Faulkner, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 563 (Admin)

Case No CO/9480/2005[2006] EWHC 563 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 8th February 2006
Strand
London WC2
B E F O R E:
MR JUSTICE LLOYD JONES
Between
THE QUEEN ON THE APPLICATION OFClaimantDANIEL FAULKNERClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR HUGH SOUTHEY appeared for CLAIMANTMR PAUL GREATOREX appeared for DEFENDANT
J U D G M E N TWednesday, 8th February 2006
[1]MR JUSTICE LLOYD JONES: In August 2001 at Stafford Crown Court the claimant, who was then 18 years of age, pleaded guilty to an offence of inflicting grievous bodily harm with intent. The sentencing judge, HHJ Perrett QC, observed that as a result of repeated kicking to the head of the victim, the victim had almost died. This was the claimant's second offence of grievous bodily harm. The sentencing judge imposed a sentence of life imprisonment, as he was required to do by the legislation. He imposed a tariff of two years and eight and a half months.[2]The claimant served the first part of his sentence in a young offenders' institution. At an early stage in his sentence his attitude was described as atrocious at times. More recently, his attitude and his behaviour have improved considerably. In December 2003 he was transferred to an adult prison. A marked improvement in his overall behaviour was noted and his conduct no longer gave rise to cause for concern. He was classified as a category B inmate. His tariff period expired on 18th April 2004. As a result, he was entitled to have his first Parole Board review conducted before that date.[3]On 1st December 2003 the claimant had been allocated to the therapeutic community at HMP Dovegate. As a result, he had only been in therapy for less than five months when he was entitled to his first Parole Board review. In the light of that fact, he agreed to defer his Parole Board review so that he could participate fully in therapy. Early in 2005 reports were prepared to enable the claimant's case to be reviewed by the Parole Board. These reports were generally positive and recognised the progress the claimant had made. The authors of the reports were generally supportive of the claimant's application to be transferred to open conditions. However, at that stage the one dissenting voice was that of the Lifer Manager, who recommended a progressive move within the closed prison estate. She considered that the claimant required more time to apply newly acquired skills to consolidate performance and to formulate long term plans in greater depth. She considered that the claimant should be tested in the more challenging environment of a category C prison before he was moved to open conditions.[4]On 26th May 2005 an oral hearing took place before the Parole Board to determine whether the claimant should be released or whether a recommendation should be made for a transfer to open conditions. It is fair to say that much of the evidence before the Parole Board focused on whether the Parole Board should accept or reject the recommendations that the claimant should progress to open conditions. In its decision letter of 2nd June 2005 the Parole Board declined to release the claimant. However, it recommended the claimant's transfer to open conditions. In its recommendation the Parole Board said that at the time of sentence it was felt that the claimant minimised his criminal behaviour and failed to appreciate the traumatic consequences of his violent actions. However, he now fully acknowledged his responsibility for the part he played and was said to demonstrate improved levels of victim empathy. It was apparent that he had made good progress in seeking to explore the causes and consequences of his offending behaviour. He had completed a number of relevant offence focused programmes, including anger management and enhanced thinking skills, together with drug and alcohol awareness programmes. It was also felt that he had matured and benefitted from the the work he had undertaken in the therapeutic community. No further formal offence work was proposed by the Parole Board for completion within the therapeutic community and the recommendation of transfer to open conditions was endorsed by the Parole Board with both probation supervisors sharing the same opinion. The Parole Board placed greater weight on the evidence of the wing manager and counsellor than that of the Lifer Manager. The Parole Board was satisfied that the risk presented by the claimant could be safely managed in open conditions and recommended a transfer accordingly.[5]In September 2005 the claimant was supplied with a draft decision taken by the Secretary of State in light of the decision of the Parole Board. In that draft decision the Secretary of State concluded that, first, the claimant should not be allocated to open conditions and, secondly, that the next Parole Board review of the claimant's case should be conducted in September 2006, some 16 months after the first review.[6]On 25th October 2005 solicitors acting for the claimant wrote a letter before claim. In this letter it was contended that, first, in arriving at his conclusion that the claimant should not be transferred to open conditions, the Secretary of State had relied upon a psychologist's report that had not been before the Parole Board and which had not been disclosed to the claimant or his legal representatives before the draft decision was taken. It was contended that the failure to disclose the psychologist's report was procedurally unfair and it was said that the claimant was entitled to make representations regarding that report. Secondly, it was said that the failure to conduct the next Parole Board review within 12 months of the last review amounted to a violation of Article 5(4) of the European Convention on Human Rights.[7]On 28th October 2005 the Secretary of State responded to the letter before claim. The letter stated that it was not accepted that the Secretary of State was obliged to disclose the psychologist's report. However, that report was disclosed at that point. The letter did not address the complaints about the timing of the next review. The claimant's solicitors sought to obtain instructions on the psychologist's report. However, before any representations could be drafted, on 4th November 2005 the claimant was informed that the Secretary of State had finally decided that the claimant would not be allocated to open conditions. In addition, the claimant was informed that it had been decided that his next Parole Board review should be concluded in September 2006. The Secretary of State's decision included the following paragraphs:
"The Secretary of State does recognise the progress that you have made since sentence, particularly in the Dovegate Therapeutic Community, and he is keen to allow this positive momentum to be maintained. He considers that there is considerable benefit to be gained in your case by adopting structured risk assessments in those treatment areas that are directly linked to your violent offending, including assessment of any personality disorder. A full psychological assessment utilising structured assessment tools would determine not only any outstanding treatment needs, but importantly risk management strategies for the future. Such work should be conducted as soon as possible and could include HCR-20 and PCL-R assessments. He considers that such assessments could take place in a non-therapeutic or lower security environment (but not open conditions), and could focus on your possible suitability for formal substance misuse and violent offending interventions. Your next Parole Board oral hearing will be scheduled to take place in September 2006."
[8]On 4th November 2005 the claimant issued proceedings for judicial review. Three decisions were challenged:(1) the decision that the claimant's next Parole Board review should be completed in September 2006,(2) the decision that the claimant should not be moved to open conditions, and(3) the decision that the claimant should not be moved to category C conditions. The issues were identified as follows: (1) whether Article 5 of the European Convention on Human Rights had been violated by the decision of the Secretary of State that the next Parole Board review should take place more than one year after the last Parole Board review, (2) whether the Secretary of State acted unlawfully by failing to invite the claimant to make representations in the relation to the psychologist's report, and (3) whether the prison service was acting unlawfully by refusing to move the claimant to category C conditions because he had less than 12 months to serve until his next Parole Board review. The third issue is no longer a live issue. That head of claim is no longer pursued by the claimant.[9]I turn first to the question of the interval between the reviews by the Parole Board. Section 28(7) of the Crime (Sentences) Act 1997 provides:
"A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time - (a) after he has served the relevant part of his sentence; and (b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference."
[10]Article 5 of the European Convention on Human Rights provides, insofar as it is relevant to present proceedings:
"1. Everyone has the right to liberty and security of the 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."
[11]Paragraph 4 of Article 5 provides:
"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."
[12]It was common ground before me that the test for this court to apply in deciding this first issue is whether the Secretary of State's decision succeeds or fails in providing a speedy review, as required by Article 5(4), having regard to all the circumstances of the case, giving due weight to the views of the Secretary of State, the Secretary of State being the person who through his servants or agents is in a good position to assess all of the relevant circumstances.[13]In the course of argument I have been taken to a number of decisions of the European Court of Human Rights which are in point. In particular, I have be taken to Oldham v United Kingdom, to Hirst v United Kingdom and to Blackstock v United Kingdom. The first two of these authorities were considered in detail by Gibbs J in his judgment in R (Day) v Secretary of State for the Home Department [2004] EWHC 1742 (Admin). I gratefully adopt his analysis of these authorities. Blackstock does not affect that analysis, in my judgment.[14]The following points emerge. First, there is no presumption than an interval of more than one year between the reviews infringes Article 5 ECHR. The question as to what is required in order to give effect to the right for a speedy review is one which will depend on the circumstances of each individual case.[15]Secondly, nevertheless, guidance can be obtained from the judgments of the Strasbourg court. They provide a useful guide as to what the law should or should not regard as a speedy review. As Gibbs J observed in Day, it is plainly, on the basis of case law, easier to establish that a decision which sets an interval of more than a year falls foul of Article 5 than a decision setting one of less than a year. However, as the Judge then observed, it is a matter of fact and degree in every case.[16]Similarly, in Murray v Parole Board and Secretary of State for the Home Department [2003] EWCA Civ 1561, Sedley LJ, delivering the judgment of the Court of Appeal and referring to the judgment of the Strasbourg Court in Oldham, said:
"It seems to us, however, that the sense of the passage is that, in the Court's (and previously the Commission's) practice, an interval of up to a year has ordinarily to be shown on some particular ground to be in breach of article 5(4) in order to be justiciable, whereas an interval of more than a year has generally to be shown not to be in breach of it."
[17]Thirdly, it appears that the context of the case would be a vital consideration. As Gibbs J observed in Day, there may be many, perhaps the majority of cases, where a review in less than two years is quite unnecessary for the purpose of complying with Article 5, and he gives an example of a person who has, by past history and present evidence, shown himself to be a continuing danger to the public and where the situation is highly unlikely to change in the short term.[18]Fourthly, as I read them, these Strasbourg decisions do not have the effect, and are not intended to have the effect, of amending the United Kingdom legislation by substituting for the period of two years expressed in sub-section 7 a period of one year. It is clear from the Strasbourg cases that it will be necessary for consideration to be given in each case to the particular circumstances of each case and the context in which it arises.[19]In the present case the hearing date of the first review before the Parole Board was 26th May 2005. On this basis it is said by Mr Southey on behalf of the claimant that the length of time between that first review and the proposed second review would date from 26th May 2005 to the potential hearing date which is intended to be in September 2006. It is on that basis that he submits that the interval is one of some 16 months.[20]Before this court Mr Southey made the following submissions:(1) He submits that the Secretary of State must justify periods greater than one year between reviews and that no justification has been provided.(2) He says that the Parole Board appeared to accept that the claimant had made significant progress since being in prison.(3) He submits that the progress identified by the Parole Board is particularly significant in light of the fact that the claimant was only sentenced to life imprisonment in August 2001, and the fact that the claimant has changed significantly in a relatively short period indicates that he is capable of rapid change.(4) He says that the fact that the claimant is capable of rapid and significant change is a matter that carries great weight when determining whether a period greater than one year between reviews is compatible with Article 5. He says that the progress made by the claimant is sufficient to mean that there was no sufficient justification for failing to conduct an annual review of his detention.(5) He says that the fact that the claimant was sentenced to a short tariff following the imposition of an automatic life sentence implies that it will not be necessary for him to spend a period in open conditions before his eventual release.(6) He says that the fact that the claimant is detained in category B conditions provides no justification for failing to conduct an annual review.(7) He says that the Secretary of State has not identified any work that it will take the claimant more than one year to complete.[21]In the present case it is clear that the claimant has made very considerable progress during his time in custody. I have already referred to the initial assessment which referred to his attitude as sometimes atrocious. Much more favourable assessments appear in the papers which were placed before the Parole Board for the purposes of the first review. It is clear that the claimant has made a considerable change for the better in a relatively short period of time. He has shown that he is a young man capable of changing his behaviour and capable of making rapid progress in this regard. It is also a relevant consideration here, to my mind, that for an automatic life sentence his tariff is an unusually short one and it may well be that because of that it may not be necessary for him to go into open conditions prior to his release. That, to my mind, makes frequent reviews of his progress by the Parole Board all the more important. I am satisfied that these features of the case render the guidance of the Strasbourg cases particularly apposite to the present case. For these reasons I consider that it is necessary for the Secretary of State in the particular circumstances of this case to explain why it is necessary for the period between reviews to be a period of 16 months.[22]The claimant points out that the Lifer Manager did not identify any specific work which the claimant needs to complete. Furthermore, he does not suggest a need for structured risk assessment. Similarly, the Parole Board did not propose the undertaking of any further form of offence work. However, a very different view was taken by the Secretary of State. It is likely that he was influenced in coming to that conclusion by the report of the psychologist, Miss Long, which is the report which forms the basis of the second head of the application to this court. I should draw attention to the fact that in her report Miss Long considered in detail the question of the suitability of the claimant for further offending behaviour work. In particular, she observed that the claimant had not yet undertaken any structured or focused work on his violent offending through, for example, the CSCP. She considered that this was essential in the circumstances. She also noted that it had been recommended that the claimant complete further work in improving his skills to deal with cognitive deficit.[23]Her general conclusions and recommendations were as follows:
"In summary, Mr Faulkner has been in custody for 3 1/2 years for the violent assault on an adult male. His work completed so far during this sentence has not been subjected to any structured risk assessment. Such a risk assessment should be undertaken as soon as is practicable and should include the HCR-20 and the PCL-R. I would also recommend that Mr Faulkner be transferred to an establishment where he can be assessed as to his suitability for focused work on his substance misuse (Drugs TC or shorter programme such as the 12-step) and violent offending (CSCP). Generally, my considered view is that it would not be wise to simply transfer Mr Faulkner to open conditions without properly assessing and addressing relevant treatment needs in his case. One further practical point arises in Mr Faulkner's case, which is that he has not yet been able to demonstrate sustained pro-social behaviour outside of a non-therapeutic and strongly supportive environment. This would seem a pre-requisite to a successful graduated release plan and is strongly recommended."
[24]The Secretary of State in his final decision included reasoning which I have already quoted in this judgment and which seems to me to reflect some of the thinking in the report of Miss Long. The claimant says that most of the matters identified as to be carried out are assessments. The only exception is CSCP. The claimant here says that there is only a recommendation for an assessment in the report prepared by Miss Long. I am unable to accept that submission. It is clear to me, when one considers the various passages of the report together, that the intention of the author was not only that he be assessed for CSCP but that if he was found suitable he should undertake it. I draw attention to the fact that Miss Long had expressed the opinion that it was essential in the circumstances that he undertake such structured focused work on his violent offending through, for example, the CSCP.[25]The Secretary of State's justification for the period between the reviews is set out in the witness statement of Mr Smith:
"10. Mr Faulkner has not challenged the conclusions that the Secretary of State has reached, but has challenged the timing of the next review of the progress he has made on the outstanding work he requires. The decision letter stated that the next Parole Board review should be completed in September 2006. In order for the review to be completed by this time, reports will need to be compiled in April 2006. This date was selected so that Mr Faulkner would have the opportunity to complete the outstanding work that has been recommended to him, and will allow for the results of this work to be assessed and monitored. I am informed by my colleagues at HMP Dovegate Therapeutic Community, that since the communication of the Secretary of State's decision Mr Faulkner has undergone the PCL-R assessment, but has not yet been assessed under the VRS or HCR-20, nor has he completed the CSCP. 11. If an earlier date was set then Mr Faulkner may be able to complete some of the outstanding work, however, there would not be sufficient time to monitor the results of the offender behaviour work and to assess whether or not the courses have addressed all areas of concern. This would mean that it would be unlikely that Mr Faulkner would be able to demonstrate that he had remedied the problems highlighted at his previous Parole Board review. Accordingly, in all the circumstances, the date for the next review is entirely rational and justifiable."
[26]Mr Southey, for the claimant, submits that the evidence before the court does not address why the assessments could not be completed in time for a review in May 2006. He observes that there is no evidence that any offending behaviour work has in fact been undertaken or will be completed in time for a review.[27]I am persuaded that the Secretary of State has justified his decision that it would take until April 2006 to complete these assessments, to evaluate them and to prepare the appropriate reports for the Parole Board. The evidence on this is thin but I am persuaded that the case is made out in paragraphs 10 and 11 of the witness statement of Mr Smith.[28]I should add that no challenge has been mounted to the decision that these assessments should be carried out, or to the decision that the claimant should undertake this further work. Nor is it contended on behalf of the claimant that these assessments and work could be completed within a shorter period than that indicated by Mr Smith in his evidence.[29]Mr Southey makes the further point that CSCP is an open- ended programme and will not be completed by April and so it is said that it cannot logically justify the April date. As I understand it, it is correct that CSCP is a continuing process and that, as a result, there is no set completion date. However, I am satisfied that the Secretary of State was fairly entitled to conclude that progress on CSCP up to April 2006 should be assessed and placed before the Parole Board on the next review. I do not consider that waiting for April 2006 so as to have these assessments, and in particular the assessment of progress on CSCP, infringes the claimant's right to a speedy review under Article 5(4).[30]Mr Southey then makes a further submission based on paragraph 10 of Mr Smith's witness statement. He makes the point that Mr Smith contemplates, or indeed accepts, that the appropriate reports can be compiled by April 2006. Mr Southey then asks rhetorically why it is necessary to wait until September for the next review hearing? It is clear that logistical difficulties of organisation would not be an answer and would not provide a sufficient justification for the postponement of such a review.[31]Here, I refer in passing to the judgment of the Court of Appeal in Murray at paragraph 24. However, I am satisfied that the answer is provided by the Parole Board Rules. I do not propose to consider the Parole Board Rules in detail. However, I should observe that they set out a structure for the conduct of proceedings before the Parole Board. They set a detailed timetable. In particular, Rule 6 provides that within eight weeks of a case being listed, the Secretary of State shall serve on the Board various documents, including the reports specified in the schedule, and under Rule 7, within 12 weeks of a case being listed the prisoner is required to serve on the Board and the Secretary of State any representations about his case that he wishes to make. These allow reasonably generous periods for these steps to be taken, but these periods were no doubt set because it was considered that such periods were necessary to secure procedural fairness before the Parole Board. It is important to bear in mind that the matters which are canvassed at such a hearing before the Parole Board include matters of expert evaluation. It is also necessary to bear in mind the conditions in which prisoners are kept and the fact that they may sometimes encounter difficulties in immediate communication with advisers.[32]Accordingly, for these reasons I am satisfied that the Secretary of State has justified the decision to set the next review of the claimant's case at September 2006. I am satisfied that there has been no infringement of his right under Article 5(4) to a speedy review.[33]I turn to the second issue which is whether the psychologist's report, that of Miss Long, should have been disclosed. The issue here is one of procedural fairness. On behalf of the claimant it is said that the Secretary of State in arriving at his conclusion was influenced by a report placed before him of which the claimant had not had sufficient prior notice to enable the claimant to make submissions. The claimant has, in fact, lodged with the court a witness statement in which he has set out those steps that he would have taken had he been provided with a copy of this report in sufficient time before the Secretary of State took his final decision. In particular, he says that he would have discussed the possibility of commissioning an independent expert with his solicitor. He would also have provided submissions regarding his entrance to the therapy community here at HMP Dovegate, and he says that he would have presented submissions regarding his time in the therapeutic community. He notes that Julia Long suggests the possibility of further work. He says that he has covered that work in the therapeutic community via therapy counsellors, discussions and group work.[34]The issue which arises for consideration is, in my judgment, very similar to that which arose in the case of R (Burgess) v Secretary of State for the Home Department. It was decided by a Divisional Court comprising Rose LJ and Elias J on 3rd November 2000. That case was concerned, as we are concerned here, with the disclosure of a psychologist's report which was placed before the Secretary of State before he took a decision as to whether to act on a recommendation of the Parole Board. It is not clear from the report in Burgess whether that psychologist's report was actually before the court. The judgment of Elias J, which refers at more than one point to whether certain inferences could be drawn, rather suggests that the report was not before the court.[35]In that case, on behalf of the Secretary of State it was submitted that there was a critical distinction between an in-house assessment of evidential material on Carltona principles (Carltona v Commissioners of Works [1943] 2 All ER 560) and the introduction of new evidence or external advice. Rose LJ and Elias J accepted that distinction.[36]Rose LJ said at paragraph 61 that there was in his view no new material before the Secretary of State which had not been before the Parole Board when they made their recommendations. The report of the psychologist was, in his view, an in-house report to which the Secretary of State was entitled to have regard without disclosing it to the applicant.[37]Similarly, Elias J, having referred to the judgment of Gibson LJ in R v Secretary of State for Education ex parte S [1995] ELR 71, concluded that there was no proper basis for inferring that the report provided any new material, as opposed to providing an analysis for the existing material. The learned Judge added that had the report done so, then he had no doubt that it should have been disclosed.[38]Applying this statement of the law to the facts of the present case, I conclude that there was no new material in the report so as to require the disclosure of the report to the claimant in order to enable him to make submissions before the Secretary of State made a final decision. This is a question of procedural fairness and what is required will depend on the particular circumstances of each case. The claimant says that the report included further recommendations for work and assessment but the report was more than an analysis of the material which was before the Board. In particular, it was, he says, an application of expertise in order to identify new work to be undertaken and new assessments. He complains that he had no opportunity to address these new matters before the Parole Board. He says that it raised new areas of concern which he was not permitted to address.[39]However, it does not seem to me that in the particular circumstances of this case there was any obligation to disclose the report so as to enable the claimant to make submissions on it. When one examines the report, it becomes clear that it is based entirely on the evidence which was before the Parole Board. The report itself sets out the sources of information on which the report is based and they are all matters which were contained in the folio which was lodged before the Parole Board. There was no new evidence here, and the contrary is not suggested. The report undoubtedly contained an expert assessment, but it seems to me that it falls clearly within the Carltona principle. There were conclusions drawn and recommendations made as to what action should be taken, but those conclusions and recommendations turned on the interpretation of the material which was before the Parole Board and on which the claimant had had an opportunity to make representations.[40]Finally, I should add that I am fortified in this conclusion by the judgment of Sullivan J in R v Secretary of State for the Home Department ex parte Draper. At paragraph 45 the Judge asks whether fairness requires that the prisoner should be told of the reasons in the Secretary of State's preliminary response and accepts that there may be circumstances in which fairness may require that the prisoner should be given some indication of the matters which are troubling the Secretary of State where fresh material has emerged that was not before the Board, where it appears to the Secretary of State that the Board has either failed to have regard to a particular matter which the Secretary of State considers important or has itself raised some new point on which the prisoner has not had the opportunity to make representations.[41]However, in the circumstances of that case he considered that no useful purpose would have been served by issuing a "minded to refuse" letter and inviting a fresh round of representations. Similarly, in the present case I conclude that no useful purpose would have been served by permitting the claimant to make further submissions on the basis of the report of Miss Long. For these reasons this ground of the application also fails and the application will be dismissed.[42]MR SOUTHEY: My Lord, the matter of costs. We would seek an assessment of the legal service of our costs.

MR JUSTICE LLOYD JONES: There shall be such an assessment.

[44]MR SOUTHEY: My Lord, your Lordship's judgment, in my submission, in relation to the first issue does raise something of an important issue of principle because your Lordship's judgment effectively concludes that a period of five months in terms of delay, in particular period of five months takes you beyond the one year that they apply in cases, like the claimant had made progress, may be justified by the Parole Board Rules. I took your Lordship to the comments there.[45]MR JUSTICE LLOYD JONES: I think in fact we only went to one paragraph. You took me to one statement in that case.[46]MR SOUTHEY: Your Lordship, yes, it was obiter in the context of the judgment because the judgment there was about administrative convenience. I am not seeking to argue that Parole Board Rules are ultra vires in some way because of the delay they provide. In many cases Parole Board Rules provide a sensible timetable that is perfectly unobjectionable. It could not be objected to, but in the context of the case where, as your Lordship invited me to correctly acknowledge, the starting point is a year and whether there is then justification for departing from that one year. Compliance with the Rules, in my submission, as a justification is an important issue and whether that provides sufficient justification is an important issue as a result and is not, in my submission, an appropriate issue to be considered by the higher courts.[47]MR JUSTICE LLOYD JONES: What do you say about that, Mr Greatorex? I am not sure what is the point in the passage in the case to which it is said to be relevant.[48]MR SOUTHEY: Just to assist your Lordship, I think here it is tab 4. It is just the point which in many respects is trite from the Convention, which is that the obligation states to organise its legal system to enable to it comply with Convention requirements. My Lord, there is a tension, in my submission, between that approach which acknowledges the need to make sure that the hearings take place in accordance with, among other things, a schedule which complies with the Convention, and your Lordship's conclusion, effectively, of delay from April to September in the context of this claimant's case is justified by the Rules rather than by any need for progress on his part.[49]MR JUSTICE LLOYD JONES: I may not have made myself entirely clear and I may need to reformulate it when I come to correct the transcript, but my intention was to put it on the basis that it is clearly necessary, once the reports are available, for there to be a sufficient period for those to be considered and for submissions to be prepared to go before the Tribunal. I do not find the periods in the Rules are unreasonable in those circumstances.[50]MR SOUTHEY: My Lord, the point I make, anyway, if I misunderstood your Lordship's judgment, I apologise, but I still maintain there is an important point there about the extent to which those Rules can justify, which is effectively, in the light of your Lordship judgment, the only justification a period of four months to life.[51]MR JUSTICE LLOYD JONES: I do not think that argument has any reasonable prospect of success, so I am not going to grant you permission.[52]MR SOUTHEY: Thank you.

Cited in 1 later judgment