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Cite as: [2022] CSOH 82, 2022 GWD 37-545, [2022] ScotCS CSOH_82, 2023 SLT 199

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OUTER HOUSE, COURT OF SESSION

[2022] CSOH 82

P502/22

OPINION OF LORD TYRE

in the Petition of

DEAN RYAN

Petitioner

for Judicial Review of a decision of the Parole Board for Scotland dated 17 March 2022

Petitioner: Crabb; Drummond Miller LLP

Respondent: Lindsay KC; Anderson Strathern

18 November 2022

Introduction

[1]

The petitioner was convicted of murder and other offences in 1994 when he was

aged 17, and sentenced to life imprisonment with a punishment part of 8 years. During the

period since the punishment part expired he has been released twice on licence. The secon d

of those releases ended on 29 August 2017 when he was recalled to custody following two

allegations of rape having been made against him. Those allegations went to trial and on

12 June 2018 he was acquitted of both charges.

[2]

On 17 March 2022 the Parole Board refused to direct the petitioner's release on

licence. The petitioner seeks judicial review of that decision.

The respondent's duty

[3]

In terms of section 2(4) of the Prisoners and Criminal Proceedings (Scotland)

Act 1993, the Scottish Ministers must, if directed to do so by the Board, release a life prisoner

whose punishment part has expired on licence. In terms of section 2(5), the Board may only

give such a direction if the Scottish Ministers have referred the prisoner's case to the Board,

and the Board is satisfied that it is no longer necessary for the protection of the public that

the prisoner should be confined.

[4]

The manner in which the statutory test ought to be applied by the Board and the

role of the court in reviewing the Board's decision was set out in Brown v Parole Board for

Scotland [2021] SLT 687, and formulated by the Lord Justice-Clerk (Lady Dorrian) in Ryan,

Wiseman and Meehan v Parole Board for Scotland [2022] CSIH 11 at paragraph 13 as follows:

"(i) The court must adopt anxious scrutiny of the decision;

(ii) It can interfere if the reasoning falls below an acceptable standard in public law;

(iii) The duty to give reasons is heightened if expert evidence is being rejected;

(iv) The longer the prisoner serves beyond the tariff `the clearer should be the Parole

Board's perception of public risk to justify the continued deprivation of liberty

involved';

(v) While a cautious approach is appropriate when public protection is in issue, as

time passes it is not only legitimate but necessary for there to be appropriate

appreciation of the impact of confinement well beyond tariff; and

(vi) The decision maker should ensure that it is apparent that this approach has been

adopted and its reasoning should provide clarity as to why confinement remains

necessary in the public interest."

The Board's decision

[5]

Applications for release are considered by a tribunal consisting of members of the

Board. The tribunal in the present case consisted of three members. The decision was by a

majority.

[6]

The tribunal began by noting the details of the index offence. The petitioner had

been convicted art and part along with his brother who was then aged 21. The deceased was

assaulted, bound by his wrists and ankles, detained in his home against his will, threatened

with violence, robbed of various items of his property, assaulted and ultimately murdered

by strangulation. Attempts were made to steal a sum of money from an auto teller by means

of the deceased's bank card and to steal his car by inserting into its ignition a key which had

been stolen from him. The deceased's body and soft furnishings within the deceased's home

were then set on fire.

[7]

During his first release on licence between 2010 and 2013, the petitioner was

convicted of various offences including theft by housebreaking for which he received a

4 month prison sentence. At the time of his most recent recall to custody, he was not living

within his approved address and had been charged with two offences of rape. The tribunal

narrated the details of these charges as follows:

"23. The first charge alleged that on 18 June 2017, Mr Ryan met the complainer

within licensed premises where she had been consuming alcohol, brought her in a

taxi to the locus, assaulted her by striking her head on a kitchen worktop, punched

her to the face and raped her whilst in the presence of another male. The complainer

stated that references had been made to her, `liking it rough'. On 6 July 2017,

Mr Ryan was detained by the police in respect of the matter, questioned and released

pending further enquiries.

24. The second charge alleged that on 4 or 5 August 2017, Mr Ryan met the second

complainer, previously unknown to him, in the street outside the locus. She had

earlier consumed controlled drugs. She spoke of Mr Ryan smelling of alcohol. They

engaged in conversation. She stated they discussed controlled drugs and that

Mr Ryan said to her that he had heroin within the locus, before inviting her in.

Within the locus she stated that Mr Ryan had consumed wine and that they both

smoked a quantity of heroin. The complainer stated that she started to feel drowsy

and awoke to find Mr Ryan raping her."

The tribunal noted that the petitioner was found not guilty of one of the rapes and that the

other charge was found not proven.

[8]

As regards the petitioner's recent conduct and progress in custody, the tribunal

recorded that the petitioner was managed at a low supervision category and posed no

concerns for prison staff in terms of his management. He had no formal outstanding

intervention needs. He had been approved for progression to the open estate. However he

had been removed from the "progression list" on 24 November 2021, having accrued two

misconduct reports. One report related to a failed drug test; the sample tested positive for

Pregabalin (a prescription drug used inter alia for pain relief). The second report related to

the petitioner being found in possession of a bottle of liquid which appeared to be urine,

intended to be used to circumvent Scottish Prison Service drug testing procedures. The

bottle of liquid had been produced during a body search prior to the drug test being carried

out. The petitioner had provided a further negative drug test on 14 March 2022 and had

therefore become eligible to be returned to the "progression list". In the even t of the Board

not directing Mr Ryan's release the SPS management plan was for Mr Ryan to incur no

further misconduct reports, refrain from any further substance misuse and apply again to

progress to the open estate. If approved for progression, he could be at the open estate b y

the end of June 2022.

[9]

The tribunal heard evidence from a prison social worker (Mr McKenna) and a

community social worker (Ms George). Neither recommended the petitioner's release, on

the ground that his risks were not considered to be manageable in th e community at that

time.

[10]

Mr McKenna stated that because of the recent failed drugs test the petitioner was

now just within the "very high" risk bracket in the LSCMI risk assessment. No risk of

serious harm assessment had been undertaken because the petitioner did not meet the

criteria for such an assessment, having only one conviction for violence. That did not mean

that he could not cause serious harm. Until such time as he had been tested successfully

within conditions of lesser security than prison, there was no evidence of his manageability

within the community. His two previous recalls to custody had arisen out of non-

compliance with licence conditions. Mr McKenna had been unable to discuss the rape

charges with him, and was concerned that "...there is a whole new area of risk I've not been

able to address" with him. It concerned Mr McKenna that the petitioner found himself

being charged with such offending which suggested at the very least that he had been

involved in poor decision making and in putting himself in potentially high risk situations,

despite having completed the Constructs programme after his first recall. The attempt to

circumvent prison drug testing procedures compounded Mr McKenna's concerns because

openness and honesty was a crucial element of management in the community. It was

necessary for the petitioner to progress through the open estate prior to release in order to

establish a better relationship with Ms George as his supervising officer in the community.

[11]

Ms George also considered that it was essential for the petitioner to be tested by

community access from the open estate before release on licence. This had been emphasised

by his recent failed drug test and attempt to circumvent drug testing procedures because

these events demonstrated that there were continuing concerns about his ability and

motivation to be open and honest with those tasked to manage him when at liberty. In one

passage the tribunal recorded her evidence as follows:

"89. Ms George confirmed her view that simply because Mr Ryan had not been

involved in violence whilst in custody or convicted of further violent offending in the

community, did not mean that that she could support his release at this time or that

he could be considered as not posing a risk of serious harm.

90. She said, `he has the propensity to use serious violence. We need to take that on

board when assessing him'.

91. Ms George confirmed that Mr Ryan had been recalled charged with very serious

and violent sexual offending. Whether or not he had been convicted of that, she

could not simply ignore the circumstances of these matters, she said, when

considering her assessment of the risks posed by Mr Ryan.

92. She said it was evident that Mr Ryan `has the propensity to use serious violence

causing serious harm'.

93. She confirmed her view that he continues to pose a risk of causing serious harm."

Ms George agreed with Mr McKenna that the petitioner did not meet the criteria for a

formal risk of serious harm assessment to be undertaken. She was not trained to undertake

such an assessment but her professional opinion was that the petitioner had demonstrated

that he was capable of causing serious harm and that he continued to pose a risk of serious

harm.

[12]

The tribunal also heard evidence from the petitioner. He explained that he had taken

Pregabalin because he had been seeing the doctor for back pain. That particular day his

back was sore and he decided to take the painkiller rather than wait for an appointment.

The bottle had contained water, not urine. He realised that he ought rather to have told the

testers that he had taken Pregabalin, but he stood by his decision to take it. In the

community he could simply go to A&E or buy a painkiller; there would be no need to seek

out an illicit drug. He was on a stable prescription of methadone and had been managing

well on it for over two years. He had "self-medicated" for back pain on four or five

occasions when the prison doctor had failed to prescribe adequate analgesia. During his

most recent release on licence he had become complacent with his licence conditions and

recognised that he could make poor decisions. He did not have a drug problem outside

prison. He acknowledged that he had to proactively manage who he was in contact with in

the community.

[13]

Having considered the evidence and submissions, the majority of the tribunal was in

no doubt that his confinement remained necessary for the protection of the public. The

current level of risk posed by the petitioner to the public was sufficiently unacceptable to

justify his continued deprivation of liberty beyond the expiry of the punishment part. In

reaching this decision, the tribunal took into account the circumstances of the index offence

and any offending history, the petitioner's assessed very high level of risk and needs, his

conduct since sentence and intentions if released, all relevant information in the dossier, and

the evidence at the hearing.

[14]

In relation to the rape allegations, the tribunal stated:

"164. Although Mr Ryan was not convicted of either offence, it is of significant

concern to the Board that he found himself in such circumstances. What is of even

more concern to the Board is that after having been questioned by the police in

respect of the first alleged rape, he made the choice to invite another unknown

female into a property in which he was residing at that time and was present whilst

she consumed illicit substances.

165. To have put himself in such a position and behaved in such a manner

demonstrates to the Board Mr Ryan's complete inability to manage his risks. It also

demonstrates his inability to make good decisions or use consequential thinking and

a significant lack of insight by him into his risks surrounding alcohol and/or

substances."

[15]

In relation to the petitioner's use of an illicit drug and attempted concealment of that

use, the tribunal observed:

"166. To compound all of that, Mr Ryan has admitted to `making the conscious

decision' to use illicit substances in custody as a means of `self-medicating' for back

pain. This again demonstrates to the Board Mr Ryan's very poor decision making

and inability to use consequential thinking or recognise his risks surrounding

substances. It was also the view of the Board that the deliberate decision to take non-

prescription medication demonstrates that Mr Ryan displays an instrumental

disregard to rules and as such cannot be trusted to comply with licence conditions at

this stage. The Board considered that Mr Ryan's argument for taking these drugs

showed a poor regard for the consequences of his actions or a belief that he believes

that the rules of custody do not apply to him. This did not invoke confidence that he

would be amenable to licence conditions if released at this time."

[16]

The tribunal then turned to consider the evidence from the social workers and stated:

"171. Both social workers in their evidence to the hearing informed of their

professional opinion that Mr Ryan poses a risk of serious harm to the public on

release, irrespective of the fact that he does not meet the criteria for a formal RoSH

risk assessment. The Board accepted completely their rationale for this. The Board

agreed wholeheartedly that an offender can pose a risk of serious harm despite not

meeting the criteria for a formal RoSH risk assessment to be undertaken.

172. The Board accepted the evidence of both social workers to the hearing that, in

their professional opinion, Mr Ryan poses a risk of serious harm to the public on

release. The Board accepted their reasoning for forming such a professional opinion.

The Board found their reasoning to be based entirely on the facts of Mr Ryan's case

and the troubling circumstances of his two recalls."

[17]

As regards the petitioner's evidence, the tribunal observed:

"173. By contrast, the Board found the evidence of Mr Ryan to be verging on being

dismissive regarding his risks around alcohol and/or substances. His claim to have

made the `conscious decision' to use illicit substances in custody as a form of pain

relief and to have no regrets surrounding this concerns the Board immensely given

Mr Ryan's various incidents of non-compliance with supervision and licence

conditions and the circumstances of his two recalls to custody.

174. Using illicit substances is, of itself, illegal. It requires the purchase of drugs

from individuals involved in the sale and distribution of them. The majority of the

drug trade is governed by serious organised crime. By its very nature those involved

in serious organised crime present a significant and continuing risk of violence to the

public. This applies to every stage of the drug trade: from production, to drug

supply chains, to drug use. It is a risk from which the public require protection as it

can, and often does, pose a risk of serious harm and to `life and limb'.

175. The risk posed to the public by Mr Ryan's involvement in drugs in both prison

and the community cannot therefore be underestimated by the Board."

[18]

The tribunal concluded that it could not ignore the professionals' assessment of the

risk posed by the petitioner, or the circumstances of his most recent recall. It was not

satisfied that it was no longer necessary for the protection of the public from serious harm

that the petitioner should continue to be confined in custody at that time. Given that he was

likely to have reached the open estate and commenced some form of phased community

access by July or August 2022, the tribunal fixed a review period of nine months.

Argument for the petitioner

[19]

On behalf of the petitioner it was submitted that the procedure adopted by the

tribunal in reaching its decision was unfair.

Firstly, it had acted unfairly by taking into account unproven allegations which

had been rejected by a jury. That it had done so was clear from its narrative of

the allegations of rape made by the two complainers, its recording of the

evidence of the two social workers as to the significance of the allegations, and

its acceptance of their evidence in its entirety.

Secondly, it had acted unfairly by providing inadequate reasons. There was a

heightened duty to provide adequate reasons because the petitioner was so far

beyond his tariff. The tribunal's reasons were inadequate in respect of the

unproven allegations: the informed reader was left in substantial doubt as to

what the tribunal made of the allegations and the social workers' evidence.

There was doubt as to whether the tribunal had excluded the allegations of

sexual assault from its decision-making. The tribunal's reasons were also

inadequate in relation to the link apparently made by it between the petitioner's

use of an illicit painkiller and serious organised crime and the risk to "life and

limb". If the tribunal's position is that anyone who takes illicit substances in

prison has links to organised crime and is therefore a threat to life and limb, its

reasoning fell below an acceptable standard.

Thirdly, the Board had acted unfairly and unlawfully by not disclosing its policy

on drug use in custody. It had employed similar reasoning and the same

wording in Ryan, Wiseman and Meehan (above): that was indicative of application

of an unpublished policy.

Fourthly, the Board had acted unfairly by not giving clear notice of its criteria

for the assessment of risk in relation to unproven allegations. Any self-

imposed limitations on its discretion as an inquisitorial tribunal respect of use

of unproven allegations in its assessment of risk required to be published.

[20]

It was accepted that if the tribunal's decision had been based solely upon the

petitioner's poor decision making while released on licence and on his lack of respect for

conditions as demonstrated by his illicit drug use in prison (ie paragraphs 164-166 above), it

would have been difficult to challenge. But the tribunal had gone further. It had accepted

the evidence of the social workers, including Mr McKenna's description of the rape

allegations as "a whole new area of risk", and Ms George's assessment which had been

based on the seriousness of the allegations and not upon the peripheral facts surrounding

them. The tribunal had found it appropriate to narrate details of the allegations which had

not featured in previous decision minutes. It therefore appeared that the tribunal had taken

into account the allegations of which the petitioner had been acquitted. The apparent link

between the petitioner's illicit drug use in prison and organised crime and hence need for

public protection had also apparently formed part of its reasoning.

[21]

The procedure was unfair having regard to what was at stake. The petitioner was

significantly over his tariff, and his case required a meticulous approach. The issues raised

indicate that the process could have been made more fair, even if only to the extent of

making a reasonable perception of the fairness being more favourable than it otherwise

might have been (cf O'Leary v Parole Board for Scotland 2022 SLT 623, Lord Sandison at

paragraph 17). It could not be said here that any procedural defects made no difference to

the outcome.

Argument for the Board

[22]

On behalf of the Board it was submitted that the tribunal had provided adequate and

comprehensible reasons which fully explained why it had refused the petitioner's

application. In particular:

The tribunal had explained why the admitted and undisputed circumstances

involving the two rape allegations demonstrated that the petitioner was unable to

manage his risks. The Tribunal had not taken into account the unproven

allegations; rather, it had taken into account the circumstances relating to the

petitioner's interaction with both complainers. Those circumstances

demonstrated his inability to make good decisions or use consequential thinking

and a significant lack of insight by him into his risks surrounding alcohol and/or

substances, and were relevant and material considerations to which the tribunal

could lawfully have regard when applying the statutory test in section 2(5)(b) of

the 1993 Act.

The petitioner's use of illicit substances had been regarded by the tribunal as

demonstrative of his very poor decision making and inability to use

consequential thinking or to recognise his risks surrounding substances. His

decision to take non-prescription medication was regarded as demonstrating an

instrumental disregard for rules, so that he could not be trusted to comply with

licence conditions at this stage. It was a relevant and material consideration that

the tribunal could lawfully take into account when applying the statutory test.

The Board did not have a policy on unproven allegations. There was no

obligation on the Board to have such a policy. In R (Pearce) v Parole Board [2022] 1

WLR 2216, at paragraph 8, the Court of Appeal held that the (English) Parole

Board was entitled to, but was not under a duty to, issue guidance on unproven

allegations. The same applied in Scotland. In any event the tribunal was an

independent specialist decision-maker which exercised its own expertise and

judgement when applying the statutory test. The lawfulness of its decision was

determined by having regard to its findings relating to the unproven allegations,

rather than by the presence or absence of any policy.

The Board did not have a policy on drug use in custody. Everything just said

about the absence of a policy in relation to unproven allegations, and the

determination of the lawfulness of the tribunal's decision, applied equally to its

findings in relation to the petitioner's use of illicit drugs while in custody.

[23]

As regards its acceptance of the social workers' evidence, the tribunal had focused

upon what was said about the admitted surrounding circumstances rather than on the

allegations. Its reasoning was not infected by any error committed by either of the social

workers in placing weight on the allegations themselves. The sexual connection to the

petitioner's poor decision-making had been correctly assessed as a risk. In any event it was

reading too much into Ms George's evidence to suggest that she had disregarded the verdict

of acquittal. Her view that the petitioner continued to pose a risk of serious harm should not

be read as based upon the sexual allegations; it was a reference back to the index offence.

[24]

So far as concerned the tribunal's observations about serious organised crime, this

was not indicative of the existence of any policy. It was to be noted that the same person

had chaired the previous tribunal when similar observations had been made. The context of

the reference to organised crime was the petitioner's lack of insight into the significance of

his illicit drug use which cast doubt on his ability to comply with licence conditions after

release.

Decision

[25]

At the outset of the hearing I inquired whether the issues had become academic,

standing the fact that the review period fixed by the tribunal had almost passed. I was

advised that since the tribunal gave its decision in March 2022 the petitioner has undergone

testing in the open estate and that a review hearing has been fixed for 19 December 2022.

Parties nevertheless wished the hearing to proceed; counsel for the petitioners considered

that the same issues arose in other cases, and senior counsel for the Board did not seek to

contend that the application had become academic. I proceeded to hear argument, but I

remain doubtful that my decision will have either any enduring consequences for the

petitioner himself or any significance beyond the present application.

[26]

It is not in dispute that the decision of a specialist tribunal of the Parole Board must

be given due deference and that the court may not substitute its own views for those of the

tribunal. Nevertheless, as the court observed in Ryan, Wiseman and Meehan (above) at

paragraph 14, the tribunal's reasons must be carefully scrutinised. Particularly anxious

scrutiny must be applied where, as here, the prisoner remains confined long after expiry of

the punishment part.

[27]

I address firstly the submission that the tribunal acted unfairly in applying an

undisclosed policy in relation to the use of unproved allegations when assessing risk. I find

nothing in the reasoning of the tribunal to suggest that it was purporting to apply a policy,

and I accept the assurance of senior counsel for the Board that no such policy exists.

[28]

I also reject the contention that the terms of the decision demonstrate the application

of a policy in relation to illicit drug use in prison. Senior counsel for the Board correctly

drew a distinction between the Board itself, upon whom the task of formulating and

publishing any policy would fall, and the members of the tribunal hearing a particular

application, whose duty is to act as an independent quasi-judicial body with no policy-

making role. The coincidence in the wording of paragraph 174 of the present decision and

the wording of a previous decision appears to indicate nothing more than a choice made by

the majority of the current tribunal to re-employ the same wording in the factual context of

the present case.

[29]

I turn therefore to address the reasoning of the tribunal in relation to, firstly, the rape

allegations and their surrounding circumstances and, secondly, the petitioner's use of illicit

drugs in prison. Counsel for the petitioner was correct, in my opinion, to concede that if the

tribunal's reasoning had not gone beyond paragraphs 164-166 set out above, it would be

hard to impugn its fairness. The weight to be attached to the undisputed circumstances that

resulted in the making of the two rape allegations, in the context of the petitioner's ability to

manage his own risk, make good decisions, and demonstrate insight into the risks posed by

alcohol and drugs, and the consequences of all of that for the protection of the public, are

matters for determination by the specialist tribunal. The same applies to the weight to be

attached to the significance of the petitioner's use of illicit drugs in prison, in the context of

his ability and willingness to comply with licence conditions and to be open and honest with

his supervising officers after release. Senior counsel for the Board insisted that the tribunal's

reasoning had gone no further. The question is whether, on a fair reading of the decision of

a whole, the court can be satisfied that that assertion is correct.

[30]

As regards the rape allegations, a difficulty arises because of the tribunal's express

and unqualified approval of both the evidence and the reasoning of the two social workers

in relation to the risk of serious harm to the public posed by the petitioner if released. There

are, to say the least, indications that both social workers placed weight not only on the

circumstances that led to the allegations being made, but also on the allegations themselves.

Mr McKenna is reported to have described the sexual charges as "a whole new area of risk".

Ms George, having referred to the petitioner having been charged with "very serious and

violent sexual offending", expressed the view that he had "the propensity to use serious

violence causing serious harm", and that he con tinued to pose a risk of causing serious

harm. I find it difficult to accept senior counsel's submission that all of this should be read

as relating to the index offence; that would, for example, afford no indication of whether the

petitioner "continued" to pose a risk of causing serious harm.

[31]

Reference was made during argument to the distinction drawn in R (Pearce) (above)

between, on the one hand, established or undisputed constituent facts associated with an

overarching allegation, which could of themselves provide indications of risk and, on the

other hand, assessment of the seriousness of the nature of an allegation with some evidential

basis, which could according to the Court of Appeal amount to embarking down the route

of "no smoke without fire". That distinction appears to me to apply with greater force

where, as here, the allegations in question have been subjected to scrutiny in criminal

proceedings and have been found not to have been proved to the requisite standard of

proof. In that situation, a careful separation must be made between the established or

undisputed facts from which legitimate inferences may be drawn and the allegations which

have been rejected as not proved.

[32]

I am unable to conclude that such a separation has been achieved h ere. I cannot read

the tribunal's treatment of the social workers' evidence and reasoning as amounting to no

more than obiter observations, as senior counsel invited me to do. The paragraphs in

question, including paragraphs 171 and 172 set out above, clearly form part of the tribunal's

reasoning leading to its conclusion that the petitioners' confinement remained necessary for

the protection of the public from serious harm. I conclude that, in respect that the tribunal

took allegations of which the petitioner was acquitted into account in reaching its decision, it

acted unfairly.

[33]

In relation to the petitioner's illicit drug use, the difficulty arises because of the

observations of the tribunal regarding the link between the drug trade and serious organised

crime. Read in isolation, each of the observations made by the tribunal in paragraph 174

above about the link between the drugs trade at every level and the risks of serious harm

posed to the public is unexceptionable. But the observations are then applied, at

paragraph 175, to justify a conclusion that the petitioner's "involvement in drugs in both

prison and the community" poses a risk to the community that "cannot... be

underestimated by the Board". The context, it will be recalled, is the petition er's use, as an

end user, of an illicit prescription drug. Although the tribunal notes elsewhere that the

petitioner is on a methadone programme it is nowhere suggested that that aspect of his drug

use causes him to pose a risk. It must be concluded, reading paragraphs 174 and 175

together, that the tribunal regarded the petitioner's use of the illicit drug while in prison as

constituting involvement in serious organised crime, and therefore of posing a risk of serious

harm to the public. In my opinion that logical progression does not stand up to scrutiny and

falls below an acceptable standard of reasoning as a part of the justification for continuing to

confine the petitioner so long after tariff expiry.

[34]

It follows that in relation to each of the two aspects of the tribunal's reasoning

challenged by the petitioner, I find that the tribunal's decision was unfair. Moreover I find

that they constituted core elements of the tribunal's reasons for refusing to direct the

petitioner's release on licence. The decision must therefore be reduced.

Disposal

[35]

I shall repel the Board's pleas in law, sustain the petitioner's second and third pleas,

reduce the decision of the tribunal dated 17 March 2022 and remit the matter for

determination by a differently constituted tribunal of the Board. Questions of expenses are

reserved.