“It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”
“The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions… ; and in giving such directions the Secretary of State must have regard to – (a) the need to protect the public from serious harm from offenders, and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.”
“A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board’s emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing their attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered.”
“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court… … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
“The ‘court’ referred to in article 5(4) does not necessarily have to be a court of law of the classic kind integrated within the standard judicial machinery of the country. The term ‘court’ serves to denote ‘bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case… but also the guarantees’ – ‘appropriate to the kind of deprivation of liberty in question’ – ‘of [a] judicial procedure’, the forms of which may vary from one domain to another. In addition, as the text of the article 5(4) makes clear, the body in question must not have merely advisory functions but must have the competence to ‘decide’ the ‘lawfulness’ of the detention and to order release if the detention is unlawful.”
“It is an established principle of common law that the role of judicial decision-making bodies as defendants in judicial review proceedings is not, save in exceptional cases, to contest the proceedings. [There is then reference to R (Davies) v HM Deputy Coroner for Birmingham[2004] EWCA Civ 207 ;[2004] 1 WLR 2739 (“Davies”): see paragraph 28 below.] The role of the court is simply to provide the reviewing court with relevant information where necessary…. The judicial body may explain matters relating to its jurisdiction, practice or procedure ([Davies]). It might also provide factual information about a case. Unless the court or tribunal plays an adversarial role in proceedings, it should not be liable for costs. The Parole Board will decide on a case by case basis whether it should defend a judicial decision. As a statement of general purpose: • In any form of litigation, the Parole Board will first consider whether it wishes to concede. Where it decides not to:- • The Parole Board will not normally seek to defend a decision of a panel to refuse early release or recommend a prisoner’s transfer to open conditions. • The Parole Board will normally defend other types of judicial decision, and all administrative decisions. • The Parole Board will defend private law claims for damages.”
“The very heavy pressures on the funds available to the Legal Services Commission no longer make it possible to justify the refusal of a costs order on the basis that one public fund would simply be paying another. I do not consider, however, that it is appropriate to take into consideration the fact that the remuneration of counsel (and particularly leading counsel) on a legally aided appeal of this kind is now extremely low (by the standards of the private sector market) and that counsel and solicitors would financially benefit from a costs order in their favour. There is nothing in the Costs Rules to suggest that the financial welfare of a party’s lawyers is a legitimate consideration when a court makes an order as to costs.”
“(1) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings. (2) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event. (3) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case-law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application. (4) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (3) above, so that a successful applicant… who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs.”
“… subject to the CPR, and a successful claimant who has brought such a claim is just as much entitled to his costs as he would be if it had been a private law claim. The court’s duty to protect individuals from being wronged by the state… is every bit as vital as its duty to enable them to vindicate their private law rights. And the fact that the defendants are public law bodies should make no difference.”
“… [T]here are good reasons why M makes no mention of claims for costs against tribunals. Any consideration of the topic would have to take into account not only the stream of authority of which Davies is only the culmination but also the novelty of the idea that any tribunal should, as a matter of normal course, be liable for paying the costs of setting aside one of its orders if the party against whom proceedings are brought does not seek to defend the tribunal’s order. The proposition for which Mr Drabble [Counsel for the Appellant Claimant] contends might apply to appeals just as much as to judicial review, at any rate if the tribunal were joined as a party to the appeal. The present case is only brought by way of judicial review rather than by way of appeal to the Upper Tribunal because it is excluded [by statute]. It would be a serious step to say that in any undefended appeal or judicial review, the tribunal would be at risk as to costs and any such conclusion cannot be implied into the decision of M. If such a step is to be taken, it cannot be by a court of coordinate jurisdiction with the court which decided Davies.”
“… [T]he consequences for solicitors who do publicly funded work is a factor which must be taken into account. A court should be very slow to impose an order that each side must be liable for its own costs in a high costs case where either or both sides are publicly funded…”