England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		14th July 2009

Mr Justice Wyn Williams:

1. These proceedings were commenced when the claimant was a serving prisoner. In his claim as formally given in the claim form he seeks two distinct remedies. As against the first defendant the claimant seeks an order quashing a decision it made on 29 January of this year. By that decision the first defendant declined to either order or direct his release from prison subject to licence. As against the second defendant the claimant seeks an order compelling his release from prison on license.
2. The procedural history is worthy of note. The claim form was issued on 29 April 2009. An Acknowledgement of Service was filed on 27 May 2009. The acknowledgment was filed on behalf of both defendants and it indicated that both defendants intended to contest the claim. On 15 June 2009 HHJ Pearl QC, sitting as a deputy High Court judge, granted permission.
3. The next procedural step occurred on 3 July 2009. On that date the second defendant filed detailed Grounds of Defence. Those grounds as I understand it were settled by counsel, Miss Olley.
4. On 8 July 2009 a second Acknowledgment of Service was filed, this time on behalf of the first defendant alone. In that document the first defendant ticked the box which appears in the Acknowledgement of Service, indicating that he did not intend to contest the claim. The acknowledgement contained no other material information.
5. On the face of it, therefore, the first defendant was not objecting to the relief which the claimant sought against it and it is reasonable to infer from the acknowledgment that the first defendant was accepting that it acted unlawfully when it reached its decision under challenge, namely the decision of 29 January 2009.
6. The difficulty is that as the proceedings are presently constituted no useful purpose is to be served by pursuing them. I say that because the claimant was released from custody, subject to licence conditions, no doubt, on 6 July 2009. Consequently no useful purpose would be served now in quashing the decision of 29 January 2009. Similarly there would be no grounds upon which it would be proper to make a mandatory order compelling the second defendant to release the claimant from custody. To repeat: he has been released.
7. No doubt mindful of the reality surrounding these proceedings, the claimant seeks my permission to amend the claim. The terms of the amendment were reduced to writing at my invitation and handed to me this morning. The proposed amendment reads as follows :
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"The claimant seeks permission to amend his claim form to make a claim for damages for the tort of false imprisonment and breach of Article 5 of the European Convention on Human Rights against the second defendant for his failure to release the claimant from custody on 27 October 2008 and to add a claim for damages for a breach of his rights under Article 5 of the Convention against both defendants on account of the failure to release the claimant from custody following the Parole Board hearing on 29 January 2009."

8. The possibility of an amended claim being pursued was first mooted in correspondence on 10 July 2009. On that date the claimant's solicitors wrote in the following terms to the solicitors for the first defendant :
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"We write to acknowledge with thanks receipt of your Acknowledgement of Service…

On the basis that the judicial review was conceded and it is accepted that the second decision is therefore unlawful could you indicate whether or not you would agree to our amending of the claim in order to incorporate a claim for damages for false imprisonment and for breach of Article 5 of the European Convention on Human Rights. If you cannot agree to this amendment please would you explain what prejudice if indeed any you would suffer from such an amendment.

We would be very grateful if you could respond to us by 3.00pm this afternoon or in any event by 5.00pm this afternoon, bearing in mind of course that this matter is listed for a full hearing on Tuesday of next week, the 14^th July."

A letter in identical or at least very similar terms was sent to the solicitor for the second defendant.

9. The first defendant's solicitor's response is dated 13 July. A copy was faxed to the court at about 3pm on that date. It reads as follows:

"Thank you for your letter dated 10 July.

It in no way follows from the Acknowledgement of Service filed on behalf of the Parole Board that my client accepts that it falsely imprisoned your client, or that it breached your client's Article 5 ECHR rights. As to the former, the Parole Board was not the body which detained your client, and thus it manifestly cannot be liable for the tort of false imprisonment. As to the latter, whilst the Board accepts that it should, upon the Secretary of State's second referral, have arrived at the same decision as to risk/release (i.e. in January 2009) as it had in October 2008, we do not understand how it is alleged that your client's Article 5(1) or Article 5(4) rights were violated by the Board as a result. Thus, we do not accept that your client has any entitlement to damages.

Further, no draft of any amended pleading has ever been sent to the Board properly setting out the basis of a damages claim against the Board. There is no reason why, if your client was to advance a claim for damages, it should not have been properly pleaded at the outset of this case. It is now far too late to do so.

In all the circumstances my client does not consent to your client amending his claim."

The second defendant's response was somewhat earlier in time, but in similar terms resisting the proposed amendment.

10. Before dealing expressly with the application to amend it seems to me to be necessary to set out the relevant factual history.
11. Some time in 2001 the claimant was convicted of three serious offences of violence, each contrary to Section 18 of the Offences against the Persons Act 1861. He was sentenced under the then sentencing provisions to a custodial term of seven years' imprisonment, and an extended licence period was imposed which required the claimant to be on licence for a period of five years. On 9 November 2004 the claimant was released from custody subject to licence conditions.
12. In the year 2007 the claimant was involved in another violent incident. He was charged with offences of violence arising out of that incident. However, before he could be tried the second defendant made an order revoking his licence and recalling the claimant to prison to serve the unexpired part of the sentence which had been imposed upon him in 2001. As I understand it, the claimant was returned to custody on 31 August 2007.
13. Some time thereafter the claimant was convicted of an offence of affray arising out of the incident at the public house. He was sentenced in respect of that offence on 7 January 2008. He was made the subject of an extended sentence under the provisions of the Criminal Justice Act 2003. The sentence imposed upon him had a custodial element of 18 months and an extended licence period also of 18 months. As I understand it, he became eligible for release from the custodial element of that sentence after serving half of the custodial term, which meant that he was eligible for release either on 6 or 7 October 2009.
14. Some time after the claimant's recall to prison on 31 August 2007 solicitors acting on his behalf made representations against the recall. That provoked a letter from the second defendant. It is dated 4 August  2008, and the relevant part reads as follows:

"I am contacting you with reference to your letter in which you made representations on behalf of your above named client against the Secretary of State's decision to revoke his license and to recall him to prison.

The Parole Board has reviewed the case and considered [the claimant's] representations against recall, confirmed the recall decision and made a provisional decision to hold a further review on 06/10/08. The Parole Board's reasons are attached.

If Mr Nolan wishes to submit any written representations, this must be received at least 10 working days before the date of the Further Review which is 06/10/08.

If your client does not want to accept this provisional decision, he has the right to request an oral hearing with legal representation."

15. The reasons attached, as referred to in that letter, also need to be considered in full. I quote:
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"Mr Nolan's case was considered by a panel of the Parole Board on 8 April 2008, at which time a further review date was set for additional information to be provided. His case is now before a fresh panel for consideration. Since his recall, Mr Nolan has not had any adjudications recorded against him and he is on enhanced regime on a drug free wing. He is currently in education in the mornings. He has just completed the PASRO course and has given four negative drug tests. He is assessed as posing a medium risk of reoffending and of harm to the public. Upon release Mr Nolan will reside with his partner and their child and he will be referred to SIFA to address his alcohol misuse. He will be required to attend Skills for Life and will be referred to ETEA. He will be subject to curfew from 7pm to 7am. Mr Nolan has a PED of 6 October 2008 on his second sentence. His legal representatives recommend that his case is reviewed in its entirety around this date when up-to-date reports will be provided by all professionals involved."

16. The panel therefore set a further review date for 6 October 2008 for the following to be provided. (1) Whether the address with his partner had been addressed as suitable. (2) Updated risk management plan. (3) Updated custodial report.
17. The next thing that happened was that a panel of the first defendant did consider the claimant's case. That consideration took place on 20 October 2008. In the bundle in court there are a total of five pages of documentation which deal with what occurred at that panel. One of the pages in the bundle is headed Parole Board Recommendation CGA 2003. The claimant's name is then given. The date is given. There is a box entitled "Appropriateness of Recall". One of the potential boxes to be ticked under that heading "Is Recall Appropriate?" and a cross is placed in the box indicating that recall was considered appropriate. Then there is a separate box headed Parole Board Decision. And one of the possibilities there permits of a release date being fixed and in that section of the box the following is written "Agree to release at..." and then the specified date is 27 October 2008.
18. It is clear therefore that a recommendation was being made by the Parole Board that the claimant should be released on 27 October 2008. I have used the word "recommendation". It may be that more accurately I should have said "direction", but for these purposes it matters not. What is crucial is whether or not in this decision the first defendant was considering, first, whether the claimant should be released from custody following his recall to prison in August 2007 and, secondly, whether he should be released from the extended sentence which was passed upon him on 7 January 2008.
19. The document to which I have referred might be considered to be ambiguous in its terms. I say that for these reasons: firstly, it contains a box which requires the Parole Board to consider the appropriateness of recall. That might suggest that the Parole Board was considering whether or not release should follow after recall. On the other hand it also contains the heading CGA 2003. The extended sentence passed on the claimant on 7 January 2008 was indeed a sentence passed pursuant to the Criminal Justice Act 2003. However, the sentence for which the claimant was recalled to prison was not such a sentence, although it may be, and I have not had argument about this, that his recall was pursuant to the Criminal Justice Act 2003. Be that as it may, there is, I can see, some possibility of ambiguity. What is clear to me is that the reasons which were advanced by the Parole Board for either directing or recommending release simply do not make it clear whether the Parole Board was directing or recommending release in respect of the custodial recall or in respect of the second sentence.
20. Not surprisingly, therefore, clarification was sought. In respect of what occurred, I can only act upon the written statement which has been served on behalf of the second defendant. A short witness statement has been sworn by Miss Kim Fitzgerald, who is employed in the public protection casework section of the second defendant. She says, in paragraph 3 of her statement, that the first defendant's recommendation of 20 October 2008 was received, I assume by the second defendant, on 21 October 2008. Upon receipt of this decision HMP Ashwell requested on 24 October that the matter be referred back to the Board to consider the claimant's parole eligibility in respect of the new sentence, as the decision to release had been following the recall. I infer that Ashwell is the prison at which the claimant was being held.
21. Miss Fitzgerald goes on that, as a consequence of that request by the prison, the matter was referred to the Parole Board for further consideration. That took place on 28 October 2008 and following what she describes as "discussions" and without any further detail about their content, it was decided that the Parole Board decision of 20 October related only to release from recall, but that the issue of his release from the second sentence that passed on 7 January should be considered at a further parole hearing.
22. In my judgment I cannot in this case go behind what Miss Fitzgerald says. On the basis of what she says, it seems to me to be inevitable that I have to conclude that the Parole Board themselves, when clarification was sought, took the view that its decision of 20 October 2008 related only to release from prison relating to the recall which had occurred on 31 August 2007. Had the Parole Board been of the view that it had considered both release in relation to recall and release in relation to the second sentence passed it would, in my judgment, inevitably have said so in unequivocal terms when clarification had been sought.
23. For reasons which are not explained, it took the board until 29 January to reconsider or to consider the issue of release from the second sentence. Such a delay is to be regretted given that by this date the claimant had gone some months beyond the halfway point of his custodial sentence. Be that as it may, the consideration took place on 29 January and on that occasion the Parole Board declined to recommend or direct release. As is apparent from remarks made earlier in this judgment, the Parole Board now accept that this second decision was unlawful and would, had there been any purpose in so doing, have been liable to be quashed.
24. It is in the light of this rather convoluted history that I have to consider whether I should permit the amendment sought. Both the first and second defendant make the submission that the proposed amendment comes very late in the day. That is true. I cannot for myself understand why the claim for damages, if such a claim was to be made, was not part of the claimant's claim from the outset in this case. Nonetheless, despite the lateness of the application, I would not refuse the application on that ground. If it is reasonably arguable that the second defendant unlawfully detained the claimant as from 27 October 2008 and if it is arguable that both defendants have breached the claimant's Article 5 rights since 29 January 2009, I would regard it as appropriate to grant the amendment since, if the claimant was successful following a contested hearing on his amended claim, he would then be afforded an effective remedy. So the issue becomes: is this proposed amendment one that has more than a fanciful chance of success in any subsequent hearing? If it does, it seems to me I should permit the amendment. If it does not, no useful purpose would be served in granting it.
25. As against the second defendant the starting point seems to me to be section 247 of the Criminal Justice Act 2003. Subsection 1 reads:

"This section applies to a prisoner who is serving an extended sentence imposed under section 227 or 228."

26. Subsection 2 provides:

"As soon as --

(a) a prisoner to whom this section applies has served one-half of the appropriate custodial term, and

(b) the Parole Board has directed his release under this section,

it is the duty of the Secretary of State to release him on licence."

27. It is clear that section 247(1) applied to the claimant since he was serving an extended sentence imposed on 7 January 2008, either under section 227 or section 228 of the 2003 Act. Subparagraph (a) of subsection 2 also applies to the claimant, since at the material time he had served one half of the appropriate custodial term. So the issue arises: is it reasonably arguable that the Parole Board had directed his release under section 247 in accordance with subsection 2 subparagraph (b)?
28. For reasons which I have given already, but which I will spell out in my judgment the answer is no. True it is that the claimant's solicitor made the sensible suggestion to the Parole Board prior to August 2008 that it should convene a hearing at which it should consider release, both from the recall to custody and from the sentence subsequently imposed. In my judgment, however, there is virtually no evidence to support the fact that it did and there is very powerful evidence to suggest that it did not.
29. To repeat: there are passages in the reasons for the convening of the October meeting which suggests that it was intended that the meeting should consider both aspects of the claimant's case. That I consider to be reasonably arguable, but when one looks at the documentation which exists as to what actually occurred on 20 October 2008 and when one further takes account of the immediate history following, it seems to me to be clear that the Parole Board did not consider on 20 October 2008 whether or not the claimant should be released from his subsequent sentence.
30. In reaching that conclusion, I have borne in mind that the panel of the Parole Board should be expected to be familiar with the Prison Service Order 6000 and in particular paragraph 8.4.3 of that order. That paragraph reads:

"Unlike other determinate sentence prisoners the CJA 2003 stipulates that extended sentence prisoners must be reviewed by the Parole Board at the half-way point of the custodial element of their sentence in order to determine their suitability for release. If the Parole Board directs their release at this stage they will be released on licence and subject to supervision until their SED."

31. It seems to me that, as I have said, the Parole Board would normally have that provision at the forefront of its mind and that it was to be expected in this case that it would conduct a review which encompassed the issue of whether or not the claimant should be released from his second sentence. Notwithstanding this provision, it seems to me that the evidence clearly demonstrates that, for whatever reason, the Parole Board did not decide that issue at its panel on 20 October 2008.
32. If as I have concluded, there is no realistic prospect that a court would conclude that the Parole Board considered the second sentence on 20 October 2008, the claim that the claimant is entitled to damages as from that date as against the second defendant has no realistic prospect of succeeding. That was frankly conceded by Mr Beckley during the course of his oral submissions.
33. That leaves the issue of whether I should permit an amendment to encompass a potential claim for damages following the decision of the Parole Board on 29 January 2009. The plain fact is that the claimant has never spelled out the basis upon which such a claim can reasonably be argued. Following the oral submissions I retired for a short period of time to consider this judgment, and upon my return Mr Beckley was manfully attempting to resurrect this issue in order to persuade me to permit this amendment by reference to a case which he did not have in court but about which he had been speaking to a colleague in the short period of time in which I was considering this judgment. With respect, that is not how litigation of this kind should be conducted. I have already said that I have not been provided with an explanation as to why a claim for damages was not made from the outset in this case. It does not seem to me that I should contemplate some kind of open ended amendment to claim damages when the basis for so doing is not properly formulated and the legal basis for such a claim appears to be on very shaky foundations. Accordingly, I do not think it appropriate to afford to Mr Beckley's client the opportunity to make an open ended amendment to claim damages for the period between 29 January and his release date when, to repeat, the basis of such a claim is in truth not formulated either in detail or even at all in the papers before me.
34. There is also an alleged claim for false imprisonment. If that lies at all it can lie only against the second defendant, since obviously the first defendant was not the person who imprisoned the claimant. I have very grave doubts about whether it adds anything to the Article 5 claim in this case, and I have given my reasons for refusing an amendment in relation to that aspect of the claim. However, it also faces the formidable difficulty that it is a private law claim in tort, and at least at first blush it seems difficult to see how an amendment can be permitted to include a private law claim alleging tortuous conduct in proceedings which seek to establish public law wrongs. In any event, as I have said, in the particular circumstances of this case it seems to me to be very doubtful whether the private law claim adds anything to a claim under Article 5.
35. For all those reasons I have reached the conclusion that it is not in the interests of justice and is not in accord with the overriding objective in the CPR to grant this proposed amendment. If I had doubt about that, I would also rely upon the following factor in resolving against the grant of permission to amend. In certain circumstances defendants can be protected against the consequences of amendments which fail by appropriate orders for costs. That is not the case here. The claimant is assisted by lawyers because he is publicly funded. As is obvious, the first and second defendants are public authorities. Consequently the whole of this litigation is being funded from the public purse. In circumstances where as it seems to me this claim has a very poor prospect of success even in its amended form, it would be wrong in my judgment to permit an amendment which had the consequence of incurring substantial public expense and when the prospect of the claimant succeeding, as I have said, is comparatively remote.
36. Accordingly, as I have said, I reject this application to amend the claim. As Mr Beckley frankly acknowledged, that means in effect that I have adjudicated upon the merits of the claim as it is presented. I say that of course because, firstly, the first defendant has conceded that its decision of 29 January 2009 was unlawful and the second defendant cannot be liable as the claim currently stands, and so although it is not appropriate to grant relief since the claimant has been released, the result is that the claimant has succeeded in his claim as against the first defendant as it was originally and as it is currently formulated, although he has failed in his claim as against the second defendant.

MISS OLLEY: My Lord, I am grateful. I don't have any application for costs but (inaudible) my costs. I do actually I'm afraid have (inaudible) costs for those incurred after 7 July inclusive because we say that the way that the case was conducted since then merits such an order. Obviously I know that the claimant is publicly funded so it won't have any practical effect, but we say that the hearing today (inaudible).

MR JUSTICE WYN WILLIAMS: Well, was any warning shot, so to speak, sent to the claimant following 7 July or at any time between then and now saying there is really no purpose in all this, if you carry on you are at risk for costs?

MISS OLLEY: (Inaudible) my Lord, that I asked the point in the way (inaudible).

MR JUSTICE WYN WILLIAMS: Alright

MISS OLLEY: I've limited the application.

MR JUSTICE WYN WILLIAMS: Yes I appreciate that. Well, in relation to that application I am clearly of the view that the appropriate order in this case as between the claimant and the second defendant is that there should be no order as to costs. So what about as between the claimant and the first defendant?

MR BECKLEY: My Lord, as you said, the first defendant, having filed an acknowledgement of service on 27 May when they were contesting the whole of the claim and then leaving it until I think it's 8 July 2009 when they served their second acknowledgement of service conceding the claim, in my submission the first defendant should be responsible for the claimant's costs to that point, on the 8 July.

MR JUSTICE WYN WILLIAMS: Very well, then I make -- I accede to that application, that seems to me to be appropriate. So as between the claimant and the first defendant, I make an order that the first defendant should pay the claimant's costs to be taxed on the standard basis if not agreed in respect of this litigation from … Let me start again so that I formulate it properly. The first defendant should pay the costs of and incidental to this litigation as between the claimant and the first defendant up to and including the date of his filing and serving the second acknowledgement of service.

MR BECKLEY: And could I ask for a detailed assessment …

MR JUSTICE WYN WILLIAMS: Yes. And I am never quite sure of the appropriate wording for that but I am sure my court associate does, but the old fashioned way saying it is that there should be a legal aid taxation direction in favour of the claimant's lawyers. Yes, right, thank you all very much.