identifies the questions that he goes on to address in his judgment.  For present purposes, the relevant heading is "Issue 3", namely Article 5(4) which begins at paragraph 52.  His Lordship sets out the various arguments that had been advanced, and notes in paragraph 58 the claimant's argument as follows: 
"Does article 5(4) require not only that the Board is available to decide whether the prisoner has satisfied it that he can safely be released but also that the Secretary of State has enabled him to establish this — in the words of the court below (para 65), has enabled him to make 'a meaningful challenge to the lawfulness of his detention'."
20.	He says that this is a difficult question and that the claimant's argument is a strong one.  At paragraph 60, however, he says as follows: 
"In the end, however, I have come to the contrary view. I have concluded that article 5(4) requires no more than that 'a court' (the Parole Board) shall speedily decide whether the prisoner continues to be lawfully detained, and this will indeed be the case unless and until the Board is satisfied of his safety for release (or so long has elapsed without any effective review of his dangerousness that the article 5(1) causal link must be presumed broken as discussed above)."
21.	There then follow words upon which Mr Southey bases his argument: 
"I accept that article 5(4) requires the basic rule 6 dossier to be made available: without this the Board simply cannot function. But I cannot accept that article 5(4) requires anything more in the way of enabling the Board to form its judgment. Not infrequently, your Lordships were told, the Board and the Secretary of State find themselves disagreeing as to just what, if any, further material is necessary to enable the Board to decide the question of dangerousness. The Board want the prisoner to undergo another course to ensure that this, that or the other aspect of his offending has been satisfactorily addressed. The Secretary of State thinks this unnecessary and suggests that the Board is well able to decide the question on the material available. Sometimes the prisoner himself wants the review postponed on the basis that soon he will be better able to demonstrate his safety for release whereas were he now to fail he might have to wait two years for the next review. Regularly, your Lordships were told, the Board is threatened with an article 5(4) challenge unless it requires from the Secretary of State some further report or information designed to improve the prisoner’s prospects of release."
22.	Lord Brown goes on in paragraph 61 to state: 
"I have reached the conclusion that article 5(4) simply has no part to play in all this. As Mr Saini submits, it is concerned with procedure, not substance." 
23.	In paragraph 63 he sets out the conclusions that follow on the facts of the appeals before the House:  
"I would accordingly hold that Mr James’s article 5(4) claim must fail. It follows that I regard Mr Lee’s and Mr Wells’s article 5(4) claims as also having been unsustainable. Since, however, the former was conceded and the latter held established and unappealed, the House has no alternative but to remit their consequential claim for damages to the Administrative Court for assessment. Article 5(5) provides that: 'Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.'  Unless the claimants can establish that, had they been given the opportunity to demonstrate their safety for release, they would have been (or at least would have had a real chance of being) released, it is difficult to see how they could be entitled to any substantial award of damages." 
24.	The final judgment was given by Lord Judge CJ.  In relation to Article 5(4), he deals with the arguments in paragraph 129 and following.  In paragraph 131 he says as follows: 
"Stripped to essentials, and without reference to authority, the right provided by article 5(4) postulates the requirement that everyone in detention shall be entitled to challenge the lawfulness of that detention. This right predicates the availability of a tribunal vested with appropriate jurisdiction before which the prisoner is provided with the opportunity to address argument that it is not."
25.	Lord Judge goes on in paragraph 133 as follows: 
"That leaves the question of the exercise by the Parole Board of its section 28(6) responsibilities if and when the consequence of the deficiency in the arrangements made by the Secretary of State is the absence of sufficient material with which to make a fully informed but fresh assessment of risk. At the risk of repetition, there can be no problem with continued lawfulness of the prisoner’s detention. The possibility of a judicial challenge to its continuation can only arise if and when the Secretary of State has failed to comply with a release direction by the Parole Board. The question whether the Parole Board believes itself to be sufficiently informed is a matter for the Parole Board. We know that the criticisms by the Chairman of the Board of the operation of the IPP regime contributed to the setting up of the Lockyer Review and the subsequent improvements in the process. If the Parole Board failed to comply with its own public duty, or if complaints legitimately made by the Board were ignored by the Secretary of State, then the Administrative Court might see fit to intervene, to direct either the Parole Board better to fulfil its responsibilities, or the Secretary of State to comply with the reasonable requests by the Parole Board for improvements to the IPP regime, sufficient to enable the Parole Board to be satisfied that it can fully discharge its own section 28(6) public law responsibilities. The precise form of order would be for debate but an appropriate declaration would probably suffice."
26.	The Lord Chief Justice concludes in paragraph 134 as follows: 
"In expressing myself in this way, I am not to be taken to being encouraging applications by prisoners for judicial review on the basis that the prisoner may somehow direct the process by which the Parole Board should decide to approach its section 28(6) responsibilities either generally, or in any individual case. These are question pre‑eminently for the Parole Board itself. Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second‑guess the decisions of the Parole Board, or the way it chooses to exercise its responsibilities. Your Lordships were told that the Board is frequently threatened with article 5(4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the 'court' vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision." 
27.	Those being the judgments of the House of Lords, it appears to me that, as the defendants submit, the final sentence of Lord Hope's judgment in paragraph 21 is clear in its terms.  As in the case of Article 5(1), it will only be if the system breaks down entirely because the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary that the Article 5(4) guarantee would be violated and the prisoner will be entitled to a remedy in damages.  The claimant does not suggest that is the position here.
28.	Lord Brown, in paragraph 60, states that Article 5(4) requires the basic rule 6 dossier to be made available because without this the Board simply cannot function.  It appears to me that Mr Kovats and Mr Manknell are right to say that he is not there addressing the question of timing, which I am told was not the subject of argument in James.  I prefer the argument on this aspect of the case as advanced by the defendants to those advanced by the claimants and do not accept that there is any inconsistency in the judgments.  I would add this.  Recently, in a judgment handed down on 2 June 2009 in the case of Kehmel Mehmet [2008] EWHC 1202 (Admin), Bean J considered the effect of the James decision so far as that case was concerned.  He said at paragraph 31: 
"I derive from James the following propositions relevant to the present case; (a) failure by the Secretary of State in providing the opportunity for a prisoner serving an indeterminate sentence to demonstrate to the Board at a first or subsequent review that it is no longer necessary for the protection of the public that he be detained, does not render the prisoner's continued detention unlawful under ECHR Article 5(4); (b) such a failure can, however, constitute a breach of the Secretary of State's public law obligations susceptible to judicial review; (c) an example of such a failure constituting a breach of the Secretary of State's public law obligations is where it results in the Board being deprived for a long period of the reports which constitute the prisoner's rule 6 dossier, such as a current report on risk." 
29.	In that case, the court found that the Secretary of State's public law obligations had been breached.  The public law obligations, however, as I have explained, do not arise in the present case, which turns solely on Article 5(4).  In my view, the law as stated in Kehmel Mehmet is correctly stated and applies to the present facts as well.  I do not consider, with respect, that Mr Southey is correct in his submission that of the three stages he has identified, Lord Brown was concerned with the first but not the second and third stages.  He was, in my view, considering the position as a whole. 
30.	That would be an answer to the claimant's claim in this case as it has been advanced, but I should go on to consider what the position would be if the analysis that I have just suggested is a mistaken one.  That brings me to the third issue which is that, assuming that Mr Southey's submissions are correct, has an Article 5(4) breach been made out in this case?  At the heart of his submissions is the assertion that, if one looks at the timing in the present case, with a hearing apparently scheduled for January 2008, and the dossier only supplied in May 2008, and the hearing for which complete material was available in October 2008 fixed for January 2009, there is a delay of such a nature as to bring Article 5(4) into play.  
31.	In my judgment, Mr Kovats' submissions in this respect are preferable.  I accept that, in a case of this kind, one has to take into account what has happened since in order to determine whether Article 5(4) rights were infringed or not.  Looking at the totality of the matter, there has, in my view, been no infringement in this case.  Whether reviews have happened at reasonable intervals is, as Oldham and other authorities have established, something which depends upon the facts.  As has been submitted, the claimant made sustained progress over a number of years.  There is no real basis for a finding that he lost a real opportunity of being released earlier than January 2009.  In my judgment, on the facts of this particular case, a review within a reasonable interval was held.  
32.	It is to be noted that in the case of MacNeil [2001] EWCA Civ 448, the Court of Appeal said that, in the light of Oldham, there was no breach of Article 5(4) where there had been a two‑year interval between reviews.  It is, however, important to add that Lord Phillips MR in an addendum to the main judgment made it clear that the case turned upon its particular facts: 
"This is a case which has turned upon its particular facts, as the Strasbourg court has recognised is appropriate. No general proposition can be based upon it to the effect that a two year interval will satisfy the requirement derived from Article 5(4) of the Human Rights Convention that a person deprived of his liberty shall be entitled to have the lawfulness of his detention reviewed at reasonable intervals."  
That qualification applies equally here.  
33.	The fourth issue is as follows.  If, contrary to the above, Mr Southey is nevertheless correct to submit that Article 5(4) has been infringed, can the claimant show that this has had any causative effect in that he would have been released earlier?  The argument has turned entirely upon the terms of the Parole Board's decision of 8 January 2009, which was promulgated on 23 January 2009 (and which I should record was the only documentary evidence to which I was referred during the hearing).  A number of matters emerge from that decision.  In paragraph 4, the Board refers to the lifer manager's report that he was impressed by the maturity and insight that the claimant was showing.  His motivation to participate in the process, empower himself and take responsibility for his next targets was, he said, a credit to him.  
34.	The Board then went on to deal with what is admitted to have been a lapse in the claimant's behaviour, which resulted in an adjudication against him in September 2008.  This related to him having a mobile phone and attempting to dispose of it.  The Board took the view on the basis of subsequent evidence from a psychologist, that this was just a lapse.  It went on to record the view of other professionals involved in the case, some of whom took the view that the defendant should be transferred to open conditions prior to release as a natural progression from closed conditions.  It then recorded the view of a Ms Brooks that, in her view, the claimant did not need to "go open" but could be safely managed in the community.  In paragraphs 7 and 8, the Board as follows: 
"7.  You told the Panel that you sought release, and had learned a great deal from the disappointments of your previous refusals of transfer to open conditions by the Secretary of State.  You explained the recent mobile phone incident and the Panel accepted the honesty of what you said, as had Ms Pixley in her report.  The Panel also noted that this adjudication had not affected your enhanced status within the prison and that otherwise, your recent prison behaviour had been excellent.  It was satisfied that you had learned from this experience [that is the mobile phone experience].  It was also satisfied with your plans for release and strategies for dealing with any problems that might arise.
8.  At the conclusion of the evidence, upon submissions to the Panel, it was said on behalf of the Secretary of State that 'it was now apparent that the Secretary of State's view had not taken account of the further significant information placed before this Panel'.  The Panel felt that this was an honest assessment of the evidence that it had heard." 
On that basis, the Panel directed the claimant's release and, as I have said, he was released some days later.
35.	Mr Southey submits that when one reads the Parole Board report it is plain that the position would have been precisely the same in January 2008, a year earlier, had a review taken place at that point in time.  He submits that there was nothing to show that release would not have been ordered at that point in time.  Again, I prefer the submissions of the defendants on this point.  It appears to me that, when one looks at the facts of the case in the round, what one sees is a progression.  It seems to have been accepted that so far as the claimant's behaviour is concerned, the September 2008 adjudication relating to the mobile phone was a single lapse.  It seems to me that it is not possible to draw the inference from the January 2009 decision that the claimant would have been released earlier.  On the contrary, this is, in my judgment, best viewed as a case in which there has been progress, and good progress, resulting in a decision for release and subsequent release.
36.	I come, therefore, to the fifth and last question that I have to decide, and that is if, contrary to the above, Mr Southey is right on the preceding points, whether the claimant is entitled to damages, and if so, how much.  Mr Southey, on behalf of his client, claims £35,000.  He very fairly accepts that this is far more than any other award that he was able to draw attention to, either in the Strasbourg jurisprudence or in the domestic jurisprudence.  Were I minded to make an award of damages in this case, I would have awarded damages in the region of £1,000 to £2,000 awarded in the Strasbourg cases, or perhaps up to the £4,000 awarded by Stanley Burnton J in KB v the Mental Health Tribunal [2004] QB 936.  But I have to deal first with the submission that is made by the defendants that, in circumstances of which the claimant has absconded and is presently unlawfully at large, he should not be entitled to damages at all for the alleged failures in dealing with his case. 
37.	It is to be noted that, in terms of judicial remedies, section 8 of the Human Rights Act 1998 makes it clear that the award of damages is a discretionary one, and Mr Southey rightly accepts this.  One finds that from the use of the word "may" in section 8(1), and perhaps more pertinently in sub‑section (3), which provides as follows: 
"No award of damages is to be made unless, taking account of all the circumstances of the case, including— 
 (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
 (b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made."
Furthermore, under the Strasbourg jurisprudence, an award of damages is made in circumstances in which the court considers it to be "equitable" to do so. 
38.	I of course do not know the precise circumstances of how it comes to be that this claimant has absconded.  I do not know the circumstances of the incident that led to his arrest and his subsequent release on bail.  It appears to have involved an act of violence with the victim being struck in the face with a glass.  I recall that the claimant's offences that gave rise to his sentence were both section 18 GBH offences in 1999 and 2001 respectively.  There has not been an application for an adjournment to see whether these matters could be explored further.  That is not in any sense a criticism, and no doubt the claimant was wise to proceed today.  However, the fact is that, as I understand it, he has been in touch with his lawyers.  He could have given information, but it has not been provided to the court.  
39.	Mr Kovats submits that public confidence in the administration of justice is a relevant consideration in terms of giving damages for the alleged failure to deal properly with his parole to a prisoner who is on the run.  There is, in my view, substance in this submission.  I have indicated why, in my judgment, this claim fails.  However, had I been of the contrary view, I would not have felt able to make an award of substantial damages to the claimant in these circumstances.  I do not think that an award would be necessary to afford him "just satisfaction" or that such an outcome would be considered a fair one.  
40.	However, for reasons I have given earlier, that particular expression of view is not necessary to determine the outcome of this case.  The claim is dismissed.
41.	MR SOUTHEY:  My Lord, I have two applications to make: one, I suspect, is uncontroversial; one, I suspect, is controversial.  The uncontroversial one first is that the claimant seeks Legal Services Commission assessment.
42.	MR JUSTICE BLAIR:  Certainly.
43.	MR SOUTHEY:  The controversial one is that the claimant seeks permission to appeal.  My Lord, your Lordship's judgment has very significant implications for a large number of claims, and your Lordship will be aware, I have little doubt, sitting in the Administrative Court relatively regularly, that there are a lot of problems at the moment that arise in relation to Parole Board reviews.  I am very familiar with a large number of claims, and I know that other people are appearing in a large number of claims.  Your Lordship's judgment obviously mimicked ‑‑ has been delivered since James was decided by the House of Lords, but in some ways maybe it was decided on its own specific facts.  I also do not know at this stage whether the Secretary of State is appealing.  What your Lordship's judgment is the first to do is to really engage with what was clear this morning, which is that there is at least an apparent tension between what Lord Hope says and Lord Brown says about Article 5(4) and the rule 6 dossier.  That is a matter, in my submission, of some real importance.  If the reality is that prisoners have only a public law remedy in relation to failures to produce rule 6 dossiers, that will, for example, have implications if they want to claim damages.  It may have implications also as to the standard of review, because in practical terms the case law probably suggests that where one has a human rights claim it is for the court directly to determine whether or not there has been a breach.  If it is public law, then it would probably be a Wednesbury reasonableness challenge in terms of delay.  So it is not merely about damages.
44.	MR JUSTICE BLAIR:  No.
45.	MR SOUTHEY:  So how one resolves that is a matter, in my submission, of real importance to a large number of prisoners, and is appropriate for determination by the Court of Appeal.  We would say also it is not an issue that is necessarily straightforward given the tension between what Lord Hope said and what Lord Brown said.  That is the primary reason why we seek permission to appeal.  There are other issues that arise potentially in relation to both how one resolves the issue of the timing between reviews, but the primary issue is the approach to Lord Brown.  
46.	MR JUSTICE BLAIR:  Mr Southey, if I may say so, that was a very graciously put application.  I am not going to give you permission to appeal.  I think that the facts of this particular case mean that neither of the two threshold conditions are met.  Furthermore, if there are to be appeals in relation to this particular point, it may be best, I think, for the Court of Appeal to decide which cases it takes, and I am going to leave it to their Lordships should you wish to pursue it.  Is there anything else? 
47.	MR SOUTHEY:  Not from me.
48.	MR KOVATS:  My Lord, we would ask that the claimant pay the defendant's costs subject to section 11 of the Access to Justice Act 1999.  Now, I have no idea whether there is any realistic prospect of getting any money off him, but given his behaviour we would in this case at least want to keep the option open.
49.	MR JUSTICE BLAIR:  Mr Southey?
50.	MR SOUTHEY:  It is very difficult for me to oppose that, subject obviously to section 11 of the Access to Justice Act because he is a legally aided client and is entitled to that protection.
51.	MR JUSTICE BLAIR:  Fully understood.  If I could ask the three of you to wait and make sure that the associate gets the order correctly, I would greatly appreciate that.
52.	MR MANKNELL:  My Lord, the same application is made by the Parole Board.  The claim was brought against both defendants, and as your Lordship indicated, the Parole Board did need to be here today.
53.	MR JUSTICE BLAIR:  Yes, it will be the same order in respect of each.  Thank you all very much indeed.