Lee & Anor, R (on the application of) v Secretary of State for Justice [2008] EWHC 2326 (Admin)

CO/1981/2008 and CO/5310/2008[2008] EWHC 2326 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 25 July 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
Between
THE QUEEN ON THE APPLICATION OF JEFFREY LEEClaimantand NICHOLAS WELLSClaimantv
Between
THE SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR T OWEN QC and MR N ARMSTRONG (instructed by Stephensons/Russell and Russell) appeared for ClaimantMS N LIEVEN QC and MR S KOVATS (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T

LORD JUSTICE MOSES:

In

[1]both these applications, serving prisoners subject to indeterminate sentences for public protection, "IPPs", under the unamended terms of section 225 of the Criminal Justice Act 2003, claim that their continuing detention is unlawful and infringes their right to liberty enshrined in article 5(1). In both their cases, their notional minimum terms were less than two years. The 2003 Act was amended with effect from 14 July 2008, and neither of these two prisoners could now be sentenced to an IPP.[2]Their cases highlight the fundamental difficulty inherent in IPP sentences where short minimum terms have been imposed. That difficulty has now been recognised by the amendment to the law. That fundamental difficulty was the failure to ensure that there were in place methods not only of timely assessment as to whether a prisoner remained dangerous, but also systems, such as accredited courses which would enable a prisoner to reduce or extinguish his level of dangerousness and to demonstrate that he had done so to the satisfaction of the Parole Board.[3]These difficulties, and the consequential infringement of a prisoner's rights under article 5(4) of the European Convention on Human Rights (the Convention) were acknowledged in the Court of Appeal in the Secretary of State for Justice v Walker [2008] EWCA Civ 30. They led to an infringment of one of the prisoners', Walker's rights under article 5(4) (see paragraph 70). But the court left open the possibility that there may be a case in which so long a period between the imposition of the original sentence without review and the continued detention without review might be viewed as arbitrary and no longer capable of justification under article 5(1)(a). In such circumstances, the detention would be a breach of the prisoner's rights under article 5(1) and unlawful. These applicants found their cases on that acceptance by the Court of Appeal that there may be cases where, notwithstanding the lawfulness of the original imposition of the sentence, the detention has become disproportionate and arbitrary (see paragraph 69).[4]The statutory scheme was identified in the Court of Appeal between paragraphs 3 to 11. Those provisions are relevant to the cases before this court, but I must now record that by section 225(3B), save in respect of certain specified offences, the notional minimum term must be at least two years. That means that the crime must merit a determinate sentence of at least four years.[5]The claimant Lee was ordered to serve, on 2 September 2005, an IPP with a minimum term of 163 days after he had pleaded guilty to offences of burglary with intent to commit unlawful damage, criminal damage and common assault. The claimant Wells was ordered to serve an IPP with a minimum term of 370 days on 14 November 2005 to be served consecutively to an earlier extended sentence for attempted robbery of a taxi driver together with an offence of possession of a class B drug. Article 5(1) of the Convention provides:
"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 the procedure prescribed by law. "(a) the lawful detention of a person after conviction by a competent court."
[6]Article 5(4), a breach of which is conceded in the case of Lee but remains in dispute in the case of Wells, 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."
[7]The Court of Appeal in Walker heralded the possibility of establishing a breach of article 5(1) after what is described as a very lengthy period had elapsed from the time of the original sentence without a review; detention might become arbitrary and no longer capable of justification (see paragraphs 61, 69 and 72). The mere repetition of the words "disproportionate" and "arbitrary" as a means of describing those cases which will constitute a breach of article 5(1) provide, however, no standard against which to measure the lawfulness of any continued detention. The proposition that the link, between an original sentence which is itself lawful and continuing detention, may be broken, derives from the jurisprudence of the European Court of Human Rights. In Van Droogenbroeck v Belgium (7906/77) 24 June 1982, the court explained what it meant by the arbitrary deprivation of liberty where detention was lawful at the outset. It said: "The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives." (See paragraph 40).[8]In Weeks v United Kingdom [1987] 10 EHRR 293, the court explained that the causal link between the original sentence and the continuing detention might be broken: "... if a position were reached in which a decision not to release [...] was based on grounds that were inconsistent with the objectives of the sentencing court." (See paragraph 49).[9]More recently, in the case of Saadi v United Kingdom (13229/03) 29 January 2008, the court repeated that the condition that there be no arbitrariness demands: "... that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant subparagraph of article 5(1)." (See paragraph 69).[10]Thus it is essential to identify the objectives which were sought to be achieved by the original imposition of the IPP. The primary objective is to protect the public and not to rehabilitate (see paragraph 69 of Walker) but, though that is the primary objective, that is by no means the sole purpose of the sentence. There is to be derived as corollaries from that primary objective the purpose that no prisoner is to be detained beyond the tariff period in circumstances where he is judged by regular review no longer to be a danger. If the purpose is to protect the public, that purpose can no longer be pursued where he is judged under the statutory scheme by the Parole Board that he is no longer to be a danger. Further, that purpose itself carries with it the correlative purpose endorsed by the Court of Appeal in its support of that which fell from Laws LJ at first instance, that the statutory scheme was designed to make available to IPP prisoners a regime by which they would be given a fair chance of ceasing to be and showing that they had ceased to be dangerous (see paragraph 41).[11]That it was a purpose of the legislation to permit release once it was shown, post-tariff, that a prisoner is no longer a danger, was apparent from that judgment of Laws LJ at first instance as approved by the Court of Appeal (see in particular the references by Laws LJ to the policy underlying the statute at paragraphs 24 to 26). At the time that the 2003 Act was passed, he says: "Procedures would be put in place to ensure that initiatives, in particular courses in the prison, would be available to maximise the opportunity for lifers to demonstrate that they were no longer a danger to the public by the time their tariff expired or as soon as possible thereafter, so as to allow the lifer's release once that was shown." (See paragraph 26).[12]Laws LJ explained that purpose in the context of the cases before him at paragraph 46. After dealing with the justification for the original detention, he continues:
"By contrast, the justification that is required for his detention after the tariff's expiry as the preventative element begins and continues is of an altogether different character. This further detention is not at all justified by or at the time of sentence for the very reason that the extent to which or the time for which the prisoner will remain a danger is unknown at the time of sentence. It can only be ascertained on a continuing basis by periodic assessment. Nothing else can justify this further detention."
He continues:
"Reducing the risk opposed by lifers must be inherent in the legislation's purpose, since otherwise the statutes would be indifferent to the imperative that treats imprisonment strictly and always as a last resort. Whether or not the prisoner ceases to present a danger cannot be a neutral consideration in statute or policy. If it were, we would forgo any claim to a rational and humane and efficient prison regime, thus the existence of measures to allow and encourage the IPP prisoner to progress is as inherent in the justification for his continued detention as are the Parole Board reviews themselves, and without them, that detention falls to be condemned as unlawful as surely as if there were no such reviews."
[13]The Court of Appeal concluded that Laws LJ went too far in his determination that, absent the measures he describes, continued detention would necessarily be unlawful, but it did not in any way disagree with Laws LJ's exposition and identification of the underlying purpose of the legislation (see in particular paragraph 66 of the Court of Appeal's decision).[14]The Court of Appeal adopted the proposition that mere delay will not break the link between the original and continued detention (see paragraph 61), particularly in its endorsement of the decision of the Court of Appeal in R (Noorkoiv) v Secretary of State [2002] 1 WLR 3284, EWCA Civ 770, but I should recall that the Court of Appeal also referred to the important judgment of Arden LJ in Cawser.[15]In that case Arden LJ disagreed with Simon Brown LJ and Laws LJ as to the correct approach in a case where it was said that the Secretary of State had been irrational in depriving a sex offender of appropriate sex treatment programmes. She took the view that the case ought to be focused rather upon the question as to whether the causal link between the original sentence and continued detention had been broken, and thus should be regarded as unlawful for the purposes of article 5(1). She said: "... in a very exceptional case the failure by the Secretary of State to provide a particular prisoner with an appropriate treatment course, which in practice is a condition of release, may, if sufficiently prolonged, break that causal link and render the detention unlawful." (See paragraph 47 and see also paragraph 48).[16]The Court of Appeal in Walker accepted that proposition analogous to the established principle that the Secretary of State has a duty to act in accordance with the relevant statutory regime, (see its reference to Padfield v Ministry of Agriculture [1968] AC 997 (see paragraph 41)).[17]The objectives of the statutory scheme may thus be identified as primarily to protect the public from a prisoner identified as being dangerous when the original sentence is imposed, but also as being to give him a fair chance of ceasing to be dangerous and of demonstrating that he has ceased to be dangerous.[18]It is important to recall that those objectives carry with them the acceptance that there can be no assumption that, although a prisoner has been regarded as dangerous at the time when the original sentence has been imposed, he will remain dangerous throughout his time in prison. At paragraph 47 of his judgment at first instance in Walker, Laws LJ said this:
"When sentence is passed it is not to be presumed against the prisoner that he will still be dangerous after his tariff expires, let alone months or years later. He may or may not be. Whether he is or not, and therefore whether his continuing incarceration is justified or not, can only be determined by reference to up-to-date (at the very least reasonably up-to-date) information enabling the decision-maker, the Parole Board, to form a view of the question of risk in his case."
[19]This proposition must of course not be carried too far. The time which had passed between the original determination when the sentence is imposed and the continued detention may be such that it is a justifiable conclusion that a prisoner remains a danger. Alternatively, his behaviour in prison may provide ample justification for such a conclusion, but that passage in the judgment of Laws LJ is important as a reminder that no assumption can necessarily be drawn that because a prisoner was once dangerous he remains so.[20]It is, also, important to stress that the primary justification for a prisoner's detention is that he represents a danger to the public. That founds an important proposition established by the decision of the Court of Appeal in Walker that the mere failure to provide course work will not by itself establish a breach of article 5(1). It is important to recognise that principle. Were it otherwise, cases such as Cawser, Noorkoiv or Walker itself would themselves have established a breach of article 5(1) but, in all those cases, the prisoners failed to do so.[21]It is important to appreciate why that is so. The very reason why that is so is that the primary justification for a prisoner's detention under sentences of this kind is that he is a danger, and those tasked with the responsibility of assessing that danger as the Parole Board under section 28(6) of the Crime (Sentences) Act 1997. Accordingly, if the Parole Board is in a position to judge that the prisoner remains a danger, it cannot direct his release, even if the reason it reaches its conclusion is through no fault of the prisoner's own, but rather because the Secretary of State has deprived him of the opportunity of reducing his level of dangerousness or of demonstrating that he has ceased to be a danger. In circumstances where the Parole Board is entitled on the material before it to reach a conclusion that the prisoner remains a danger, there can be no breach of article 5(1). The primary objective and rationale for his continued detention remains.[22]But this position must be contrasted with one where, by reason of the lack of course work, the Parole Board cannot determine the level of dangerousness. In such circumstances, the prisoner is not to be assumed to have remained a danger. If the Parole Board cannot determine the issue and it is no longer known whether the prisoner continues to be a danger or not, the justification for continuing to detain him no longer exists, and there will be a breach of article 5(1). The position of a prisoner whose level of dangerousness cannot be ascertained is the same as one who ceases to be a danger. The original justification for the sentence, namely his dangerousness, has ceased to exist.[23]The answer to the instant cases and many cases like them lies in drawing a distinction between those cases where it cannot be ascertained whether the prisoner is a danger or not and those cases where he can be judged to remain a danger, notwithstanding the failures to provide him with the opportunity to reduce or to eliminate the level of danger and of showing that he has done so. But in making that decision, it is important to recognise that the court is not in the position of the Parole Board to reach a judgment on which side of the line the case falls. The Parole Board will have available many sources of information which it can deploy in order to be satisfied, as it must be, before it directs release, that the prisoner is no longer a danger.[24]This court must also acknowledge that the Parole Board may itself have to decide the same question as this court in a judicial review such as this. If the Board is not in a position to know whether the prisoner is a danger or not, then it could not, for the purposes of section 28(6), be satisfied that it is no longer necessary for the protection of the public that he should be confined.[25]Thus, before this court, there would have to be clear evidence that the failure to provide the opportunity of going on courses and of being assessed with up-to-date information has led to a situation that it can safely be concluded either that the prisoner is not a danger or that it cannot be ascertained whether it is a danger or not.[26]This court must always bear in mind that, as I shall explain shortly, in considering the question whether the level of the danger can be ascertained, the court is doing so for a totally different legal purpose than that for which the Parole Board may be considering the same question.[27]Before this court there appeared a long and full statement from the Chief Operating Officer of the National Offender Management Service, Mr Michael Spurr. This was helpful and illuminating for the purpose of elucidating the problems and the ways that service is now seeking to eliminate them for the future. The full statement, which merits study, is a graphic demonstration of the dedication of those in the Prison Service and allied to the Prison Service seeking to help prisoners in the difficulties imposed upon them and all those working in the Service by the unthinking introduction of a regime which had inherent within it the impracticability of achieving the objectives that that statutory regime was designed to fulfil. But the fact that there is hope for the future is no comfort to those balked by the failures of the past.[28]I would have had to consider at this point of my judgment the facts in relation to the particular prisoner Mr Lee, but I decline to do so at this stage in the context that there has been a very serious failure to provide him with the necessary courses such as to amount to an acknowledged breach of article 5(4). But today he appears before the Parole Board for the purpose of their assessment as to whether they are satisfied he no longer constitutes a danger to the public. I was told just before giving this ex tempore judgment that further material has been adduced, and until all the parties to this application have had an opportunity of considering that, I should reach no further conclusion in relation to the prisoner Lee.[29]So far as Mr Wells is concerned, he, as I have said, is detained under an IPP with a minimum term of 307 days. He was then aged 22. His offending, it is agreed, is linked to misuse of alcohol and drugs. Previous short custodial sentences had given him little opportunity to complete courses which would enable him to change his attitude and offending behaviour. His tariff expired on 17 September 2006. Prior to then a report had recommended that he engage in a number of accredited courses, but no such opportunity presented itself to him and, on the Parole Board's concession, Sullivan J made a declaration in April 2007 that his rights enshrined in article 5(4) had been violated.[30]He was, following a hearing, retained in custody on the basis that in the absence of course work he was unable to demonstrate a reduction in risk. That has continued. He has been given targets of assessment under a variety of accredited courses, but has not yet been given the time or the opportunity to undergo those courses. This is not surprising when one reads Mr Spurr's statement as to the disastrous consequences of introducing this regime without the necessary support so that it could achieve its objectives. It was not foreseen how many indeterminate sentences would carry with them notional determinate sentences of less than 24 months. Statistics of the position before 30 March 2008 reveal that, of all those given such a sentence, 23 per cent were given a tariff of 12 months or less, and 59 per cent a tariff of 13 to 24 months. It is thus apparent that the amendment will substantially remove from the regime those who had hitherto been subjected to it.[31]None of that is of any comfort to Mr Wells. The evidence shows that Mr Wells has been frustrated by the lack of progress which was inevitable following the loss of opportunity to go on those courses which he sought to attend. It is dispiriting to record that position when one appreciates that he is still a very young man and was only 22 when the sentence was originally passed. But the fact of the matter remains that the evidence before this court is that on assessment he remains at risk of reconviction, a risk assessed as high/medium with some risk of violent offences. Until he undergoes the accredited work, his past, coupled with his prison behaviour, affords what is described as an indication of the nature of the ongoing risk. It requires no imagination to appreciate that the frustration which has led to his bad behaviour in prison has no doubt been aggravated by the fact that he has been unable to undergo the necessary programmes of work. But that of itself does not break the link between the purpose for which the original sentence was passed and his continuing detention. There is no basis for saying that the current level of dangerousness cannot be ascertained, and, in those circumstances, no basis for saying that the link between the original sentence and his continued detention has been broken.[32]In those circumstances, in his case I reject the submission that his continued detention establishes a breach of article 5(1).[33]But I cannot leave his case, still less the case of Mr Lee which I will have to determine when further information is available, without these further comments. As Mr Owen QC has revealed, the recent courses which Mr Lee appears to have undertaken, and the greater opportunity Mr Wells now has, so it is said, to undergo these accredited courses, is a response, as it appears, to these proceedings. There has been a flurry of activity triggered by these applications. But Mr Owen QC and his team are understandably concerned, as everybody should be, for other prisoners in a similar situation. These are but two prisoners; there are many more. I was alarmed to be told that there is not available to other prisoners resources from the Legal Services Commission to bring their cases to this court because the Commission apparently takes the view that it must await the result of these two cases. But I ask the question, knowing I will not have an answer from them today, how can these two cases assist? As the Secretary of State submits, each case must turn on its own facts. It is impossible to decide the all-important question as to whether the level of dangerousness cannot be ascertained, and thus the justification for continued detention ceases, without reference to specific facts. Yet there may well be cases within the system where it simply cannot be ascertained what the level of danger of the prisoner is, which have not been brought to the attention of the court because those prisoners have been deprived of funding. That is a very serious state of affairs which the mere lack of resources cannot excuse. If those cases exist, it means there are prisoners who are detained at present under the regime and within prisons whose detention cannot be justified.[34]The conclusion that I have reached in the case of Wells, that he has not established a breach of article 5(1), means that I do not in his case have to determine the interesting and important question as to what would have to be done had I reached a different conclusion. It is suggested, as it was by the Court of Appeal in Walker, that there would have to be a remedy beyond a declaration of incompatibility. There would, understandably, be insuperable difficulties in requiring the Parole Board to act contrary to the test identified in section 28(6), and the helpful intervention of the Parole Board through Mr Squires in the instant case has made that proposition good. There may also be difficulties in adding on the prerogative of mercy to a tight statutory regime. In any event, why should mercy, still less compassion, pursuant to section 30 of the Crime (Sentences) Act 1997, have anything to do with the question whether a prisoner is entitled no longer to be detained? If he is detained unlawfully, his release should not be the result of mercy or compassion, but of plain justice. Habeas corpus represents an obvious remedy where the original warrant for his detention no longer affords justification for his continued incarceration, but the problem with such a remedy is that the prisoner would then no longer be subject to the conditions of licence necessary not only for the protection of the public, but for his own assistance and progress within the community.[35]Thus there are difficulties which should not be insoluble, but I shall only restrain myself from the temptation to reach a conclusion in the knowledge that anything I say will not be of any binding use in the future.[36]There remains a claim by Mr Wells of a breach of article 5(4). Notwithstanding the declaration of Sullivan J, it is contended that Mr Wells has been deprived of the opportunity of going to the appropriate prison to receive the courses that he is advised to attend, and in any event has not yet had the opportunity to obtain the benefit of those courses. The answer given by the Secretary of State has been that his own behaviour has led to his not going on those courses, since that behaviour has led to the fact that he could not be transferred to other prisons. As I have already indicated, the frustration that has led to that poor behaviour is clearly attributable, at least in part, to the fact that the courses which he should have attended have not been available. Had he been able to go on these accredited courses, which he has clearly shown he is motivated and enthusiastic to attend, no doubt his behaviour would have been much less reprehensible.[37]In those circumstances, I am persuaded that the continuing failure, following the declaration of Sullivan J, amounts to a breach of article 5(4) in his case.[38]MR OWEN: I am obliged. On Mr Wells's case, I am not applying for permission to appeal today. Could I reflect on it, and if we seek it, to put on paper.

LORD JUSTICE MOSES: Yes. Let me know.

[40]I am going to proceed to judgment in the case of Lee, and if something changes, there is a very good ground for appeal.[41]MR OWEN: Yes. My Lord, I have no objection to that.

LORD JUSTICE MOSES: As I indicated, it appeared when I was about to give judgment in relation to particular facts concerning Lee that further information had been provided to the Parole Board who are at this very moment considering his case. Now that both the Secretary of State for Justice and counsel for Mr Lee have seen that further information, both, at least on a preliminary view, take the view that that matter is not carried forward, and I therefore propose to continue with my judgment in relation to his case.

[43]As I have indicated, it is accepted that the very serious failure to provide those courses which he should have attended not only to reduce his level of dangerousness but to demonstrate that he had done so, have not been available to him. I should also recall that he would not now have ever been sentenced to IPP under the new regime. The question now, however, is whether it can be ascertained that he remains or does not remain dangerous. The reports available show a dramatic change in his attitude and in his character. He has, it is no exaggeration, proved a model prisoner. He has, as the external probation officer recalls, been very disappointed that he has not attended those courses which he ought to attend and, so the external probation officer says, his current risk level "could be more readily assessed through the review of his performance during one or other of the above accredited programmes". The other reports laid before him show a reduced score of a medium risk under the OASYS system. There are other comments that he has come to terms with the severance of his relationship with his former wife which had led to the original offences.[44]There is, therefore, ample material to suggest that he is not a danger, but I have to remind myself that that assessment is the function of the Parole Board, and not of this court. It is that reminder which Ms Lieven QC, on behalf of the Secretary of State, suggested should lead to my refraining from reaching any conclusion because, on this very day, the Parole Board is considering the question under section 28(6) whether it is satisfied that Lee's continued detention is not necessary because he no longer represents a danger to the public.[45]This submission, in my view, fails to recognise an important distinction. Of course it is for the Parole Board to determine whether he remains a danger or not, and it is also important, as I have already indicated, that this court recognises that the Parole Board itself might say that it does not know whether he remains a danger or not, and thus cannot be satisfied for the purposes of section 28(6). But this court is required to determine a quite distinct question, namely whether the continued detention of Lee is lawful. It cannot defer that question to the Parole Board. This court must thus determine, on the evidence before this court, whether this is a case where the evidence shows that, by reason of the failures in the system, it is not possible to determine whether he is dangerous or not. I appreciate that there will be an overlap evidentially: the Parole Board may not be satisfied because of absence of material, of the conditions which alone permit release for the purposes of section 28(5). But that evidential overlap should not deflect this court from determining the different question as to whether the continued detention can no longer be justified by the original decision that the prisoner was dangerous.[46]In Lee's case, there is, as I have said, much material to show a recognisable difference in the level of danger from that which pertained when he was originally sentenced. But that is not an end of the matter. There has been laid before the court material from a forensic psychologist in training based at Her Majesty's Prison Wymott. That psychologist has reached the conclusion that there are areas relevant to Mr Lee's risk of committing violence within the domestic context in the future which, as she puts it, need to be targeted, and until those matters have been "targeted", she takes the view that the overall risk of domestic violence is medium to high (see paragraph 7.44). Given that conclusion which she repeats at 11.4, she recommends further treatment under an accredited programme known as the Healthy Relations Programme in closed conditions. It will be for the Parole Board to say whether it agrees with that conclusion, and the hearing before the Parole Board will no doubt permit not only that conclusion to be challenged, but also the process by which she reached that conclusion. That process is challenged by Mr Owen before this court. He says that the report read as a whole reveals a process of assumption and possibility which offends the very principle to which I have already drawn attention, enunciated by Laws LJ at first instance in Walker, namely that there should be no assumption of continuing danger where substantial time has elapsed from the original sentence. Those seem to me to be facts to be considered by the Parole Board and, as I understand it, it is considering it today. As I am told via the silent Blackberry as I am giving judgment, it is still going on at this moment.[47]All of that leads to my conclusion that it is not possible on the material before me to say that it cannot be ascertained whether Mr Lee remains a danger or not, and thus the causal link between the original sentence and his continuing detention has been broken. In those circumstances, I decline to find in his case also a breach of article 5(1).[48]MR OWEN: My Lord, on Mr Lee's case, again, could I defer an application for permission to appeal?

LORD JUSTICE MOSES: Yes.

[50]MR OWEN: I think we will be making such an application, but it may be better to do that with knowledge of whatever the Board decides.

LORD JUSTICE MOSES: When will you get it? They may reserve. Some of them reserve, do they not?

[52]MR OWEN: I think the obligation is within seven days, but it may be at the end of today we are better informed.

LORD JUSTICE MOSES: Anyway, you have -- I mean, the time limit is going to expire by the end of term. What are you asking me to say today?

[54]MR OWEN: Well, I could ask you today, I suppose. It is a question of whether we are better informed. The basis for the application would be this, that I did invite my Lord to --

LORD JUSTICE MOSES: Well, I am perfectly happy to give permission to appeal in his case, now.

[56]MS LIEVEN: That is an easier way, my Lord.

LORD JUSTICE MOSES: It does seem -- let us wait and see. It may be that you just will not need to, but --

[58]MR OWEN: Yes. The reason is that of course it does throw up the difficulty that the flurry of activity produced by the report, and one never gets into the situation --

LORD JUSTICE MOSES: The last thing one wants is this case to provide some impediment to some other case.

[60]MR OWEN: My Lord, I am grateful for that. Could I deal with costs in Wells. We sought declarations of 5(1) and 5(4). The factual basis --

LORD JUSTICE MOSES: Well, since you have lost, should I not hear from Ms Lieven first?

[62]MR OWEN: Well, we won on 5(4).

LORD JUSTICE MOSES: You have won on 5(4), yes. Sorry, Ms Lieven.

[64]MS LIEVEN: We have probably won rather more but I will let Mr Owen go first.

LORD JUSTICE MOSES: Let him go first and then you respond.

[66]MR OWEN: The finding reached on 5(4) was potentially as significant as a finding of 5(1) for Mr Wells. The facts are identical (inaudible) and the fact that the Secretary of State resisted both 5(4) and 5(1), it makes a difference in terms of the fact that (inaudible) it is not one of these silly applications that really makes no difference. It actually does make a difference to the way the matter is remunerated, and I make the application because we have succeeded in securing what could potentially be an important point.

LORD JUSTICE MOSES: What is the order you are asking for? Because you have lost on the other issues.

[68]MR OWEN: We have lost factually on 5(1) on his case, but we have succeeded on a further finding of 5(4).

LORD JUSTICE MOSES: What is the order of costs you are asking for?

[70]MR OWEN: I am asking that the Secretary of State pay the costs of Mr Wells's application.

LORD JUSTICE MOSES: Supposing I do not think you should have all your costs?

[72]MR OWEN: Then I ask for what you consider is a fair proportion.

LORD JUSTICE MOSES: Then how will that entrench on the Legal Aid situation?

[74]MR OWEN: I am told these matters do make a difference.

LORD JUSTICE MOSES: I can see if you got all your costs it would. I find it more difficult if you got some of them.

[76]MR OWEN: The reason is that the Special Cases Unit in Brighton who control (inaudible) decided to group the two together and subject it to (inaudible) so we are on at-risk rates which are massively different as a result of the decision to link them together. When the costs go above £25,000, everybody is subject to risk rates. The effect of combining the two together means that bearing in mind the cases may proceed differently, with Mr Lee going on appeal and Mr Wells not, there may be implications.

LORD JUSTICE MOSES: Yes.

[78]MS LIEVEN: My Lord, if one just starts from the basic first principles on the costs, on Lee we won. On Wells we won 5(1), we lost 5(4), but in my submission Mr Owen is completely unrealistic to suggest that the implications are the same. This case in truth has always been about 5(1) and the implications for Mr Wells are potentially completely different. That is why we had an argument yesterday about habeas corpus. We won on article 5(1) (inaudible).

LORD JUSTICE MOSES: 5(4) is going to mean that he is going to have a better opportunity of getting courses, is it not?

[80]MS LIEVEN: Yes. My Lord, I am not saying 5(4) does not have some significance, but the two are clearly very different. In my submission, taking them both together in trying to reach a fair conclusion, the fair conclusion is no order, because if my learned friend was not legally aided, then we would be clearly entitled to at least 50 per cent of our costs on Wells, and all our costs on Lee. I am not asking for a football pools order here, it seems to be ponderous and inappropriate, but in my submission it would be quite wrong, effectively because my learned friend is legally aided, to make the Secretary of State pay costs in circumstances where otherwise it would be inconceivable. So in my submission, no order is the fair solution here.

LORD JUSTICE MOSES: Yes. Thank you. Yes, Mr Owen.

[82]MR OWEN: I have nothing to add on that.

LORD JUSTICE MOSES: These are very important cases, and I am most oppressed that there should be any suggestion that costs should somehow be cut down by the Legal Services Commission. In this case it is one of fundamental liberties. Still, there we are. But I do think the right order is no order as to costs, but I just hope that the Legal Services Commission, somebody there -- I just wish they were here. I mean, these are fundamental cases. That is why we have legal systems. It is very depressing.

[84]MR OWEN: Those remarks will be passed on.

LORD JUSTICE MOSES: Nobody takes any notice of what I say. Anyway --

[86]MR OWEN: Public funding assessment or detailed assessment of public funding --

LORD JUSTICE MOSES: -- anyway, they are really important, these cases.

[88]MR OWEN: I think I need a public funding assessment for both Lee and Wells.

LORD JUSTICE MOSES: Yes, you may have those.

[90]MR OWEN: I am grateful.

LORD JUSTICE MOSES: Thank you very much. So far as drawing out the order, could somebody do that, an agreed order for the associate.

[92]MR OWEN: Yes.[93]MS LIEVEN: Yes.

LORD JUSTICE MOSES: She is holding her finger up, which means I think I cannot go yet.

[95]MS LIEVEN: Yes. Mr Kovats raises the point; as your Lordship has granted permission to appeal on Lee, would it be sensible to grant permission to appeal on Wells as well, so there does not have to be a separate application?

LORD JUSTICE MOSES: I think not. I really think they are very different cases. Well, would it be simpler if I did?

[97]MR OWEN: Well, I suppose it would be simpler in one sense, yes, if the matter is to be pursued.[98]MS LIEVEN: It does not mean Mr Owen has to pursue it. It is just to save us all rushing around.

LORD JUSTICE MOSES: Well, I will say permission in both.

[100]MR OWEN: Yes, my Lord, I am grateful.

LORD JUSTICE MOSES: Thank you very much.

Cited in 3 later judgments