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
		29 September 2016

1. MRS JUSTICE SIMLER: This is an application by the Defendant, the Secretary of State for Justice, to strike out claims for judicial review pursued on behalf of Abdiaziz Warsame, Michael Lamot and Hussain Ali Hussein, the three Claimants. The application is brought under CPR Rule 3.4(1)on the basis that the issues raised now being academic and of historic interest only,there are no reasonable grounds for bringing the claim and/or it is an abuse of the court's process.
2. The Defendant appears by Mr Simon Pritchard of counsel. The applications are resisted by the three Claimants who appear by Mr Richard Reynolds for the Second Claimant and Mr Bijan Hoshi for the First and Third Claimants, both of counsel. I have received written submissions from all counsel and heard from Mr Pritchard and Mr Reynolds today and have been assisted by their careful,focused submissions.
3. At the time of making these claims, the Claimants were all foreign national prisoners in closed conditions liable for deportation and serving indeterminate prison sentences. The First Claimant had been convicted of murder and was serving a life sentence with a minimum tariff of around 12 years imposed on 14 May 2004; the Second Claimant was convicted of murder and serving a life sentence with a minimum tariff of a little more than 11 years imposed on 22 December 2004; and the third Claimant was convicted of murder and serving a life sentence with a minimum tariff of something over nine years imposed on 11 May 2007.
4. The claims all concern decisions taken by the Defendant in early 2014 not to accept the Parole Board's recommendations to transfer them to open conditions. Those decisions are challenged as reflecting a breach of the Defendant's stated policies in existence at that time, as unlawful decisions themselves and as irrational. Moreover, there is a challenge to the legality of the Defendant as the executive refusing to follow the decision of an independent judicial body, here the Parole Board.
5. Since the claims were originally made, there have been significant material developments:

(i) on 15 June 2016 the Parole Board directed the release of the Second Claimant, who has now been released from prison, albeit he may be held under immigration detention.

(ii) the First and Third Claimants' cases have also been reconsidered and the Defendant has determined that they are both a very low risk of absconding. The First Claimant is accordingly now in open conditions and the Third Claimant has been assessed as suitable for transfer to open conditions.

(iii) Moreover, the provisions of the policies that were in place so far as relevant to questions of transfer to open conditions (PSI 40/2011 and 52/2011) have been superseded. Policy PSI 37/2014 on eligibility for open conditions and for ROTL of prisoners subject to deportation proceedings was published in August 2014 and provides, so far as relevant, the presumption is that prisoners who are liable for deportation will not be suitable for open conditions unless they are assessed as presenting a very low risk of seeking to avoid the intention to deport by absconding.

(iv) In April 2015 the Defendant amended directions to the Parole Board consistently with PSI 37/2014 as follows:

i. "Before recommending that [a foreign national indeterminate sentence prisoner who is liable to deportation] be transferred to open conditions, the Parole Board must be satisfied that the ISP presents as a very low risk of abscond."

6. The directions go on to explain that:

i. "[The] Risk may be lessened where the [prisoner] is known to be cooperative and is seeking to return to his or her home country, as will other factors such as strong family ties in this country or that the [prisoner] does not wish to jeopardise his chances of successfully appealing and remaining in this country."

7. (v) In June 2015 the Defendant published PSI 22/2015, which is a generic parole process for indeterminate and determinate sentenced prisoners. That explains, so far as relevant, that:

i. "The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are that the panel's recommendation:

either goes against the clear recommendations of report writers without providing a sufficient explanation as to why;

or is based on inaccurate information.

ii. The [Defendant] may also reject a Parole Board recommendation where he does not consider that there is a wholly persuasive case for transferring the prisoner to open conditions at this time."

8. None of those (now) current policies are challenged on this judicial review application. Indeed, it is under those new policies that the Claimants' cases have been reconsidered and have led to the change in their positions that I have just identified. In light of the changed circumstances, the Defendant contends that these claims are academic and should be struck out.
9. Before addressing the competing contentions in relation to the application, it is helpful to set out briefly the procedural history of the claims. It can be summarised as follows.
10. The claims were issued respectively on 6 June, 2 May and 27 June 2014 by each of the First, Second and Third Claimants. There was an acknowledgment of service in each claim filed and served on 31 July 2014 requesting that the claims be stayed until 21 days after the promulgation of the decision in what was described as a similar fact case, Harris v Secretary of State for Justice [2014] EWHC 3752, as it subsequently came to be reported. In response, on 9 August 2014 the Claimants requested that their claims be linked with Harris. That application was refused on 9 September 2014 and instead the claims were stayed behind Harris.
11. On 24 October 2014 Dove J handed down judgment in Harris refusing the claimant's claim for judicial review. Mr Harris sought permission to appeal to the Court of Appeal. Three grounds were raised. First, so far as Dove J's decision that the executive can reach a different conclusion in respect of the risk of absconding from the independent judicial body, the Parole Board, it was said that Dove J was wrong. Secondly, to the extent that the case of Evans had been distinguished by Dove J in Harris, it was said he was wrong to do that. Thirdly, there was a challenge based on rationality.
12. The single LJ, McCombe LJ, gave permission on the papers by a decision dated 6 February 2015 stating:

i. "I consider that the grounds of appeal have a real as opposed to fanciful chance of success and raise issues of some public importance."

13. Following the first instance decision in Harris, the stays were lifted in the Claimants' claims. On 4 June 2015 there were summary grounds of defence filed by the Defendant relying principally on the decision of Dove J in Harris. Thereafter, Hayden J refused permission to proceed in respect of the judicial review application, relying on Harris. The Claimants renewed their permission applications orally but Sir Stephen Silber adjourned them pending the Court of Appeal's decision in Harris. Subsequently, Mr Harris withdrew his appeal.
14. The result is that consolidated amended grounds for judicial review were only served in early 2016. Detailed grounds of defence have not been served because the Defendant preferred instead to reconsider the Claimants' cases in the way I have described. No witness statements have been served nor has there been any disclosure. The Claimants have however, been given permission to pursue these judicial review applications on 5 May 2016 by Sir Stephen Silber who cited McCombe LJ's grant of permission to appeal in Harris, including that issues of some importance were raised.
15. The legal principles that apply to the question whether a claim is academic are not in dispute. Rather, it is their application to these facts that is in contention.
16. The law is set out in R v Secretary of State for the Home Department ex parte Salem [1991] 1 AC 450 by the House of Lords and guidance given in Rusbridger v Attorney General [2004] 1 AC 357 makes clear that it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. The discretion to hear disputes even in the area of public law must be exercised with caution. Matters which are academic between the parties should not be heard unless there is good reason in the public interest for doing so, as, for example, when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.
17. That test was encapsulated helpfully by Silber J in Zoolife [2007] EWHC 2995 at paragraph 36 in the following way:

i. "In my view, these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive."

18. He went on to explain the practical difficulties that would arise if academic disputes are allowed to be pursued, particularly in circumstances where the court's scarce resources are already stretched.
19. Finally, in Rathakrishnan v Secretary of State for the Home Department [2011] EWHC 1406 Ouseley J said at paragraph 17:

i. "The concern that there might be an issue of wide and general application is also no reason, save exceptionally, for the claim to remain on foot because if an issue is of wide and general application there will be other cases that will raise the point. There may of course be a case in which that wide and general issue is sufficiently far advanced for it to be better for the matter to proceed but it is generally unwise for a case to decide such an issue if a fresh decision might make the issue academic in that case."

20. The Claimants contend that these claims are not academic. Mr Reynolds submits that declaratory relief is sought and is meaningful; the Claimants were unlawfully held and an unlawful policy, whether published or undisclosed, was adopted or applied to them. He relies on the fact that all three policy changes predated the grant of permission and the grant was made by Sir Stephen Silber in the knowledge of that and in light of the change in policy position. There is nothing hypothetical about this challenge.
21. Cogently as those arguments are advanced, in my judgment, these claims are now academic. In the case of the Second Claimant, his release has been directed and I reject the contention that the challenge is not academic because of the declaratory relief sought. The same is true of the position of the First and Third Claimants. Declaratory relief would serve no useful purpose in circumstances where all three have in effect achieved the practical relief they sought by these challenges. Their own positions have changed. The policies in place at the time have changed. The decisions have fallen away and are historic. There is no damages claim in any of these cases. These are academic claims.
22. Notwithstanding that, even if academic the Claimants nevertheless submit that there are exceptional circumstances that justify these claims being permitted to proceed for good reason in the public interest. First, they argue that the issue raised in relation to the case of Harris is an issue of public importance as underlined by the grant of permission and the fact that McCombe LJ regarded the appeal as arguable and raising points of public importance. Moreover,they submit that the proceedings are at an advanced stage, having been on foot for more than two years. Finally, they say the mere fact that the Defendant has published further policies in the period since the decisions challenged does not render guidance from this court otiose. Their claim that the Defendant adopted an unlawful policy and practice in respect of foreign national prisoners by treating as determinative the fact that their immigration status was unclear is likely, in their view, to affect other similar cases in the future and guidance given by this court would materially affect the approach to be adopted by the Defendant in the future.
23. I do not accept those submissions. These claims challenge decisions made in 2014, all now superseded, together with the policies then in force. So far as any undisclosed policy is concerned, even if such a policy were still in existence, it is clear that these Claimants are not victims of any such undisclosed policy. Findings by this court as to the lawfulness or otherwise of rescinded policies and practices in 2014 would be of little or no public utility.
24. The suggestion that other prisoners have an interest in these claims has not been substantiated by reference to any such prisoners. If there are prisoners who have similar potential claims against the Defendant notwithstanding the policy changes that have been made, then there is nothing to stop those prisoners bringing challenges which will determine rights in their case.
25. Moreover, that, in my judgment, is the appropriate course here because contrary to Mr Reynolds' submission, I do not consider that this case has advanced significantly. The claims have not advanced much beyond the starting blocks. As I have indicated, notwithstanding the long period that this challenge has been on foot, there has been no service of detailed grounds of defence, no exchange of witness statements and no disclosure.
26. The interesting and potentially important argument identified by Mr Reynolds as to the tension between the decision of the Supreme Court in Evans and Dove J's first instance decision in Harris does not make this claim non-academic or justify its continuance. This is not the appropriate vehicle for resolution of that issue, however important an issue it is, because the Parole Board's decision in any case is fact and context specific. The Defendant's approach to a Parole Board decision will inevitably depend on the way in which the Parole Board conducts its decision making process and the way in which that decision is reached. The appropriate vehicle for resolving the tension identified is a case which is live, the issues are not academic and they can be looked at in their own factual context.
27. Finally, Mr Pritchard refers to the fact that the Claimants are in receipt of legal aid and the Defendant's costs are met by the public purse. A challenge from which the Claimants cannot obtain any real benefit and which at its highest, only may affect others, would be contrary to the overriding objective and disproportionate in these circumstances. To proceed using scarce court and public resources incurring costs that are likely to be disproportionate to any benefit that may in practice be derived is not appropriate in this particular case.
28. For all those reasons, I accede to the Defendant's application. These claims are struck out as academic.
29. MR PRITCHARD: My Lady, I am obliged. We apply for our costs of the application to be assessed, if not agreed.
30. MRS JUSTICE SIMLER: You are not asking for summary assessment now.
31. MR PRITCHARD: We are not asking for summary assessment now, no.
32. MRS JUSTICE SIMLER: Yes.
33. Can you resist that, Mr Reynolds?
34. MR REYNOLDS: No, my Lady.
35. MRS JUSTICE SIMLER: Mr Hoshi, do you want to say anything?
36. MR HOSHI: Not in respect of the costs of the application, my Lady.
37. MRS JUSTICE SIMLER: Yes, all right.
38. Well, yes, the Defendant's costs are to be paid by the Claimants to be assessed, if not agreed.
39. MR PRITCHARD: My Lady, I will draw up the order and agree it with my learned friends.
40. MRS JUSTICE SIMLER: I am grateful, Mr Pritchard.
41. Is there anything else?
42. MR HOSHI: The costs of the remainder of the proceedings. We would submit that we ought to be entitled to those costs, my Lady, because as you said, the Claimants achieved the practical outcome that they sought.
43. MRS JUSTICE SIMLER: Yes.
44. MR HOSHI: So we would seek the costs for the remainder of the proceedings with the exception of this application.
45. MRS JUSTICE SIMLER: Yes.
46. What do you say about that, Mr Pritchard?
47. MR PRITCHARD: We do object to costs. We made our decision because the original decision became so historic. There were new policies in place. We considered it to be appropriate to remake our decision.
48. It may be that in those circumstances you think the Claimants should have some of their costs, but maybe not the entirety of their costs. Maybe they would have 50 per cent of their costs and then from that offset the costs of the application.
49. But ultimately, we do object to a costs order because we did not make the decision as a result of the JR. The Claimants were not successful. We have just remade the decision under the new policies.
50. MRS JUSTICE SIMLER: Do you wish to respond Mr Hoshi, Mr Reynolds?
51. MR REYNOLDS: My Lady, if I may. The reality is that the new decisions in respect of the First and Third Claimants were made as a result of the grant of permission. It was that that prompted those new decisions. For those reasons, we would be asking for our costs.
52. MRS JUSTICE SIMLER: Anything else?
53. MR HOSHI: No, my Lady.
54. MRS JUSTICE SIMLER: Without conducting, in effect the actual judicial review, it is difficult for me to form a concluded view on the merits of the judicial review and the extent to which that judicial review application led to the Defendant's fresh decisions in each of the three Claimants' cases. Nevertheless, the fact of the matter is that permission to pursue these applications for judicial review was given and soon thereafter the Secretary of State reached fresh decisions in each case. Doing the best I can and in what is inevitably a broad brush assessment, it seems to me that the Claimants should have 50 per cent of their costs of the judicial review in those circumstances.
55. MR PRITCHARD: I am obliged, my Lady. As I say, I will draw up the order.
56. MR HOSHI: My Lady, one more matter.
57. MRS JUSTICE SIMLER: Yes.
58. MR HOSHI: It may be that formally we need to apply for permission to appeal here and I do so --
59. MRS JUSTICE SIMLER: Yes.
60. MR HOSHI: -- on the basis, with respect, that your decision was wrong.
61. MRS JUSTICE SIMLER: Yes.
62. Do you want to say anything about that, Mr Reynolds?
63. MR REYNOLDS: No, my Lady. No.
64. MRS JUSTICE SIMLER: Mr Hoshi submits that my decision is wrong and that the Claimants should be given permission by this court to pursue an appeal to the Court of Appeal. I am not persuaded by that submission.
65. For the reasons I have given in a fairly detailed judgment, I consider that the strike out is appropriate. The challenge is academic and no exceptional circumstances for its continuance have been shown. In those circumstances, there is no reasonable prospect of success of any such appeal. There is nothing to stop the Claimants, however, from seeking to persuade the Court of Appeal otherwise.
66. Thank you for your assistance and very helpful submissions from everyone.