CO/4129/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 23 June 2009
 
B e f o r e: 

MR JUSTICE COLLINS

Between: 
THE QUEEN ON THE APPLICATION OF BETTERIDGE 
Claimant

v 

THE PAROLE BOARD 
Defendant 
 
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MR H SOUTHEY appeared on behalf of the Claimant 
MR S GRODIZINSKI (instructed by Treasury Solicitors) appeared on behalf of the Parole Board
MR S KOVATS (instructed by Treasury Solicitors) appeared on behalf of the Secretary of State 
 
J U D G M E N T 
(As Approved by the Court) 
 
Crown copyright©

1.	MR JUSTICE COLLINS:  This claim comes before me following the submission that there should be a rolled up hearing.  It was accepted by counsel on behalf of both the defendants that it would be appropriate to grant permission and treat this as the hearing of the claim.  That I do, and I direct that the requirements of the rules be set aside for the purposes of hearing this claim.  
2.	Not for this case, but for future consideration, I merely raise the point in rolled up hearings as to whether the court ought not to make a requirement of the grant of permission that the court fees that otherwise would be payable are then paid, because otherwise the court, on a rolled up hearing, does itself out of the fees that would otherwise be payable.  I am sure those representing the Ministry of Justice will be quite pleased to know that that is being considered.  However, that is not strictly material for the purposes of this case.  
3.	The claimant is a serving prisoner.  He was convicted of what, on any view, appears to have been a singularly unpleasant rape of a 14‑year old girl.  He was sentenced originally to life imprisonment with a tariff of 5 years.  He appealed against that sentence and the Court of Appeal reduced it to an IPP with a tariff of three and a half years.  That tariff expired on 18 December of last year.  
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 post‑tariff 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 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.  
5.	Unfortunately, on the facts of this case, for reasons which are not made clear and which are perhaps not material, the dossier was not lodged until 2 months before the tariff came to an end.  That meant that it joined the queue of those cases which were in the Parole Board, and in which hearings had to be held, at a later stage than it otherwise would have done.  This meant that the hearing was delayed further than otherwise it need have been.  
6.	There is a power in the Secretary of State, provided by section 239(2) of the 2003 Act, to enable him to ask the advice of the Parole Board in relatively general terms.  Normally, as I understand it, the Secretary of State will use that power to ask advice as to whether the prisoner in question should be placed in open conditions or downgraded, depending what category he is in, but it can be used to ask the Parole Board to say whether, on the material that is before it, it can say that the prisoner will be likely to be regarded as suitable for release when he completes his tariff.  
7.	In this case there was a reference to the Board asking its advice as to whether the claimant should be downgraded, he being in category C, to enable him to go into open conditions.  The importance of that is that normally, but not invariably, it is necessary for lifers to show, before being granted release, that they are able to be in open conditions, show that they can be trusted to behave themselves properly so that there will be no risk, no danger to the public were they to be released.  As I say, that is not invariable, but it is regarded as desirable in many cases.
8.	On 15 September 2008 the Parole Board gave its advice.  It noted that the offender's supervisor had taken the view that the claimant had shown in prison that he had learned sufficiently to mean that it was appropriate that he could be put to open conditions.  However, the panel did not agree with the views, not only of the offender's supervisor, but also of other reporters, that it would be appropriate to do that.  What they said, so far as material, was as follows: 
"9)  The panel, which included a psychologist and a psychiatrist among their number, noted the recommendations for open conditions made by report writers, but they also noted the identification of remaining areas of treatment need specified within both the July/August 2007 PIT and the June 2008 SARN.  They feared that there had been an underestimate of risk within the RM‑2000 and an insufficient attention to the sadistic elements of the offences in other assessments.  They would therefore counsel against the formulaic approach in this case, which appears at least partly to be responsible for the conclusion that once RSOTP has been completed no further work is required and would recommend that further individual assessment should be undertaken, which takes account of their specified comments.  
"10)  In reaching their conclusion the panel also noted from your answers (while making due allowance for oral hearing conditions and obvious intellectual limitations) that you appear to have no more than a superficial understanding of the reasons why you committed the index offences or of the risk management strategies, which will be necessary on release to manage the sexual attitudes and responses which you still but partially acknowledge. 
"11)  Thus while the panel acknowledge the support of report writers for a move to open conditions, the panel were not prepared to accept that those conclusions were soundly based.  They therefore make no recommendation to the Secretary of State on the occasions of this review; that is because, balancing your interests in sentence progression against the interests of public safety, they were not satisfied that sufficient evidence exists that your risk of sexual and/or violent offending has yet reduced to a level such that that risk can be safely managed out of closed conditions".
It follows inevitably from that, that the panel, if asked, would not conceivably have recommended that the claimant was suitable for release.
9.	The formal referral under section 28 came on 13 October 2008, and the solicitors on behalf of the claimant were concerned at that early stage that there would be unacceptable delay in dealing with the matter.  The pre‑tariff advice dossier was, as the Parole Board indicated, to be assessed under the system that they had, which is described as intensive case management.  That is a system that has come into being in order to try to improve the quality of information and minimise the risk of referrals, both pre‑hearing and on the day of the hearing.  That was introduced in January 2008.  Once the dossier is received it is put before the ICN member and the prisoner is then informed that he has 4 weeks to make representations.  Once those have been received then the matter is considered, the decision is made as to whether further information is needed or whether the matter can then be put in the queue, if I may put it that way, for an oral hearing.
10.	Prior to 1 April of this year, when the Parole Board Amendment Rules 2009 came into force, the ICN member had no power to make binding directions, and all indeterminate prisoners had a full entitlement to an oral hearing.  That has been changed and there is now power to refuse an oral hearing.  The ICN member is enabled to send the case to an oral hearing with all necessary directions which will have to be complied with, because they become binding so far as the Parole Board is concerned.  
11.	The new rules also enable there to be a more satisfactory deployment of membership, inasmuch as single members can deal with matters that before could only have been dealt with by a panel on an oral hearing.  There is no need, in certain circumstances, for an oral hearing, whereas before that was needed, and some matters can be dealt with without a judicial member being on the panel.  It is not, I think, necessary for me to go into the precise details of these changes: suffice it to say they have been brought in in recognition of the problem that has been created, partly, perhaps largely, because of the introduction of IPPs and the pressure that put upon the Parole Board, although it is right to say that even without IPPs the work load of the Parole Board has risen, the pressure has become greater upon it in recent years.  
12.	I have had before me a number of figures produced and statistics.  Again, all I think I need say is that they do not, unfortunately, show that, despite the efforts that are being made, there has yet been a reduction of the backlog that has grown in the hearing of cases which the Parole Board is required to deal with.  But it is early days yet, and no doubt the new system has not had time to produce the necessary effects.  
13.	It is not only the new system within the Board that may help.  The 2008 Act has reduced the liability for the imposition of IPPs in cases where the tariff was very low.  That is to say that IPPs are now limited to more serious cases, and that also should have the effect of reducing the work load upon the Board.  
14.	In any event, on 20 February the view was taken that the matter could be put for a hearing, and the position then was that the hearings were expected to be 3 months on, thus it was put forward for a date in May.  Regrettably, due to, it appears from the evidence before me, an inability to provide panels to enable a hearing to take place, not only was the May date unable to be met but also the same applied for June, July and for August.  The earliest date that the hearing can take place in this case is September 2009.  It is not yet certain, as I understand it, that it will be able to be heard in September, but all efforts are being made to ensure that it is.  
15.	The other significant matter is that on 5 March the claimant put forward what are described as pre‑hearing submissions, and he made it clear, or it was made clear on his behalf, that he would not be seeking release, recognising no doubt, having regard to what the Parole Board had advised back in September, that his chances of persuading the Board to grant release were not likely to succeed.  
16.	Mr Southey makes the point that the delay, which is now until September, means that that is not necessarily the position, and he may well seek to persuade the Board when the hearing takes place that it is appropriate in all the circumstances, having regard to the updated information, to grant release.  Nevertheless, as I say, certainly in March, and for the purposes of the May hearing, it was recognised that release would not be sought.
17.	The first defendant, the Parole Board, has accepted that there is in the circumstances, because of the inability to have the hearing in May and the delay until September, a breach of Article 5(4) of the Convention in that the hearing has not taken place speedily as the Article requires.  The Secretary of State does not accept that there has been a breach, having regard particularly to the fact that the pre‑tarriff advisory opinion was that in effect there was no chance of release, and in those circumstances the absence of an earlier hearing has not constituted a breach of the Article.  The reason for that being, largely, by reference to some observations of Lord Hope in what is perhaps the leading case on this aspect which is R (James) v Secretary of State for Justice, Parole Board intervening [2009] 2 WLR 1149, under the title, for some reason, in the Weekly Reports as R (Walker) v Secretary of State for Justice.  Walker was not actually a party to the appeals before the House of Lords.  
18.	Those cases concerned alleged breaches of Article 5(4) and also 5(1) on the basis of the failure by the Secretary of State to ensure that they were provided, for those sentenced to IPPs with relatively short tariffs, the necessary courses which would enable them to show that they were no longer a danger and thus be able to persuade the Parole Board that they could be released at the end of their tariff.  The attack in those cases was not directly on the Parole Board in the sense of an attack on the failure to provide the Parole Board with the resources to enable hearings to take place at an earlier stage.  The reason for delays in those cases was the failure, it was said, to enable the prisoners to produce the necessary material to the Parole Board which enabled them have a meaningful review.
19.	In that case, Lord Hope made these observations at paragraph 19 of his speech: 
"I do not detect any departure from these principles in the procedure of the statutes laid down, or the role that is performed by the Parole Board.  An issue as to the lawfulness of the continued detention of an IPP prisoner is raised as soon as his tariff period has expired.  At that point, and at reasonable intervals thereafter, he becomes entitled to a review by a judicial body of its lawfulness.  Lawfulness depends on there being a causal link between the objectives of the sentencing court and the prisoner's remaining in custody.  Section 27 of the 1997 Act is applied if a person serving an IPP beats that requirement.  The function of the Parole Board is to determine whether it is no longer necessary for the protection of the public that the prisoner should be confined, and if it is of that opinion to direct his released.  The Parole Board has all the powers that it needs to carry out that assessment on the expiry of the tariff period, and thereafter at reasonable intervals.  The question is, what more is demanded of this system if the guarantee of an effective remedy, in a case where continued detention has become unlawful, that Article 5(4) provides is to be satisfied?"
20.	Then in paragraph 21: 
"It was said in R (Walker) v Secretary of State for Justice[2008] 1 WLR 1977, paragraph 67: 'If Mr Walker were to be unable to make a meaningful challenge to the lawfulness of his sentence at the time his case was heard by the Parole Board, a review of his case would be an empty exercise that would be likely to result in a breach of Article 5(4).'
"In paragraph 68 it made the same assessment of the position in the case are Mr James.  I cannot find anything in the jurisprudence of the Strasbourg Court that goes that far.  Article 5(4) requires that a system must be in place for making that assessment at reasonable intervals which meets the requirements of procedural fairness.  How that system works in practice in any given case is a matter for the Parole Board itself to determine.  It is open to it to decide how much information it needs, to conclude that for whatever reason the information that is available for the time being is inadequate, and to set its own timetable for the information that it needs to be made available.  It is entitled to expect cooperation from those who are responsible for the management of the sentence in meeting its requirements.  But a failure to meet them does not in itself mean that there will a breach of Article 5(4).  As in the case of Article 5(1)(a), it will only be inconsistent once the statutes it laid down breaks down entirely, or else the Parole Board is denied the information that it needs for such a long period that continued detention has become arbitrary, and the guarantee that Article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages." 
21.	Mr Kovats has relied upon that last sentence, submitting that there will not be a breach of Article 5(4) unless continued detention has become arbitrary, and, in this case, there can be no question but that, certainly at the time when the hearing could have taken place but for the lack of man power, the result would have been that the detention would have been continued.  The only relevant question then was whether he should be downgraded so as to be able to be in open conditions.  Therefore, it could not be said that the continued detention had become arbitrary and, therefore, there was no breach of Article 5(4).
22.	I confess that for my part I have some difficulty in following precisely what Lord Hope was intending to cover in that last sentence.  The reality is that Article 5(4) requires a speedy hearing to determine the lawfulness of the detention.  It may well be that in a given case the hearing will, and will inevitably, decide that the detention is lawful.  That does not mean that the hearing itself can be deferred beyond a period that can be properly regarded as speedy.  Equally, there is jurisprudence, and not least the decision of the House of Lords in D v Secretary of State for Northern Ireland intervening [2008] 1 WLR 1499, that delays in having a hearing which result from the Parole Board's own reasonable actions, for example requiring further information, and indeed, so far as the Parole Board is concerned, independently of any attack upon the system as a whole, in dealing with the matter in accordance with the resources that it has, provided that it does the best it can.  'Speedy' does not indicate a particular period, and I accept entirely that it is fact sensitive.  What may be required in a particular case may not be required in another, depending upon the circumstances.  But, one has to see in an individual case what has been the cause of the delay.  In this case the cause has been the lack of man power in the Parole Board which has meant that it has been unable to provide the necessary panel, which in the case of a lifer and in deciding questions of possible release because it is said that the individual is no longer dangerous, has to be a panel headed by a judicial member.  That is hardly surprising having regard to the importance of ensuring not only that those who should be released are released, but that those who should not be are not released, and one is well aware of the public concern that a number of cases have given rise to recently in that regard.  
23.	It is because the delay has been as a result of the lack of man power, which itself comes back to a failure to provide that man power, that the Parole Board has accepted that there is a breach here of Article 5(4).  I should record that that position is being addressed.  The evidence before me on behalf of the Secretary of State, and indeed it is confirmed by the evidence on behalf of the Parole Board, is that steps are now being taken to seek further judicial, and indeed other man power, to enable the Board to meet its obligations and thus produce the speedy hearings that Article 5(4) requires.  It will take time for the position to be improved: that is inevitable.  And it may well be that it could be said that steps ought perhaps to have been taken at an earlier stage, Mr Southey certainly so submits, having regard to observations that I made 2 years ago in the case of Cooper v the Parole Board, and similar observation in a case Cawley v the Parole Board, where the problems created by IPPs were considered.  Nevertheless, that is historical, and as I say there is now a recognition, and I should record that both the Secretary of State and the Parole Board are working together, aware of the problems, and steps are being taken.  It is not for me to dictate what steps should be taken.  All I can do is to observe that the system clearly, as it existed historically, gave rise to the difficulties which this case illustrates, namely that it was all too possible that hearings were not able to be carried out speedily and so in compliance with Article 5(4).  As I said, that that was indeed the position is I think recognised by both the Parole Board and the Secretary of State, hence the steps that are being actively taken to deal with the problem.
24.	Now, it seems to me, going back to Lord Hope's observation upon which Mr Kovats relies, that it is necessary to look at 5(4) on its own.  It may well be that there is no breach of 5(1), but 5(4) is an additional and free standing requirement.  There must be a speedy hearing to determine whether the detention is lawful, or whether continued detention in the case of someone already detained is lawful.  The advisory opinion before the tariff was ended can not deal with that, because clearly, so long as the tariff has not expired, the detention must be lawful and therefore the Board cannot determine that issue, and cannot indeed give the necessary relief that a decision that it was no longer lawful would require, namely, that the prisoner be released.  Thus, the advisory opinion does not dispense with the requirement in Article 5(4) that there must be a speedy hearing to determine lawfulness.  However, what it can mean, and what it does mean in the circumstances of this case, is that any breach of that does not mean that any redress in the form of damages would be obtainable by the claimant, because it is plain that if the matter had been dealt with when it should have been dealt with there would have been no chance that the Board would have ordered his release, and accordingly the detention would have been considered to be lawful.  In the context of the claimant's case, Lord Hope may well have been considering whether there was any breach which would lead to a possible claim by the individual, because he concludes the last sentence with the words:
"The guarantee that Article 5(4) provides will be violated and the prisoner will be entitled to a remedy in damages."
It seems to me, in the context, that the likelihood is that Lord Hope was focusing upon that, and his observations are to be regarded as made in that context.  
25.	That that may well be so is, I think, apparent when one goes back to the case of D and sees what Lord Brown, who was also party to James, said at paragraph 39.  What he said was this: 
"Concerned although inevitably one is to note the passage of some 8 1/2 years before a substantive decision was finally reached at an oral hearing in August 2005, upon allegations of buggery which as long ago as March 1997 would have prompted the respondent's recall to prison, not least in the context of a statutory regime allowing the prisoner to be called for reviews of his continuing detention at 2 yearly intervals, any blame there may be for delay cannot properly be laid at the Commissioner's door.  Clearly however, the Secretary of State should take this opportunity to remind himself of the need to ensure that the system as a whole functions efficiently and is effective to overcome whatever obstacles may lie in the path of speedy determinations.  Having myself been party to the decision of the European Court of Human Rights in Blake v the UK [2006] 44 EHRR 623, I cannot entirely put it from my mind.  True it is that the overall time it took to reach a final decision there was just over 9 years, but the dispute there was a civil one and the case fell to consideration under Article 6 which calls for a hearing within a reasonable time, rather than, as here, under Article 5(4) which expressly requires decisions to be made speedily.  The word 'speedily' carries its own emphasis.  These however, are exhortatory words directed at the future."
26.	It is to be noted that in D's case the declaration that was being asked for against the Commissioners (the Commissioners being the equivalent of the Parole Board in Northern Ireland) was refused because the remedy being sought was against them and not against the Secretary of State, and the issue was whether the Commissioners had acted with proper expedition and not whether the whole system required overhaul so as to speed up the process of determining whether the applicant's detention was lawful.  The House of Lords decided that, notwithstanding the long delays, the Commissioners had acted with proper expedition having regard to their resources and the issues with which they had to deal.  
27.	This case is different because the system is under attack.  The Secretary of State is a party and 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.  It is further submitted that an order should be made for, if not September, then at least the next available date, but I am not prepared, for the reasons I have already indicated, to make any mandatory order.  
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, provided of course he satisfied whatever conditions were considered to be necessary.  
29.	The question then is whether I should grant any specific declaration.  Mr Southey 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, from a number of solicitors who have experience in dealing with these cases, 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 pre‑tarriff 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.
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.  But, this has at least brought home to the court, and enabled the court to make the point, that the situation that existed was unsatisfactory, potentially contrary to law, and the court welcomes the steps that are clearly being taken now to ensure that that situation does not continue.  
32.	In those circumstances I simply make no order on the claim.
33.	What about costs?
34.	MR SOUTHEY:  Well, my Lord, can I just deal with one matter before costs?
35.	MR JUSTICE COLLINS:  Yes, of course.
36.	MR SOUTHEY:  Which is that I would ask for an expedited transcript.  As somebody who advises a number of people in these certain circumstances, to have your Lordship's remarks‑‑ 
37.	MR JUSTICE COLLINS:  ‑‑ of course.
38.	MR SOUTHEY:  My Lord, in terms of costs, in my submission there was a very real purpose to these proceedings.  I obviously take on board what your Lordship said about the first proceeding, but there was a very broad purpose. 
39.	MR JUSTICE COLLINS:  No, I think I have made that clear.  I have decided, rightly or wrongly, that effectively 5(4) provides something which has to be met on its own, and I have rejected the Secretary of State's argument against it.  At the moment if there is to be any order for costs, and I will hear Mr Kovats, I think that probably the Secretary of State should be the one who pays.
40.	MR SOUTHEY:  I was not going to argue any differently, but I was going to say that‑‑ 
41.	MR JUSTICE COLLINS:  ‑‑ I think the Parole Board can have simply no order.
42.	MR SOUTHEY:  My Lord, that was the application I was going to make.
43.	MR JUSTICE COLLINS:  I know it is the same vote. 
44.	MR SOUTHEY:  Yes.  The application I was going to make was that the primary purpose of these proceedings was to establish that there had been a breach of the claimant's rights, and although there were arguments about monetary relief, the primary purpose has been achieved.  Despite the fact the claimant may well not be released at this Parole review, it will be relevant to him, because of course he will have further Parole Board reviews.
45.	MR JUSTICE COLLINS:  Certainly.  
46.	MR SOUTHEY:  And has a real interest in ensuring his position.
47.	MR JUSTICE COLLINS:  I appreciate that now, if he is to be heard in September, he will be able to say, well it is so long now and if there are good reports he may be able to achieve release, notwithstanding that he has not been in open conditions. 
48.	MR SOUTHEY:  Absolutely.  But even if he does not achieve that, at the same time contributing towards ensuring that the system operates in a proper manner.
49.	MR JUSTICE COLLINS:  I agree. 
50.	MR SOUTHEY:  So for those reasons my Lord, I would submit that it is appropriate that the claimant gets his costs against the Secretary of State.
51.	MR JUSTICE COLLINS:  I think he is probably right is he not? 
52.	MR KOVATS:  My Lord, can I start‑‑ 
53.	MR JUSTICE COLLINS:  Since it is your vote that pays him as well.
54.	MR GRODZINSKI:  My Lord, we are very well aware of that.
55.	MR KOVATS:  My Lord, I will start off with the fall back position.  The fall back position is that we are quite happy with the idea that there is no order for costs against the Board, that we pay rather than the Board.  Having said that, we do submit that the appropriate order is no order for costs, for two reasons:  First, the claimant has succeeded only in getting one out of the four types of relief claimed, and his claim for a mandatory order, and his claim for damages, and his claim for generic deprivation were not piffling little points.  From the Secretary of State's perspective ‑‑ 
56.	MR JUSTICE COLLINS:  You had to prepare to meet those other claims.  I take your point.
57.	MR KOVATS:  Yes.  My Lord, the second reason is this: I quite accept that your Lordship has found that there was a breach of Article 5(4), but equally, if one looks at it from the perspective of the Secretary of State, there is reason to be cheerful.  In practical terms the court has said the Secretary of State has recognised that he has got to deal with this problem and is on the right track.  So, to a certain extent, we too would claim a moral victory in this case, and therefore we respectfully submit that a proper and realistic costs order is no order for costs.
58.	MR JUSTICE COLLINS:  Well, you have got the advantage too that I have indicated that I hope we will not get any more of these claims. 
59.	MR KOVATS:  Yes.
60.	MR JUSTICE COLLINS:  Or many more.  Mr Southey, I think there is some force in his suggestion that, and I am translating it now, that you should perhaps only get a portion rather than the whole.
61.	MR SOUTHEY:  My Lord, I can see some force in that.  Although I would submit that the portion should be a relatively high one, not least because of the fact that, although it is fair to say that they did present evidence, it was always our position that did not need to be assessed.  
62.	MR JUSTICE COLLINS:  That was not going to be raised.
63.	MR SOUTHEY:  In terms of the mandatory order, we revised our position in the skeleton argument as soon as we had seen the evidence. 
64.	MR JUSTICE COLLINS:  Today's hearing was essentially what was between you.  It could have been sorted out in one I suppose, if there had been a number of concessions.
65.	MR SOUTHEY:  Yes, in particular if the Secretary of State had been willing to take the position of the Parole Board the hearing might well have been very much shorter, or potentially not taken place at all.  It is slightly speculative to say that, but the central dispute in the end was between the Secretary of State and the claimant, and the claimant won that argument.
66.	MR JUSTICE COLLINS:  Yes.  I think that the claimant is entitled to some costs but not all his costs, because, as Mr Kovats points out, he has not succeeded in some of the claims that he made, and the Secretary of State had to at least prepare to deal with those.  However, it seems to me that the hearing has substantially been required because of the Secretary of State's refusal to accept that there was a breach of 5(4), whether or not that would provide any ultimate benefit to the claimant in the sense of any possible damage claim.  I have to adopt a relatively broad brush approach to this question, and what I propose to order is that the claimant has two thirds of his costs.  You have the usual order and it has to be detailed in the system? 
67.	MR SOUTHEY:  Yes.
68.	MR GRODZINSKI:  My Lord, can I raise one other matter.  It links to Mr Southey's, if I may say so, sensible request for the transcript as soon as possible.  Your Lordship may already be aware there are a large number of judicial review claims, I understand they number around 70.
69.	MR JUSTICE COLLINS:  As many as that?
70.	MR GRODZINSKI:  Whether awaiting a permission decision or whether awaiting a rolled up hearing, both here and I think in provincial centres as well.  It would be helpful, without obviously being able to give any particular direction for individual cases, if your Lordship indicated that the generally applicable approach should be to await a copy of the approved transcript in this case. 
71.	MR JUSTICE COLLINS:  Yes.  I will have a word with the office to try to ensure that they are not ‑‑ I assume they are being held back? 
72.	MR SOUTHEY:  My Lord, I certainly have two listed, one of which I can see I may have to give advice about, one of which is one where one of the issues which was identified by the judge on granting permission was the fact that, in fact, he was somebody from memory who had never had a Parole Board review and had a pretty strong case for release, as all the reports were saying.  That case, for example, may still need to be considered. 
73.	MR JUSTICE COLLINS:  Yes.  I have made it clear that there could be ‑‑ but that is the sort of case that might get in under the new guidance.
74.	MR SOUTHEY:  Well, that is the complaint, but my Lord, obviously that is a matter ‑‑ 
75.	MR JUSTICE COLLINS:  Yes, there are a number of them which have to be sorted out obviously.  There is rather an over‑keenness to make rolled up orders in these cases. 
76.	MR GRODZINSKI:  My Lord, if they are sort of plain, bog‑standard cases where they are complaining about delay but where there is no reason for them to be asking to be prioritised ‑‑ 
77.	MR JUSTICE COLLINS:  Those I think should die, frankly.  But of course I can not make a general order, one has to consider each case.  Those that have not yet gone to a judge on paper, I will indicate to the office should be held back until the transcript is available.  
78.	MR GRODZINSKI:  That is very helpful my Lord, thank you.
79.	MR JUSTICE COLLINS:  But there are, as Mr Southey indicates, I imagine others which have already been dealt with after the permission stage, and there is usually an endeavor to ask for a speedy interim order or an abridgment of time, or whatever it may be.
80.	MR GRODZINSKI:  Well, the fact that permission has been granted does not obviously halt the ‑‑
81.	MR JUSTICE COLLINS:  No, of course not.
82.	MR GRODZINSKI:  ‑‑ obligation on all parties to consider whether they have a viable claim to take it to a substantive hearing.  
83.	MR JUSTICE COLLINS:  And none of you has indicated any desire to appeal this decision.
84.	MR KOVATS:  My Lord, I was just going to say this, as I indicated a moment ago the Secretary of State has reason to draw some comfort from your Lordship's judgment.  I have not taken instructions, but in fairness to my clients could I ask your Lordship to deal with it in this way, for your Lordship to extend time for seeking permission to appeal until 7 days after the transcript is available, any such application to be made in writing.  I am not anticipating that there will be one.
85.	MR JUSTICE COLLINS:  I think that is not unreasonable, the same applies ‑‑ 
86.	MR SOUTHEY:  I was going to say, could it apply to all parties? 
87.	MR JUSTICE COLLINS:  The same applies to all of you, yes.  That is clearly perfectly reasonable.  Well, I hope sometime next week we will have the transcript.  
88.	All right.  Thank you all.