Martin v Secretary of State for the Ministry of Justice [2007] EWHC 1797 (Admin)

Case No CO/4827/2007

[2007] EWHC 1797 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 18th July 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE AULD

MR JUSTICE COLLINS

Between

MARTINClaimant

Between

SECRETARY OF STATE FOR THE MINISTRY OF JUSTICEDefendant

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MR H SOUTHEY (instructed by Prisoners' Advice Service) appeared for Claimant

MR P PATEL (instructed by the Treasury Solicitor) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE COLLINS: The claimant in this case, who seeks judicial review of his continuing detention in prison, is currently serving a sentence of three years which was imposed for an offence of robbery committed on 5th September 2004. The sentence expires on 16th September of this year. He is in custody at present because he was recalled for alleged breaches of the licence to which it is said by the Secretary of State he was, at the relevant time, subject. The issue is whether he was in fact subject to licence at the relevant time, because the recall took place on 20th December 2006 and on 16th December he had served three quarters of the three year sentence which had been imposed upon him.

[2]Those circumstances require consideration of the relevant provisions of the 1991 Criminal Justice Act as amended and the provisions of the 2003 Act, together with the transitional provisions and, most importantly, how the decision of the House of Lords interpreted those various provisions in R (Stellato) v Secretary of State for the Home Department

[2007] 2 WLR 531

[3]Because he had committed an offence which occurred before April 2005, the claimant was subject to the regime under the 1991 Act. Three years made him a short-term prisoner, the threshold between short and long-term being four years' imprisonment. He therefore, at that time, was entitled to be released on licence when he had served half of his sentence. Normally he would be entitled to unconditional release when he had served three quarters of that sentence. He was indeed released on licence on 16th March 2006 which was the halfway point of his sentence. That release was pursuant to section 33(1)(b) of the Criminal Justice Act 1991.

[4]On 6th May 2006 the Secretary of State (then the Home Secretary) revoked the licence and recalled him to prison. He made representations against that recall and so the matter was considered by the Parole Board. On that consideration, which took place on 20th May 2006, the Board decided as follows:

"Mr Martin was released on licence on 16th March 2006 following a three year sentence for the offence of robbery. A breach was initiated on 6th May 2006 for breaching curfew requirements at his approved premises and he was returned to Wandsworth Prison on 9th May 2006. The Panel have received information that Probation now wish to rescind the recall as they have information that Mr Martin is in hospital having had an operation to his groin. The Panel considered that despite Mr Martin being in hospital when he breached curfew that the recall was justified on the basis of his illegal drug uses, his positive drug test, his being late for curfew on 27th March, and his whole night breach of curfew on 1st April. They considered that this behaviour indicated that his risk of re-offending was unacceptable. They decided to set a short review date for 7th June 2006 for the following information to be provided to the Panel -- (1) Confirmation of hostel placement."

In fact they received the necessary confirmation and so the claimant was released as a result of the decision of the Parole Board on 20th June, the Parole Board having reconsidered the matter on the 13th and agreed to release him with some additional conditions on his licence.

[5]He remained free until 20th December 2006 when his licence was revoked and he was recalled to prison. It appears that he had committed an offence of assault and had been guilty of other behaviour which indicated that he was drinking too much and he had been tested positive for cocaine. There was a concern that he was visiting his partner, who also suffered from substance misuse problems and whom he had in the past assaulted. It seems that he was in due course charged with an offence of assault and duly convicted of it. He was sentenced, we are told, to four months' imprisonment in relation to that, presumably some time in early 2007. That sentence, we are told, expired on 20th February of this year, it being made concurrent to the sentence that he was already serving.

[6]The Parole Board acted as they did by virtue of powers conferred on them by section 256 of the 2003 Act. That enabled them to fix a date for release on licence, or to fix a date for the next review by the Board if they did not recommend immediate release on licence. Prior to the coming into force on 26th January 2004 of section 256, the Board had no power to fix a subsequent date or a date for a subsequent review. Their obligation under the old provisions was to consider whether the recall was one which was justified and, if not, to order an immediate release. There was no specific power to adjourn matters or to accept that they should reconsider the matter (this is in relation to a short-term prisoner) before the three quarter time of the sentence. What in fact they did from time to time, if they felt that it was a case where, albeit the recall was justified, there was likely to be a relatively short time before it might be appropriate to release, was to adjourn the matter to enable them to receive further information. By that means, they could achieve a just result in an individual case if they thought it appropriate so to do. But, as I say, they had no express power to do what they could do and did in the circumstances of this case.

[7]Under the provisions of the 1991 Act, as amended, the only circumstances in which a short-term prisoner could be released on licence, as opposed to unconditionally, after serving three quarters of his sentence was if he had been released on licence when he had served half of his sentence but had been recalled to prison. In those circumstances, at the three quarter mark he would be released on licence as opposed to unconditionally. But the relevant provisions which produce that are contained in section 33(3) of the 1991 Act, which provides:

"As soon as a short-term or long-term prisoner who -- (a) has been released on licence under this Part; and (b) has been recalled to prison under section 39(1) or (2) below would (but for his release) have served three quarters of his sentence, it shall be the duty of the Secretary of State to release him on licence."

[8]Mr Patel has accepted, and in my judgment rightly accepted, that the only sensible construction of that must be that the prisoner in question is in custody when the three quarter mark is reached, because if he is lawfully at large the obligation of the Secretary of State to release him on licence makes no sense. I am bound to say that I have some difficulty with the words in brackets "but for his release", which do not seem to me to make a great deal of sense, but that does not affect the crucial construction of section 33(3). The effect, therefore, was that a prisoner who was not in custody, albeit he may have been recalled and subsequently been released, was not subject to section 33(3) and therefore was not one for whom unconditional release at the three quarter mark could be translated into a conditional release (by conditional I mean on licence).

[9]So far, there is no dispute between Mr Patel and Mr Southey as to the correct construction of that provision. One looks to section 37 of the 1991 Act which deals with duration and conditions of licence. That provides:

"Subject to subsections (1A), (1B) and (2) below, where a short-term or long-term prisoner is released on licence, the licence shall, subject to any revocation under section 39(1) or (2) below remain in force until the date on which he would (but for his release) have served three quarters of his sentence."

That simply makes the point -- and it is really the same point as is reflected in the provisions of section 33 -- that unless there was a revocation of a licence under section 39(1) or (2), then three quarters was the point upon which he would be released unconditionally.

[10]Section 39 itself is headed "Recall of long-term and life prisoners while on licence", but that heading is misleading because by amendment in 1998 by the Crime and Disorder Act of that year the provisions in section 39 were extended to include short-term prisoners. Section 39(1) provided:

"If recommended to do so by the Board in the case of a short-term or long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison. (2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable. (3) A person recalled to prison under subsection (1) or (2) above -- (a) may make representations in writing with respect to his recall; and (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations. (4) The Secretary of State shall refer to the Board -- (a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and (b) the case of a person recalled under subsection (2) above. (5) Where on a reference under subsection (4) above the Board -- (b) recommends in the case of any person his immediate release on licence under this section, the Secretary of State shall give effect to the recommendation. (6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."

The effect of section 39(6) is that once the licence is revoked then the sentence is put on hold, as it were, so long as the prisoner remains at large and the period starts to run again when he is apprehended.

[11]Section 254 of the 2003 Act deals now with recall of prisoners while on licence and provides by subsection (1):

"The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to be prison. (2) A person recalled to prison under subsection (1) -- (a) may make representations in writing with respect to his recall, and (b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations. (3) The Secretary of State must refer to the Board the case of a person recalled under subsection (1). (4) Where on a reference under subsection (3) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation . . . (6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large."

That reflects the similar provisions of section 39. The difference in 254 essentially is that it is for the Secretary of State to decide whether a person should be recalled, and if he does so he must, whether or not representations are made, refer the matter to the Parole Board. Section 256 deals with the powers of the Board. I have already referred to them.

[12]Finally, I should refer to the transitional provisions which are contained in the Criminal Justice Act 2003 (Commencement Number 8 Transitional and Savings Provisions) Order 2005, SI 2005/950. The relevant provisions for our purposes are contained in paragraphs 19 and 23 of Schedule 2 to those regulations. Paragraph 19 deals with the effect of the coming into force of various provisions, including section 249 which deals with duration of licence and changes the regime which was in force under the 1991 Act, in as much as release on licence can now continue beyond the three quarter period. The coming into force of that section 249, and then: (c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 of the 1991 Act . . . . is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4th April 2005." Thus, section 33 still applies albeit section 39 does not, that having been repealed on the coming into force of the 2003 Act by the relevant time so far as this claimant is concerned.

[13]However, section 39 is referred to in paragraph 23 of the schedule which provides:

"(1) Subject to sub-paragraphs (2) and (3), in relation to a prisoner who falls to be released under the provisions of Part 2 of the 1991 Act after 4th April 2005 [which of course covers this claimant] -- (a) the reference to release on licence in section 254(1) of the 2003 Act (recall of prisoners while on licence) shall be taken to include release on licence under those provisions; and (b) the reference in sections 37(1) and 44(3) and (4) [which are not material] of the 1991 Act to revocation under section 39 of that Act shall be treated as a reference to revocation under section 254 of the 2003 Act."

It is to be noted that it does not provide that the reference in section 33(3) of the 1991 Act to section 39 is to be treated as a reference to section 254.

[14]The result of all that appears to be that section 39 has gone. In section 33(3) it is not replaced, and so on the face of it there is little left of section 33(3). Yet, section 33 is retained in force by virtue of paragraph 19. It may well be that that matter may give rise to the need to consider its effect but not, I am glad to say, directly in the circumstances of this case.

[15]This claimant was, as I have already indicated, not in custody on 16th December 2006, the three quarter mark of his sentence. In those circumstances, there would appear to be no provision under the old regime which enabled him to remain subject to licence. The only provision which could have achieved that result would have been, assuming it was still applicable, section 33(3). But section 33(3) would only enable him to be subject to licence if he was in custody at the three quarter mark date. Since he was not, he would not have been able under section 33(3) to be subject to licence thereafter. The general approach, namely that he was bound to be released unconditionally, would have applied.

[16]In the circumstances of his case there was a sanction available because he was convicted of an offence committed whilst he was on licence. That being so, it would have been open, under the provisions then in force, to the court which sentenced him in respect of that offence to consider whether he ought to be ordered to serve the whole or any part of the balance of the sentence (that is the quarter of the sentence left) or such part of it between the date of the commission of the offence and the date upon which it would have been fully served. We do not know what was said to the sentencing court, but it certainly would appear that that was not taken into account. Indeed, it would be surprising if it had been, because he was then in custody still serving the balance of this three year sentence, it then being believed that he was lawfully in custody as a result of the powers contained in the relevant provisions.

[17]Under the 2003 regime, as I say, there would have been (and again this is common ground) power to maintain licence conditions after the three quarter mark. But what is said is that the decision of their Lordships' House in Stellato and the reasoning in that case precludes the Secretary of State from asserting that he is still entitled to be regarded as subject to licence conditions. Putting it very broadly, in Stellato, which was concerned with a long-term prisoner and the effect of paragraphs 19 and 23 of the Commencement Order to which I have already referred, essentially what their Lordships decided was that there was to be no substantial change affected by the transitional provisions and that it was not possible to impose upon a prisoner more onerous conditions than were applicable under the old regime. It is perhaps best encapsulated in observations of Lord Brown of Eaton-under-Haywood, with whose opinion the other members of the House agreed, and on page 542, letter G, paragraph 44 he said this:

"Although these provisions [that is the transitional provisions] are, indeed, somewhat opaque and ill-drafted, their intended effect is in the last analysis quite clear. The new scheme for recalling and re-releasing prisoners was to come into immediate effect for everyone: no longer was the Parole Board to be primarily responsible for initiating a prisoner's recall by making a recommendation under section 39(1), the Secretary of State's power being limited by section 39(2) to urgent cases where it was impracticable to await a recommendation. Henceforth recall was to be solely for the Secretary of State. Pre-Act offenders were not, however, to be disadvantaged by the new parole regime, in particular with regard to the effective length of their sentences and the period for which they were to be at risk of recall after release on licence. Nor is any of this in the least surprising. The more stringent regime introduced by the 1998 Act was, as already explained, to apply only to those offending after September 1998. And this, as Scott Baker LJ pointed out at para 15 of his judgment, 'is consistent with the longstanding principle that existing prisoners should not be adversely affected by changes to the sentencing regime after their conviction'. He also drew attention to the practice direction issued by Lord Bingham of Cornhill CJ on 22nd January 1998 (Practise Direction (Custodial Sentences: Explanations) [1998] 1 WLR 278) directing that defendants be told the effect of the sentence passed upon them. In the respondent's case this would have required that he be told: 'After your release you will also be subject to supervision on licence until the end of three quarters of the total sentence'."

Although Stellato was long-term, that would have been exactly the same in respect of the claimant as a short-term prisoner. Lord Brown went on to say that the result for which the Secretary of State contended would be a surprising one and unlikely to have been intended by the legislature. If it were intended, one would have expected it to have been enacted in the clearest of terms.

[18]Those are general observations. Lord Brown does not suggest that it is possible to look to the individual facts of a case to try to ascertain whether in that case it might have been, under the old regime, that he would have been kept in custody rather than having been released. The reality is that this claimant had been released. Mr Patel has submitted that it was apparent that the Parole Board, in the circumstances of this case, did not decide to adjourn, which was the way in which they could have achieved release under the old regime, but used their new powers. Therefore, he submits, since they could still have adjourned under the new regime, it is not right to suggest that he would have been released under the old regime. If he had been in custody, he would not be disadvantaged by the release on licence.

[19]That submission, in my judgment, is simply not open to Mr Patel on the approach which is indicated by the House of Lords in Stellato. But even if it were, it would fail on the facts because the Parole Board recommendation, which I have already read, made it clear that they did consider that he should be released -- and indeed the Probation Service apparently decided that that should occur -- but they were only waiting for the confirmation of a hostel placement. It seems to me that that is just the sort of case which would have been dealt with by an adjournment under the old regime, which was the only way in which the Parole Board could have ensured that someone who deserved, in their view, to be released but not quite yet because sufficient arrangements had not been made, was able to be so released. But in my judgment, as I have indicated, it is not appropriate to go into those factual questions. One has to look to see whether the individual was in fact in custody at the material time to see whether it was appropriate to decide that he was still subject to licence conditions.

[20]It follows from that that as from 16th December 2006 the claimant was entitled to unconditional release from his three year sentence. The only sanction left, so far as he was concerned, being that if he committed any further offence during the period before the sentence came to an end (that is to say before the three years was up), was that he could be required to serve the balance of the sentence in addition to any sentence imposed for the fresh offence. That being so, the claimant is now detained unlawfully and this claim must in my judgment succeed.

LORD JUSTICE AULD: For the reasons given by my Lord I too am of the view that the claim for judicial review should succeed. Mr Southey, you have three heads of relief which you claim, do you not?

[22]MR SOUTHEY: My Lord, yes. I think in terms of declaration the judgment speaks for itself, and so I do not think it is necessary to have a separate declaration, not least also because I am very conscious of the urgency with which it has been listed. My learned friend's position is that he is not clear about when the four month sentence lapsed so I would accept that the damages aspect needs to be adjourned.

LORD JUSTICE AULD: Well, the date we ought to have if we can. It runs from -- did you say 20th February or 17th February? The declaratory relief you were seeking was that the detention from the 17th was unlawful.

[24]MR SOUTHEY: Yes. That is the date we believe, but I am conscious that my learned friend in the skeleton has said on several occasions, and I understand perfectly understand why, that --

LORD JUSTICE AULD: That should be a matter capable of fairly quick resolution between you, should it not?

[26]MR JUSTICE COLLINS: There is perhaps an added complication, or maybe, I do not know, because presumably there was a time between his arrest for the offence and his appearing in court. It may be that he would have been remanded in custody, but for the fact, of course, that he was in any event in custody. I suspect no bail application was made. I do not know whether that will in any way affect the position.

[27]MR PATEL: As I understood it, from the claimant's own position, they have counted all of the time up until the time that Mr Martin was convicted and sentenced as remand time.

LORD JUSTICE AULD: You are at issue over the precise commencement date.

[29]MR PATEL: We are. Unfortunately I do not have instructions.

LORD JUSTICE AULD: What is urgent is that the court should issue a mandatory order for his immediate release. There is no difficulty about that. It seems to me desirable that the period of unlawful detention should be the subject of a formal declaration. That, in drawing up, is not quite so urgent. Then there is the question of damages, Mr Southey, and I think you were seeking an adjournment.

[31]MR SOUTHEY: I think it is fair to my learned friend, obviously, to be in a position to respond properly to that.

LORD JUSTICE AULD: Yes. Are you not seeking an adjournment of the matter?

[33]MR SOUTHEY: I assume my learned friend requires an adjournment.

LORD JUSTICE AULD: It should be adjourned for hearing in the Queen's Bench division rather than this court. Now, Mr Patel, can you, between you and Mr Southey, determine the appropriate date for declaration.

[35]MR PATEL: My Lord, yes.

LORD JUSTICE AULD: Within a matter of a day or so.

[37]MR PATEL: My Lord, we can do that.

LORD JUSTICE AULD: There should be an immediate mandatory order for his release.

[39]MR PATEL: My Lord, yes, because whatever the date may be --

LORD JUSTICE AULD: And an adjournment of the question of costs to the Queen's Bench.

[41]MR PATEL: My Lord, yes. The issue of damages to be referred to the Queen's Bench.

[42]MR JUSTICE COLLINS: Should we make any order as to the service of a claim or shall we leave that to be decided by a Master at a hearing if necessary?

[43]MR SOUTHEY: I think it might be worth leaving it to be settled by a Master. In my submission, it is quite often in the circumstances --

LORD JUSTICE AULD: We may not need to go there.

[45]MR SOUTHEY: Absolutely.

MR JUSTICE COLLINS: We simply order that it be transferred to the Queen's Bench division.

LORD JUSTICE AULD: How long would it take to settle between you what the appropriate date for the declaratory part of the order is to be? It can always be amended, of course.

[48]MR PATEL: We ought to be able to do that tomorrow.

[49]MR JUSTICE COLLINS: Why can we not immediately declare that any imprisonment after 16th December would be unlawful unless it was imprisonment as a result of or in connection with whatever the offence was that he had committed, and then leave it to you in due course to sort out precisely that. It is a matter to be raised before the Queen's Bench if the claim for damages arises, so that we do not have in our order to specify any precise date.

LORD JUSTICE AULD: We do not want to leave it hanging.

[51]MR SOUTHEY: That makes sense to me, my Lord.

[52]MR JUSTICE COLLINS: Otherwise, unless we make an immediate order for release, he may not be released immediately. Any order made ought to include whatever relief the court is granting. So if we leave it like that, you can do that this afternoon.

LORD JUSTICE AULD: Do you have any reservations, Mr Patel?

[54]MR PATEL: My Lord, no.

LORD JUSTICE AULD: Can we leave the parties to draw up an order for declaratory relief, immediate release and adjournment to a judge of the Queen's Bench division for assessment of damages.

[56]MR SOUTHEY: Just two other matters. One is we would seek our costs to be assessed if not agreed.

LORD JUSTICE AULD: You are Legally Aided, I take it?

[58]MR SOUTHEY: We are.

LORD JUSTICE AULD: Mr Patel?

[60]MR PATEL: Yes. Can I just mention for the purposes of the transcript in my Lord's judgment. There were two matters. The first was that -- it was not a mistake but just to give you a date. The conviction and sentence to four months' imprisonment was 7th February 2007.

[61]MR JUSTICE COLLINS: Incidentally, if it be right that he was released on the 17th it makes it clear account was taken of custody before sentence, does it not?

[62]MR PATEL: My Lord, that is what I think I said earlier. I think the case is that the period of time that he was in custody between 20th December and 7th February was treated as remand and that is why, subject to my instructions -- and I do not have full instructions -- but if that is correct that would probably be a reason why that is correct.

MR JUSTICE COLLINS: That sounds right.

[64]MR PATEL: My Lord, the second point is at two points in your judgment you talked about when the 2003 Act came into force.

MR JUSTICE COLLINS: I suddenly realise that it came into force on various dates.

[66]MR PATEL: It did. The relevant date is 4th April 2005.

[67]MR JUSTICE COLLINS: That is right, but the precise date does not really matter. It is just that the provisions were in force, so far as the Parole Board was concerned, at the relevant time.

[68]MR PATEL: My Lords, the last matter is I do ask for permission to appeal. As your Lordships are aware, this is a matter that concerns other short-term prisoners and clearly it is not a simple matter when one looks at the provisions. So we ask for permission to appeal.

LORD JUSTICE AULD: What about the proposed orders in the meantime?

[70]MR PATEL: My Lord, the difficulty there is your Lordships I think do have power to stay.

LORD JUSTICE AULD: Yes, we do.

[72]MR PATEL: Can I take some instructions. My Lord, the concern, as I put it in my application is really the wider implication rather than the implications of Mr Martin, so it may be that this was course adopted in Mr Stellato's case when the Court of Appeal gave judgment and it went to the House of Lords. They stayed the declaration but --

LORD JUSTICE AULD: But you cannot stay the immediate release.

[74]MR PATEL: They did not order immediate release though. They stayed the declaration and then ordered his release on bail on conditions and so, my Lord, if you are minded to grant permission I would ask you to adopt that course.

LORD JUSTICE AULD: Yes.

[76]MR SOUTHEY: My Lord, certainly what I would say is that although I can see that the case would have impact for other people, when one actually gets down to analyse the provisions in some respects in the manner described by Lord Brown, the actual effect of the provisions becomes clear when one looks at the merits. The prospects of litigants, for example, appealing to the Court of Appeal in writing are extremely low. In most circumstances the appellate court will have an oral hearing, whatever else happens.

LORD JUSTICE AULD: No, Mr Patel, we will not grant you permission. See if you can interest the Court of Appeal.

[78]MR JUSTICE COLLINS: Mr Patel, there is one matter that occurs to me. I hope you have had opportunity to take a relatively full note of my judgment. I am in fact not going to be here after this weekend until, I think, about 8th/9th August, some such time, so I doubt if I will have the chance to correct any transcript, unless the shorthand writer can get it to me by Friday.

[79]MR PATEL: We would be grateful to the shorthand writer.

[80]MR JUSTICE COLLINS: I will not hold her to it, as I recognise there are pressures, but obviously that be done if possible so I will have a chance to correct the transcript.

[81]MR PATEL: Could I ask for the transcript to be sent to the parties? The Secretary of State will pay for it.

MR JUSTICE COLLINS: Once it has been corrected you can ask for it.

[83]MR PATEL: My Lord, I am sorry to delay you further. For the purposes of my learned friend and I, order for release, declaration --

LORD JUSTICE AULD: The conditional order suggested by my Lord.

[85]MR PATEL: Damages to be referred to the Queen's Bench masters.

MR JUSTICE COLLINS: No, Queen's Bench division.

[87]MR PATEL: Sorry. Then the usual order for costs.

[88]MR SOUTHEY: I think my learned friend just missed the mandatory order.

[89]MR PATEL: No, that was the first one.

MR JUSTICE COLLINS: He said that.

LORD JUSTICE AULD: Perhaps after it has been drawn up I think let Collins J and myself have a copy of it.

[92]MR PATEL: My Lord, sorry I am --

LORD JUSTICE AULD: The associate is helpfully well on the way for at least a working draft for both of you to consider very swiftly. There are reasons why it needs to be done in the next 15 minutes. Now, Mr Patel.

[94]MR PATEL: My Lord, that is probably the query I had which is that, given the time, the Prison Service is obviously on notice.

LORD JUSTICE AULD: If everybody stands down now we have 15 minutes.

[96]MR JUSTICE COLLINS: It may be, Mr Southey, that it would not actually be particularly in the interests of your client to release him in the next 15 minutes. It might be more sensible to give him advance warning so that some arrangements are made and he can be released tomorrow. Because there are obviously problems, he has abuse problems and so on. It would surely be more desirable that some release arrangements were made.

[97]MR SOUTHEY: My instructing solicitor can see the force in that. Although he has an address to go to, we understand, it is one where he will need to give notice.

LORD JUSTICE AULD: I would have thought another night will not be too severe.

[99]MR SOUTHEY: No. The other thing I would ask is, we obviously have difficulties communicating into prison --

[100]MR JUSTICE COLLINS: He will be notified, I hope, that this has happened and arrangements will be made for his release tomorrow.

LORD JUSTICE AULD: Even so, on tomorrow's basis, Mr Southey, we need to rise quickly and let the associate do what is necessary. Thank you both for your assistance, and those behind you. You have been immensely helpful and it was a very interesting point.