England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		3rd September 2009

1. THE DEPUTY: In this expedited claim for judicial review, the claimant, a serving life prisoner, challenges the failure of the Parole Board to list his case for an oral hearing which he hopes would lead to his release. He contends, and the Parole Board accepted at the beginning of the hearing before me, that the delay in his case has been such as to amount to a breach of his rights under Article 5(4) of the European Convention on Human Rights. The issues are whether the Parole Board operates a proper policy for dealing with the cases of prisoners who may deserve early priority in listing their cases and whether such policy as it operates has been correctly applied in the claimant's case.
2. The Parole Board failed to lodge an acknowledgment of service or grounds of resistance but lodged a skeleton argument and a detailed witness statement just before the hearing. No objection was taken on behalf of claimant to the application that the skeleton argument be treated as the grounds of resistance and I direct that it should do so.
3. The hearing of this claim was originally listed for 26th June 2009 but was adjourned in order to await the judgment of Collins J in R (on the application of the Betteridge) v Parole Board [2009] EWHC 1638 (Admin), to which I refer later.
4. At the commencement of his submissions on behalf of the claimant, Mr Bunting, counsel for the claimant, asked me to adjourn the hearing again, this time pending delivery of a reserved judgment by a Deputy High Court Judge in another case, Wells v Parole Board (CO/5111/2009), which was understood by counsel to give rise to the same, or at any rate similar issues on broadly similar facts. It was submitted that it was undesirable to risk the possibility of inconsistent decisions at first instance. The Parole Board's position was that the present case was ready to be heard and could continue. I refused the adjournment, taking the view that, where the essence of a case is that a serving prisoner is complaining of delay, further delay is to be avoided and in any event that this case would be likely to turn on its particular facts.
5. The position of a life prisoner such as the claimant was summarised by Collins J in his judgment in Betteridge, at paragraph 4:

"By virtue of section 28 of the Crime (Sentences) Act 1997, when the tariff comes to an end the prisoner in question has the right to a hearing before the Parole Board, and if the Parole Board directs his release then the Secretary of State must release him on licence. The Act does not require the Secretary of State to refer the case to the Board unless the prisoner applies for that to happen, but the reality is that the Secretary of State routinely does refer post­tariff lifers to the Parole Board. The reason behind that is that it is common ground that Article 5(4) of the European Convention on Human Rights requires there to be a speedy hearing before an independent judicial body, and the Parole Board it is accepted is the equivalent for the purposes of the Convention, to determine whether the continued detention is lawful. In fact it is the practice of the Secretary of State, in cases where the tariff exceeds 3 years, to provide a dossier to notify the Parole Board 6 months before the end of the tariff. The purpose behind that being the obvious one, to enable the Board to put in train steps to ensure that there is a hearing as soon as reasonably possible after the tariff is served."

6. On 16th September 2003, the claimant was convicted after a trial of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. He has a long history of convictions for violent offences. He was sentenced to an automatic term of life imprisonment. The specified part of his sentence was set at three years, the notional determinate sentence having been identified by the sentencing judge as six years. The claimant's minimum term of imprisonment therefore expired on 16th September 2006.
7. In a decision dated 19th December 2007, the Parole Board Panel which had heard the claimant's case did not direct his release, but indicated that it was satisfied that it was appropriate to transfer the claimant to open conditions. On 6th February 2008 the Secretary of State accepted that recommendation. The claimant has accordingly been serving his sentence at Her Majesty's Prison Sudbury in open conditions as a category D prisoner.
8. The claimant was notified that his next Parole Board hearing would provisionally take place on 19th June 2009. On 1st September 2008, the defendant, the Parole Board, sent HMP Sudbury a letter stating that the claimant's case was provisionally listed for oral hearing in March 2009. The parole dossier was received by the Parole Board on 30th October 2008. In accordance with the usual procedures, on 9th December 2008, the Parole Board issued Intensive Case Management ("ICM") directions.
9. The claimant's case was assessed by the ICM member in circumstances with which I will deal in more detail below. If, at the stage of assessment by the ICM member, the member had considered there was no realistic prospect of release of the claimant, his case would have been directed to a paper review rather than to an oral hearing. In the claimant's case, an oral hearing was considered appropriate and directions were duly given for preparation for such a hearing.
10. The history of the listing of the claimant's individual case is set out in detail in a witness statement prepared by Natalya O'Prey, the Parole Board's Deputy Head of Casework. She explains that on 21st January 2009 the Parole Board took steps to fix the next available date for the hearing. Given the limited judicial and other resources available to the Board, there are only a limited number of hearings that can be provided per month and, of more direct relevance to any individual case, only a limited number of hearings that can be provided at any one prison establishment per month. A listing exercise is carried out every month. Priority is generally given to those whose review date arises first; for example someone whose tariff expires in, say, October 2008, would generally be given a hearing date before someone whose tariff expires in December 2008. Given the Board's workload and the fact that there were other prisoners ahead of the claimant in the prioritisation system, the Parole Board was unable to accommodate the claimant's case for hearing in April 2009, which was the earliest month for listing available to him.
11. In February, March and April 2009, the Board carried out its listing exercises for May, June and July. The claimant's case was again put forward for a hearing date on each occasion and on each occasion the Board was unable to accommodate him as there were other cases of higher priority. The Board attempted to allocate to the claimant a hearing space that became available at short notice at HMP Sudbury on 20th May 2009. Unfortunately, due to changes in the claimant's personal circumstances, he was unable to be put forward for that hearing date.
12. Ms O'Prey records that the claimant's case was most recently put forward for a hearing date in October 2009. The listing exercise was completed on 7th August 2009 and, again, the Parole Board was unable to accommodate the claimant's hearing in October. Including the claimant's case, there now remain 27 cases still awaiting listing at HMP Sudbury which were due to be heard by October 2009 or earlier. Of those 27 cases, five were due to be heard by November 2008, January 2009 or February 2009. Five were due to take place by March 2009 and the remaining 17 were due to take place between April and October 2009. As is obvious from those dates, a number of prisoners remain in the system at HMP Sudbury with earlier priority than the claimant, other things being equal.
13. Ms O'Prey cannot predict at this stage when the claimant's review would be heard. As she has emphasised, the claimant's case has been put forward for listing in every listing exercise that has taken place since the Board has been in a position to put the claimant's case forward for a hearing.
14. The listing procedures are a complex logistical exercise. The Parole Board conducts hearings at 139 individual penal establishments across England and Wales and on occasion will conduct hearings in Scotland and Northern Ireland. The Board is currently listing oral hearings about three months in advance. Each month's listing is approached as a global effort. Each month, case managers in the oral hearings team in the secretariat compile a list of cases at each prison which are ready to be listed. These are cases which have been through ICM assessment where any pre-listing directions have been complied with and which have been assessed by a Board member as fit for listing. The cases are put forward to the listing office of the Board, which is notified of the type of case, the relevant date on which the case was due to be listed and giving dates to avoid for witnesses. Special circumstances, such as the need for a specialist panel, are also taken into account.
15. In the most recent listing exercise, that completed on 7th August 2009, no fewer than 998 cases were put forward for listing. In the event, the Parole Board was able to list only 226 of them for October 2009. There were insufficient judicial resources to list the remaining 772 cases in October 2009.
16. As to prioritisation of listing as between individual prisoners, Ms O'Prey gives the following explanation. There is a listing framework, the "Parole Board Listing Framework", described as a "Listing Tool for the Prioritisation for Oral Hearings". It provides in part as follows:

"Where there are more than one case with the same due date, cases will be listed in the following priority

1. Recalls (lifers/IPPs/extended sentences)

2. First review at tariff expiry (lifers/IPPS)

3. Further reviews after tariff expiry (lifers/IPPs) and ESP annual reviews after recall

4. DCRs

5. Pre-tariff (lifers/IPPs)

Prioritisation can be further refined within each category, by the length of delay and number of occasions it has been deferred.

Once the initial list is produced, where there is only one case on a particular day at a particular prison, other cases can be slotted in accordingly using the same order of priority.

This policy is flexible. In particular, where special circumstances are put forward by the prisoner for prioritising (such as medical/mental health issues, compassionate reasons etc) the case must be put before the duty ICM member for assessment. The member may direct that a case has a higher priority than would normally be indicated by the list above and should accordingly receive precedence."

17. As is apparent from the listing framework, it is recognised that some cases may give rise to special circumstances which may dictate special treatment. Ms O'Prey deals with these situations as follows:

"If there are special circumstances that should be taken into account when prioritising listing, these will also be communicated (for example medical/mental health issues, compassionate reasons etc). In such circumstances, if this information became known to the Board after the case had been assessed at ICM stage, the dossier and any accompanying evidence of special considerations would have been put before an ICM member or a duty judge to consider directions to expedite due to special circumstances. If the special considerations were known at the time of initial ICM assessment, any expedition directions would be made along with the usual ICM directions for reports and witnesses.

On occasion, the circumstances will call for an ad hoc listing, for example if the reason for expedition is particularly urgent. If that is the case, the matter will be removed from the general listing exercise and a consideration will be made either to deferring [sic] a case already listed to enable the expedited case to be heard in its place, or attempts will be made to constitute an additional panel in order to hear the case earlier than ordinary listing practices will allow."

18. She explains the significance of preliminary assessment of the cases on paper by a single member panel or ICM member. As she puts it:

"In accordance with Rule 11(2) of the 2004 Parole Board Rules, it has since 2004 been the practice of the Board for a single member to take an initial decision as to whether there is a realistic prospect of release in any particular case. Cases where there is a realistic prospect are referred for hearing before a three member panel. Cases where there is not a realistic prospect of release are refused by way of a paper decision.

The prisoner then had a right under Rule 12 to request an oral hearing. In other words, although Rule 11(2)(b) of the 2004 Rules were worded as permitting the single member panel to 'make a provisional decision as to the prisoner's suitability for release", in fact it was the Board's policy to send directly to an oral hearing, any case assessed as having a realistic prospect of progression (either for a recommendation to move to open conditions or to direct release). Effectively, this stage acts as a 'sift' to 'weed out' cases where there is no realistic prospect of progression.

Under the Parole Board (Amendment) Rules 2009 which came into force on 1 April 2009 it is now made explicit that this is what the single member panel or ICM member is to do, ie that they are to consider whether or not the prisoner is 'unsuitable' for release. If they consider a prisoner to be unsuitable they make a decision on the papers to that effect and the prisoner can either accept that decision, of if s/he believes that there are reasons for holding an oral hearing, must make a request for a reconsideration of his case by the full panel at an oral hearing. There is no longer an entitlement by right to an oral hearing.

Thus, insofar as the Claimant is now claiming that there has been a failure to take into account the merits of his case by the Board, this is not correct. His case has been referred to an oral hearing because the ICM member thought there was a chance he may be suitable for ... release.

However, it is important to emphasise that this is not a detailed consideration of the merits of the Claimant's case, and nor could it be. Having passed the initial 'not suitable' threshold it is not administratively workable for there to be any further detailed consideration of the likely merits of each individual case that is ready for listing so as to enable listing decisions to take account of the relative merits of all the cases at issue. It would also be inappropriate for a single member panel to effectively tie the hands of the future oral hearing panel who will hear oral evidence not, obviously, available to that single member."

19. Accordingly, at the stage of the ICM review, an assessment is made of the merits of the prisoner's case for release. If there is not a realistic prospect of release, the matter is dealt with on paper with a right to request an oral hearing. This is not a detailed consideration of the merits of the individual case for priority in listing. Ms O'Prey goes on later in her witness statement to explain in detail, in terms which have not been criticised, why it would not be administratively workable to devote resources to further and more intensive reviews by individual single members taking decisions on paper in advance of an oral hearing as to which prisoners might appropriately have their cases heard sooner than others.
20. I return to the claimant's individual position. His case was before the Parole Board on 13th December 2007. As I have mentioned, he had been sentenced to life imprisonment in September 2003 against the background of a pattern of violent offending. On that occasion the Panel, which was empowered to direct his release if satisfied that it was no longer necessary for the protection of the public that he be confined, was not so satisfied. His transfer to open conditions was recommended and in due course took place. In November 2008, the claimant was assessed as presenting a medium risk of harm to members of the public. That is the current assessment. The point is powerfully made on his behalf that this assessment depends largely on the risk factors associated with his long history of violent offences and that this aspect of his character and history cannot be changed by him, however hard he works in prison.
21. That is of course true, but it remains the case that he is assessed as medium risk. He has been the subject of adverse adjudications for offences against prison discipline. A report prepared by a psychologist instructed on behalf of the claimant, prepared after a review of his extensive dossier and an interview lasting some two and a half hours on 21st April 2009, concluded that the author:

"... would support his release to the community under the supervision and management of probation ... It will be particularly important to ensure that his thinking and behaviour does not regress to the previous pattern of perceiving hostile intent and over-reacting to provocation."

22. The claimant has been released from prison on temporary licence on three occasions of day release, on two of which he was accommodated by a prison officer. Those occasions have been a success.
23. None of the reports on the claimant which have been prepared during his imprisonment by those responsible for his custody and discipline has yet recommended his release. It is of course possible that such a recommendation would be made for the oral hearing before the Parole Board when that happens.
24. As it was put by his own counsel, after a more detailed review of the dossier than I have summarised here, the claimant has a strong but not overwhelming case for release. I need only go so far as to agree that his case for release is not, so far as one can tell from the papers, yet an overwhelming one.
25. The claimant's case has been ready for hearing before the Parole Board since receipt of the dossier on 30th October 2008 (subject to update of reports for the actual hearing). The more significant date is March 2009, which was the original date proposed for the relevant hearing. It has now been put forward for listing for a hearing to take place in May, June and July 2009. The claimant still does not have a date for the hearing, although he knows it will not be in September or October 2009.
26. Against that background, the Parole Board accepted at the start of the hearing before me, having earlier denied it, that there has been a breach of the claimant's rights as enshrined in Article 5(4) of the Convention. He has not had the speedy hearing before the independent judicial body to which he is entitled. I agree that this concession was correctly made.
27. On behalf of the claimant, it is submitted that the court ought now to intervene. It is submitted that I ought to make a declaration as to breach of Article 5(4) and ought to direct the Parole Board to arrange an oral hearing on the next available date suitable for witnesses, and that I ought to require the Parole Board to prioritise the claimant's case. To do so, it was contended, would vindicate the claimant's rights and would provide him with the effective remedy enshrined in Article 13 of the Convention (which is of course not a provision which is given effect in the Human Rights Act 1998).
28. As is obvious, such a mandatory order would involve a direction by the court that the claimant's case should be prioritised for hearing ahead of the cases of other prisoners who are not before the court and of whose position the court is ignorant.
29. In R (James) v Secretary of State for Justice [2009] 2 WLR 1149; [2009] UKHL 22, the Lord Chief Justice, Lord Judge, said this in the concluding paragraph of his speech:

"... 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 ... 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."

30. The precise circumstances of the position of the claimant in James are not replicated in the present case, but Lord Judge's observations provide guidance at the highest level as to the approach which the Administrative Court should take in a case such as the present.
31. In his decision in Betteridge, Collins J addressed the difficulties caused by delay in the arranging of hearings by the Parole Board. After discussion of the facts of the particular case before him and the decision of the House of Lords in R (James) v the Secretary of State for Justice, Collins J said this at paragraph 27:

"... what is being said is that the 5(4) rights have been breached and the claimant is entitled to a declaration at least that that is the case. He also sought, in the claim as originally formulated, a mandatory order requiring that his case be heard in September. That is no longer pursued, and rightly so, if only because it would be inappropriate for an individual, by making a claim for judicial review, to jump the queue at the expense of those who do not seek judicial review."

He continued at paragraph 28:

"I am satisfied, as I have said, that the Parole Board was correct to accept that there is here a breach of Article 5(4), because, and only because, in the circumstances of this case the reason why it was not heard at an earlier date was because of the lack of necessary man power having regard to the pressures upon the Board. But, I am equally satisfied that there is no conceivable claim for damages which will follow, because the inevitable result of a hearing which complied with Article 5(4) would have been that the claimant was not entitled to release. The very best he could have hoped for was a decision that he ought to be placed in open conditions with a view to possible release at the next review hearing..."

He continued:

"29. The question then is whether I should grant any specific declaration. [Counsel] accepts that it is not of the greatest importance whether a declaration is granted or not, because the terms of the judgment can show what the situation is. In all the circumstances I do not think that it is necessary for me to make any formal declaration in the circumstances of this case. I have already recorded that there was a breach, but it is a breach that will not provide, for this particular claimant, any great advantage. It does make the point, and it is a point that needs to be made, that there is an independent requirement under 5(4) for a speedy period. However, there is no question but that steps are now being taken by the Board in conjunction with the Ministry to ensure that the breaches that have occurred, and certainly were capable of occurring, will no longer occur.

30. It is obvious that the measures put in place to alleviate the problem will not have immediate effect. The evidence before me ... makes it clear that the delays continue and the backlog has not improved, and indeed that latter point is made clear by evidence produced by the Secretary of State and by the Parole Board. But, as I say, one has to recognise that the changes can not be expected to take place overnight. I do not doubt that the authorities will now appreciate the need to get on top of this problem and to ensure that the hearings that are required are provided, and that the requirements of Article 5(4) are met. While, as I say, in the circumstances of this case, it does not particularly avail the claimant because he will not have achieved release, there may well be cases where that is not the case, and I am glad to see that one of the measures put in place is a more flexible approach by the Board to consideration of cases which do need priority. Obviously, if it has been made clear, perhaps in a pre­tariff hearing, that a particular prisoner, once he has served his tariff, is a real candidate for immediate release, then the sooner that particular individual has a hearing the better."

32. I interpose here that the claimant in this case is not obviously in the position of the claimant in Betteridge who had, as the court concluded, no immediate prospect of release at his hearing. That does not appear to be the claimant's position. I approach his case on the basis that he has or may have a realistic prospect of actual release at his hearing. I return to Collins J's judgment at paragraph 31:

"In the light of what is being done, it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) unless there are very special circumstances, something has gone badly wrong despite the new arrangements in that prisoner's particular case. It will not be helpful, either to the prisoner or to the court, if claims are brought which in reality, because of the existing situation, are not likely to achieve any sensible redress and merely add to costs. Of course, one has sympathy with those who may stay in prison longer than they perhaps, on one view, ought to. That is a thoroughly unsatisfactory state of affairs. But, equally, the court cannot do the impossible. We cannot make orders which are only going to create difficulties for others and are not in any way desirable, because, as I have already said, it is not helpful that prisoner A gets relief which may advance him in the queue but which inevitably means that prisoner B has a longer wait. As I repeat, absent special circumstances, claims of this nature should now be discouraged."

33. In the present case, it is contended on behalf of the claimant that the Parole Board procedures for prioritising which prisoners should achieve a hearing are inadequate because they do not prioritise cases by reference to the merit of the prisoner's actual case for release. In the light of the evidence of Ms O'Prey, to which I have referred, I do not agree that the procedures are open to those criticisms. The merit of the case for release is considered at the ICM stage and special circumstances, if any, are taken into account later. There are limits to what can be done by way of continuous or repeated assessment on paper as to whether prisoners, and which of them, should have their cases prioritised. More fundamentally, it is in my judgment inappropriate for the court to attempt to design for the Parole Board how it should allocate its limited resources. Resources expended on preliminary paper reviews, necessarily on incomplete material, are not available for the Parole Board's other work. No-one suggests that the current position is completely satisfactory, though it is to be hoped it is improving rather than the reverse. There is in my judgment nothing improper or irrational in the system which Ms O'Prey has described, which is designed to bring to the fore those whose cases for some special reason merit a hearing sooner rather than later.
34. It is contended on behalf of the claimant that his case being a "strong but not overwhelming" case for release, nonetheless falls within the category of "very special circumstances" which Collins J referred to in paragraph 31 of his judgment in Betteridge. I do not agree. Nothing I have been shown in the claimant's case leads me to the conclusion that his position is so special that I ought, in ignorance of the merits of the cases of other prisoners, to direct that his case ought to be heard before theirs.
35. I turn to the claimant's contention that I ought to make a formal declaration of the breach of his Article 5(4) rights, given that the Parole Board has conceded that there has been such a breach. It is contended on his behalf that there would be some practical benefit to the claimant in such a declaration, but I have to say that I was unable to discern it.
36. In the light of my conclusion that his case does not give rise to any very special circumstances, I do not consider that it would be appropriate to make a declaration which might appear to give the claimant some badge of exceptionality which other prisoners who have not brought proceedings would not achieve. I have not been persuaded that the claimant's case ought to be prioritised over theirs and accordingly I decline to grant a declaration which might give the impression that I held a different view. In my judgment, this case is one of those squarely within the category of cases referred to by Collins J where, once his Lordship's judgment was given, it was not appropriate for the prisoner to take, or in this case to continue with, proceedings against the Parole Board.
37. There is included in the claimant's case a claim for damages. Such a claim is critically dependent on the claimant's case for release on review when the oral hearing takes place. I accept the defendant's submission that the claimant has not in these proceedings established any claim for damages and in those circumstances the damages claim should be dismissed.
38. MR MURRAY: As far as the order itself, my Lord, I would simply ask that the application for judicial review be dismissed. We do not make any application for costs.
39. THE DEPUTY: Is it appropriate to dismiss it? You got to the door of the court denying that there had been a breach of Article 5(4) and then conceded it on the day.
40. MR MURRAY: Well, so far as it is relevant, there was no breach of Article 5(4) conceded and the concession -- it was worded along the lines that it was accepted that, should the delay continue, it would be likely that an Article 5(4) breach would eventually --
41. THE DEPUTY: I have to say, that was not my understanding.
42. MR MURRAY: In the event, we conceded, as you observe, my Lord.
43. THE DEPUTY: Maybe we are at cross purposes. You conceded it on the day.
44. MR MURRAY: Correct.
45. THE DEPUTY: In those circumstances, is it appropriate to dismiss the claim for judicial review?
46. MR MURRAY: Well, in my submission, yes, my Lord, because in reality the claim has failed and it has failed for the reasons given by Collins J, that there was no real benefit to the claimant in bringing the proceedings and in my submission the purpose of Betteridge was to indicate that there was little purpose in bringing such Article 5(4) judicial reviews and the act of dismissing this claim perhaps represents that actuality.
47. THE DEPUTY: Collins J in Betteridge made simply no order on the claim, did he not, rather than dismiss it?
48. MR MURRAY: Yes.
49. THE DEPUTY: As is recorded at paragraph 33.
50. MR MURRAY: Yes, absolutely. My Lord, I am sure we will be content with that situation.
51. THE DEPUTY: But the claim for damages ought to be dismissed in any event.
52. MR MURRAY: Indeed.
53. THE DEPUTY: All right. Mr Bunting?
54. MR BUNTING: As to the point that your Lordship has just raised, I think in this case we are very much on the same ground as in Betteridge. The Parole Board conceded, albeit very late in the day, a breach of Article 5(4) and your Lordship has noted in your Lordship's judgment that that concession was correctly made. In other words, it would be inappropriate in my submission to dismiss the claim for judicial review because the claimant has very much succeeded in vindicating that aspect of his claim. In other words, my submission would be the same approach should be taken in this case as was taken in Betteridge. (pause)
55. THE DEPUTY: Do you want to say any more about that?
56. MR MURRAY: Only, my Lord, that I have just confirmed with my instructing solicitor that certainly the Parole Board's view is that the claim -- it would be useful to have the claim dismissed formally in order to demonstrate that Collins J's judgment in Betteridge has teeth, if I can put it like that.
57. THE DEPUTY: Yes.
58. MR BUNTING: I think your Lordship has very much demonstrated that already, in the terms of your Lordship's judgment, and there would be no real need to go any further.
59. Your Lordship I have two applications which follow from this position and the first of which is uncontroversial, I would apply simply for the claimant's costs to be subject to detailed assessment, and the second, your Lordship, follows from the fact that the claimant has succeeded very much in having his Article 5(4) rights vindicated in as far as he has got a finding from this court that Article 5(4) was correctly conceded by the Parole Board. Your Lordship will of course recognise that much of the oral argument was directed to the application for relief but indeed much of the argument on paper and the preparation for this case was directed to addressing the position as to whether or not there had in fact been such a breach of Article 5(4). The difficulty for the claimant's position in this regard was compounded by the late service of any formal response from the Parole Board to his arguments, which only arrived at 5.30 on the day before trial. For those reasons, your Lordship, I would simply invite the court to make an order that a half of the claimant's costs be paid by the Parole Board in this case. Unless I can assist any further on those points.
60. THE DEPUTY: Thank you very much.
61. As to the formal order, I dismiss the claim for damages but otherwise make no order on the claim for judicial review. I order a detailed assessment of the claimant's publicly funded costs.
62. As I indicated in my judgment, it is my view that there is no demonstrable element of exceptionality in the claimant's case. I do not consider that these proceedings advance his position usefully and I consider that his position is essentially disposed of by the decision of Collins J in Betteridge. In those circumstances, I propose to order the defendant to pay the claimant's costs up to 1st July 2009, which is about a week after publication of the decision in Betteridge. I make no order for costs thereafter.
63. MR MURRAY: My Lord, one further order I would seek, which is perhaps an expedited transcript.
64. THE DEPUTY: Is it appropriate for me to order that? I can see that you might want it. I will request, how about that, that the transcript should be expedited, albeit, presumably because the Parole Board wants it in order to send, for what utility it may have, to those representing other claimants in similar circumstances.
65. MR MURRAY: Yes, my Lord.
66. MR BUNTING: One final application which I should very much have made earlier, and I anticipate that this is very much covered by the terms of your Lordship's judgment, but simply to protect my lay client's position, I formally apply for leave to appeal on the policy point and that is that the policy applied by the Parole Board in this was a lawful one, for the reasons given by your Lordship in your Lordship's judgment.
67. THE DEPUTY: Yes. You would have to satisfy me that you have real prospects of success, would you not?
68. MR BUNTING: Yes.
69. THE DEPUTY: Or a compelling reason, irrespective of real prospects of success. I refuse permission.
70. MR BUNTING: I am grateful. Thank you.
71. THE DEPUTY: May I record my thanks to both counsel for the helpful and economical way in which this argument has been presented.