Bayliss, R (on the application of) v The Parole Board & Anor [2008] EWHC 3127 (Admin)

[2008] EWHC 3127 (Admin)Case No CO/9561/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 13th November 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF LEE BAYLISSClaimantv
Between
THE PAROLE BOARDDefendantSECRETARY 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)
Phillip Rule (instructed by Pickup & Jarvis) appeared for ClaimantDaniel Squires (instructed by the Treasury Solicitor) appeared for First DefendantSteven Kovats (instructed by the Treasury Solicitor) appeared for Second Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: The Criminal Justice Act 2003 introduced provisions for sentencing dangerous offenders to imprisonment for public protection, which means that they have no automatic right to be released. They came into effect in 2005 and replaced earlier measures in the Powers of Criminal Courts (Sentencing) Act 2000 for the imposition of longer-than-commensurate determinate custodial sentences on offenders convicted of violence offences or sexual offences, and from whom it was necessary to protect the public from serious harm. This application for judicial review and habeas corpus raises the question of how the Parole Board should treat those who have been subject to a sentence of imprisonment for public protection. In essence, the challenge is to the test used by the Parole Board for releasing such prisoners on licence and whether, applying that test in this particular case, the Parole Board erred in law. Background[2]The claimant in this case was sentenced in June 2006 to imprisonment for public protection for causing death by dangerous driving. He had been in a stolen vehicle on his way to purchase drugs. His driving was such as to cause the unintentional death of his longtime girlfriend. He pleaded guilty. There was no separate penalty imposed for offences of aggravated vehicle taking and driving whilst disqualified. At Oxford Crown Court His Honour

Judge Hall said:

"This was a dreadful bit of driving. You killed your best friend but you killed her in circumstances where the way you were driving was patently obviously dangerous. That road is single-carriageway; it narrows; there are ample signs to tell you to slow down and there is an extremely obvious T junction with a brick wall facing you. No-one approaching that junction could have had any doubt at all that there was no way of going straight on. You started to brake only 30 yards before and there are tyre marks from there up to the moment of side impact, which was so severe that it left the car in the sort of condition that we see in the photographs, and your friend dead. It was not your car."
The learned judge went on to observe the record of the claimant, that he had 39 convictions for 108 offences, these involving dishonesty, motoring offences and breaches of various court orders. He highlighted that the claimant had been disqualified from driving 16 times, usually at the wheel of someone else's car, and that in 1997 he had been convicted of dangerous driving after a police chase. The learned judge went on to say:
"I am of the opinion that I think that there is a significant risk to members of the public of serious harm if you were to commit further specified offences. Well I think there is. It is as simple as that. The risk of people being killed on the road, in a car chase with someone in somebody else's car, driving whilst disqualified, is significant in your case."
The learned judge imposed a minimum period of 4 years, which meant that the claimant's tariff expired in April of this year.[3]Whilst in custody, the claimant has been subject to various assessments. First, there are two OASys assessments. OASys assessments are widely used in the criminal justice system and accepted as a tool for risk assessment of those convicted of offences. The assessments in relation to the claimant were dated July 2006 and June 2007. The assessments identified those at risk from the claimant as members of the public, other road users and passengers, if he were to be driving. The nature of the risk was identified as road traffic accidents and the death of a person. The risk was likely to be greatest, said the OASys reports, if the claimant had relapsed into drug misuse and was driving to obtain drugs, driving illegally or driving under the influence of alcohol. Circumstances likely to increase the risk were said to be the need to obtain drugs, or if the claimant were under the influence of alcohol. Chosen as factors likely to reduce the risk were the claimant refraining from driving, addressing his drug and alcohol misuse, being aware of victims and improving his thinking skills. The OASys assessors then categorised the claimant in relation to the likelihood of his causing serious harm, including harm to others. This categorisation relates to imminent release back into the community. Four categories are used: low, medium, high and very high. For our purposes only two are relevant. Medium is defined as the offender having the potential to cause serious harm but being unlikely to do so unless there is a change in circumstances, for example, in our case, drug or alcohol misuse. The high category is defined as the potential harm happening at any time and the impact being serious. Whereas the July 2006 assessment had been that there was a high risk of harm to the public in the community, the June 2007 assessment had reduced that to a medium risk of such harm. In both OASys assessments, however, the claimant was regarded as having a high risk of re-conviction.[4]In addition to the OASys assessments, various reports were prepared within the prison. The wing report, which is dated 6th December 2007, remarked that the claimant was an enhanced prisoner who was currently employed in the stores. That is a trusted position. The writer of the report went on to comment that the claimant's conduct was of a good, high standard. He was always polite, helpful and respectful. He was complying with his sentence plan and had recently successfully completed an enhanced thinking skills programme. He had no history of escape and he had a positive attitude to his sentence. He was now a spur representative.[5]In her report, dated 29th February 2008, the claimant's lifer manager said that the claimant had completed his enhanced thinking skills course with good reports and had recently completed the Sycamore Project, which is a victim awareness programme. At that time he was awaiting a report about the latter. He had also, she said, been assessed as suitable for a RAPt programme, the programme designed for prisoners to address their substance misuse. The report writer noted that the claimant was "very realistic in that he may be confined to closed conditions for further work and he will not hesitate to begin the RAPt course." She concluded her report by saying that she would like him to complete the RAPt programme, either in custody or in open conditions.[6]The claimant's personal officer in prison, in a report dated 27th October 2007, recited that the claimant had had only one adjudication, which was for the possession of unauthorised drugs, to which he had pleaded guilty in January 2007. It noted the courses he had attended, which in the report writer's view had all helped in his current mindset. He got on well with staff and was always polite, friendly and respectful.[7]There were also reports prepared by two probation officers. The internal probation officer, in a report dated 6th February 2008, commented that the claimant was at a high risk of re-conviction, a medium risk of harm to the public, and a low risk of harm to children, known adults and staff. The report went on to note the programmes which the claimant had undertaken, commented that feedback from those programmes had been positive and also recorded that the claimant had participated in voluntary and mandatory drug tests. The majority of those tests had been negative. The conclusion was:
"The lack of a firm risk management plan by his offender manager makes it difficult for me to recommend him for release on parole at this stage."
The external probation officer, in his report of 19th December 2007, said that the claimant had considerably entrenched offending behaviour and it would be optimistic to expect him not to resort again to criminality. The conclusion of the report was that it could be considered that were he to participate in the RAPt programme his ability to abstain from illegal drugs would be enhanced.[8]All these reports went before a hearing of the Parole Board on 7th July 2008. At the Board the claimant was represented by Mr Rule of counsel, who also represented him in this application. There was oral evidence from the claimant and from the two probation officers. The Parole Board issued it decision letter on 9th July. In its opening paragraph, the letter observed that it was "not satisfied that it was not longer necessary for the protection of public that you be confined" and had therefore not directed his release. It went on to declare that it was not making any recommendation for transfer to open conditions. The decision then recounted the background to the index offence, the record of the claimant and recalled in paragraph 5 that the claimant had recognised the deleterious effects of drug abuse on his life. Unfortunately, the decision noted, he had received an adjudication for possession of controlled substances in January 2007, before he undertook a short duration programme which was the first step towards treatment. The decision went on to record the courses which the claimant had undertaken and recalled that while the 2006 OASys assessment score had indicated a high risk, that had been reduced to medium by the time of the second OASys assessment in 2007. The decision then recorded the oral evidence, said that from that evidence the Parole Board was satisfied that the root of the claimant's offending had been his addiction to illicit drugs and that he had recognised the need to undertake the RAPt course to address the problem. The Board reasoned that this work needed to be successfully completed in closed conditions before further progress could be considered notwithstanding, it said, his evident ambivalence regarding the commencement of the work. The fact that the work needed to be completed in closed conditions was supported, the Board noted, by both probation officers. The decision then rounded off with paragraph 8:
"For our part, we require to be satisfied that the level of risk of serious harm from re-offending is reduced to a level consistent with open conditions or release. We appreciate that there is not a present risk of violent or sexual offending. At present, however, and without formal assessment of risks and their reduction we are obliged to have regard to the OASys assessment of risk which indicates an incompatibility with either course."
[9]This judicial review was initiated in October 2008. The challenge was said to be the unlawful refusal to direct the claimant's release, the unlawful failure to advise the Secretary of State for Justice to transfer the claimant to open conditions and the unlawful failure to fix a date for the next probation hearing.[10]To complete the background, I record that in a letter dated 10th October 2008 the Parole Board wrote to the Secretary of State noting that the last OASys had been completed on 29th June 2007, more than 12 months prior to the case being considered, which was a breach of the procedures as laid down in Prison Service Order 2205. In those circumstances, the Parole Board continued, the Secretary of State was invited to consider referring the case back to it for further consideration. On 28th October 2008, the Secretary of State declined that invitation, asserting that the OASys assessment was just 1 week more than a year old at the time. That was only a minor irregularity in terms of the relevant Prison Service Order, and that, as appears from the Parole Board's decision, the Parole Board had taken into account matters that had occurred since the June 2007 assessment. Accordingly, it concluded, the claimant had received a fair hearing. The statutory framework[11]Two bodies of law regarding those sentenced to imprisonment for public protection ("IPP") are of relevance to this application. The first is section 225 of the Criminal Justice Act 2003 ("the 2003 Act"), which authorises the imposition of IPP sentences. Section 225(1) provides that a person has to be over 18 years and convicted of a serious offencecommitted after the commencement of the section. The key provision, section 225(1)(b), stipulates that the court has to be of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. Serious offences are defined in section 224(2) as offences which are specified offences and punishable by a sentence of at least 10 years or life. A specified offence is a specified violent or sexual offence. These are listed in Schedule 15, Part 1 of the Act. Included in that list is causing death by dangerous driving, the offence to which the claimant pleaded guilty before the Oxford Crown Court. The phrase "significant risk" in section 225(1)(b) has been considered in the leading case of R v Lang [2005] EWCA Crim 2864; [2006] 2 Cr App R (S) 3, where it is said that significant risk was a higher threshold than a mere possibility of occurrence and meant something noteworthy or of considerable importance. The "serious harm" in the section is defined by statute as meaning death or serious personal injury, whether physical or psychological: section 224(3). The provisions of section 225 have been amended as a result of the Criminal Justice and Immigration Act 2008, but since that amendment only applies to those sentenced after 13th July 2008, there is no need to address its changes.[12]The other body of law relevant to this application is that relating to the release of those serving IPP sentences. The statutory provisions are contained in the Crime (Sentences) Act 1997, Chapter II, Part II ("the 1997 Act"). A crucial point is that these provisions, which deal with the release of life prisoners, are extended by statute to apply to prisoners serving a sentence of imprisonment for public protection: sections 34(1) and 34(2)(d). Section 28(5) of the 1997 Act provides that as soon as a life prisoner has served the relevant part of his sentence and the Parole Board has directed his release under the section, the Secretary of State has a duty to release him on licence.

(b) , unless:

"the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
[13]The Secretary of State has issued directions to the Parole Board specifying the matters to be taken into account by it in the discharge of its functions under the 1997 Act. In giving such directions, the Secretary of State is obliged by statute to have regard to the need to protect the public from serious harm from offenders and the desirability of preventing the commission by them of further offences and securing their rehabilitation: section 239(6) of the 2003 Act. The latest directions, issued in August 2004, recall in paragraph 3 that the Parole Board cannot direct the release of any lifer unless the Secretary of State has referred the case and the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That mirrors the statutory provisions. Paragraph 4 goes on to set out the test that the Parole Board is to apply in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined. That is said to be:
"... whether the lifer's level of risk to the life and limb of others is considered to be more than minimal."
There was argument before me about the compatibility of that paragraph with Article 5 of the Europe Convention on Human Rights. Since the Parole Board, in its decision in relation to this claimant, did not invoke that test, I need say no more about it in this judgment. The directions of August 2004 also contain a paragraph relating to a Parole Board decision that a prisoner be transferred to open conditions. This reads that one of the main factors to be taken into account in making an order for transfer is the extent to which the lifer has made sufficient progress during sentence in addressingand reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release. Issues of statutory interpretation[14]Three issues arise in relation to the interpretation of the statutory provisions. The first concerns the submission by Mr Rule for the claimant that section 28(6) of the 1997 Act, the release section, should be read in a way which mirrors section 225 of the 2003 Act relating to the imposition of IPP sentences. In other words, Mr Rule submits that the proper test to be applied by the Parole Board in deciding on release is whether a prisoner poses a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. He refers to the case of R (O'Connell) v Parole Board and the Secretary of State for the Home Department [2007] EWHC 2591 (Admin). There in obiter remarks Latham LJ, in the Divisional Court, considered an identical test to that in section 28, which obtained in the case of prisoners subject to extended sentences. That test, contained in section 247(3) of the 2003 Act, is that the Parole Board may not give a direction to release unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Divisional Court had counsel's submission that the risk from which the public required protection was the same risk as that which required the imposition of an extended sentence in the first instance:
"In other words in cases where there has been the imposition of a sentence of life imprisonment, imprisonment for public protection or an extended sentence pursuant to the provisions of Chapter 5 of the 2003 Act, the question that the Parole Board should ask when considering release is whether of not the offender continues to meet the criteria of dangerousness in section 229 of the 2003 Act, and not their usual and more general test as suggested by the Secretary of State in the directions."
[15]At paragraph 27 Latham LJ said that there was much force in the submission, but that it was not necessary to make a final determination for the purposes of the decision in that case. I am attracted to the thrust of the submission, as well, although consideration would need to be given to whether it was consistent with the statutory language of section 28 to read in these additional requirements. In any event, there is no need for me to decide the issue, because of the concession by Mr Kovats for Secretary of State that, for the purposes of the present application, I could treat the test for release in section 28 as mirroring the test for the imposition of an IPP sentence in the first place. In other words, I can read the test for release in section 28(6) of the 1997 Act as meaning that the Parole Board has to be satisfied:
"That it is no longer necessary for the protection of the public against a significant risk of serious harm from the commission of further specified offences that the prisoner should be confined."
[16]The second submission in relation to the interpretation of section 28(6) is that the Board should not apply the same test of risk which applies to lifers in the case of those imprisoned for public protection. The argument took various tacks, but in essence Mr Rule submitted that one could not administer the same test to someone sentenced, for example, to life imprisonment with a minimum period to serve of 15 or 30 years and to someone sentenced, as in this case, to imprisonment for public protection with a relatively short tariff. Those prisoners could not be equated when it came to the Parole Board deciding whether or not the test of protection of the public from risk in section 28(6) was met. It seems to me that there is a simple answer to this submission and that is provided by the statute itself. Section 34 of the 1997 Act makes clear that for the purposes of the release section, section 28, life sentences include sentences of imprisonment for public protection. Therefore, as a matter of law, the test to be applied under section 28(6)(b) is the same test across these different categories of prisoner. In practice different considerations will bear on the application of that test, but as a matter of law the test under section 28(6) is the same for both lifers and for those imprisoned for public protection.[17]Mr Rule's third submission is that the test for release for those sentenced to IPP should be the test which obtains in the case of those serving an extended sentence. R (Sim) v Parole Board [2003] EWHC 152 (Admin), [2003] EWCA Civ 1845, [2004] QB 1288 focused on the test when considering the recall to prison of those sentenced to an extended sentence. The Court of Appeal held that the Board had to direct the release of such an offender unless it was positively satisfied that it was necessary for the protection of the public that he be confined. Mr Rule submitted that the extended sentence is closer to the sentence of imprisonment for public protection than a life sentence. Therefore, the test for the Parole Board laid down in Sim was the appropriate test to apply to this claimant. I am firmly of the view that this is not the case. It is directly contrary to the statutory provisions, section 28(6)(b), and also fails to take into account that Sim was serving an extended sentence and had been recalled. Keene LJ, with whom Munby J and Ward LJ agreed, distinguished an extended sentence from an indeterminate sentence when considering the onus of proof. Given the feature that Sim had been detained after recall, the conclusions of the Court of Appeal in that case, that Article 5(4) of the European Convention on Human Rights required a different test, is not surprising. The different context of the case makes it clear that Sim does not assist Mr Rule's submission. Far from supporting it, Sim undermines it. The claimant's case[18]Let me turn now to the submissions in relation to the specific treatment by the Parole Board of the claimant. Firstly, Mr Rule submits that this claimant should have been released, given his background and given the improvement of his situation while in prison. In terms of the background, the submission is that given the unintended nature of the death of the claimant's longtime girlfriend, and given the fact that he had never committed any other specified offence, it could not be said that there was a significant risk to members of the public of serious harm by the commission of further specified offences. Reference is made to the passage in paragraph 8 of the Parole Board's decision:
"We appreciate that there is not a present risk of violent or sexual offending."
Inasmuch as the Board relied on other assessments of risk, Mr Rule submitted that the OASys tests were out of date.[19]The authority of R v Akinyeme [2007] EWCA Crim 3290 was invoked in support. There the Court of Appeal, Criminal Division, quashed a sentence of imprisonment for public protection on anhabitual offender with vehicle-related offences. It did so because the risk of his causing death by dangerous driving in the future was insignificant. The court said that it could not be supposed that the offender had not learnt his lesson. The court had to be satisfied not simply of a significant risk that the appellant would commit further driving offences, but of a significant risk that he would commit a further offence of causing death by dangerous driving. In this case, said Mr Rule, the claimant's actual record demonstrated that while he had driven whilst disqualified, the manner of his driving was not habitually below the required standard, nor did he, on a regular basis, engage in police chases. Looking at his record, where there were 25 instances of bad driving but only one, the index offence, resulting in death, Mr Rule submitted that a simple calculation meant that there was just a 4 per cent chance of his causing this sort of risk to the public in the future.[20]Secondly, Mr Rule submitted that there was a failure to consider transfer to open conditions. He submitted that the directions to the Parole Board in this regard were not drawn up with IPP in mind and that given the facts of this claimant, the Parole Board should have had regard to the absence of violent or sexual offending, or persistent dangerous driving causing death, in deciding whether the claimant was appropriate for open conditions. The decision not to transfer to open conditions, in the claimant's case, was wrong in principle but also irrational and led, Mr Rule said, to the claimant's arbitrary and unlawful detention.[21]Thirdly, Mr Rule criticised the out-of-date OASys assessments. The trajectory of those assessments from July 2006 to June 2007 was favourable. The risk of harm to the public was medium in the second assessment, not high. Given that trajectory, and also that the 2007 assessment was over 12 months out of date by the time it went before the Parole Board, it was wrong for the Parole Board to rely on it when making its decision. Reference was made to well-known authorities, such as R (Walker) v Secretary of State for Justice [2008] EWCA Civ 30 concerning any failure adequately to resource the authorities so that they were able, in the claimant's case, to conduct a more up-to-date OASys assessment.[22]Finally, Mr Rule observed the failure to arrange a new Parole Board hearing. This submission had a wider import in the sense that Mr Rule also suggested that the lack of power vested in the Parole Board to decide on the parole of this claimant on its own initiative meant that the Board lacked the independence required by Article 6 of the European Convention on Human Rights. The Board should have had the power itself to set the dates for further hearings for this claimant. Reference was made to Murray v Parole Board and the Secretary of State for the Home Department [2003] EWCA Civ 1561 at paragraph 20, where the court had said obiter that it may be that the Strasbourg jurisprudence has some bearing on the ability of the Parole Board to set its own agenda. Consideration of the claimant's grounds[23]Did the Parole Board apply the test, with the gloss which Mr Rule has submitted should apply, and which Mr Kovats accepted. In other words did it ask itself whether it was satisfied that it was no longer necessary to detain the claimant for the protection of the public against a significant risk of serious harm from the commission of further specified offences? I am clear that the Parole Board administered that test lawfully. There is no need to recapitulate the Parole Board decision at length. However, at the very outset of the decision at paragraph 1, the Board states the test:
"[It] is empowered to direct your release if it is satisfied that it is not longer necessary for the protection of the public that you be confined."
The Board then went on to conclude, as indicated earlier, that it was not so satisfied and therefore did not recommended release. The Board set out in detail the background to the offence, the previous offending behaviour and referred to the deleterious effect of drugs in the offender's life. In that regard it noted that the claimant had undertaken work in relation to drugs, but had had an adjudication for possession of a controlled substance in 2007. It referred to the OASys assessments. It considered the oral evidence of the probation officers and it highlighted that the further work in closed conditions was derived from what they said. Then, in the concluding paragraph, the Board said that it required to be satisfied that the level of risk of serious harm from re-offending was reduced to a level consistent with open conditions on release. There was the mention, in paragraph 8, that there was no present risk of violent or sexual offending. Mr Rule said that the Board was well aware of what it was saying there, because of the submissions that he had made at the hearing. Notwithstanding that, it seems to me clear from the context of that passage and from the Board's consideration of the range of matters which it had before it, that it was referring to other violent or sexual offending, not offending constituted by death by dangerous driving.[24]In my view, it is plain from the decisionletter that the Parole Board was applying the right test. It was considering whether it was satisfied that a significant risk of serious harm to members of the public was sufficiently reduced subsequent to the claimant's sentence so that it was no longer necessary for the protection of the public that he be confined. On my interpretation of the Parole Board's decision as a whole, its approach was that even if the claimant had made some progress, which it recorded, it was not satisfied that the level of risk of serious harm to the public, which had been identified by the learned judge in sentencing him, had been reduced to a level justifying his release. The Parole Board applied the right test and, on the evidence before it, it was entitled to reach the conclusion it did.[25]The second submission was that there was a failure to consider a transfer to open conditions. I cannot accept that. The Secretary of State had sought advice from the Parole Board as to whether the claimant should be transferred to open conditions. The Parole Board noted that both the home probation officer and the external probation officer had given oral evidence. From that it inferred that the claimant needed to undertake further offending work to reduce his level of risk and that that should be completed in closed conditions before progress to open conditions could be recommended. The Parole Board adopted that approach in paragraph 9. It concluded that the risks posed by the claimant were not reduced sufficiently to be consistent with open conditions. In my view, even applying an enhanced rationality test because liberty is at stake, the Parole Board's decision in this regard cannot be treated as flawed. Whether or not the RAPt courses are available in open conditions is not a matter before me in terms of the evidence. In any event, it seems to me that the Parole Board was coming to its conclusion regarding open conditions in a perfectly straightforward way and properly applying the test mandated by statute.[26]The third aspect of the claimant's case is that the Parole Board did not have regard to the claimant's progress since the OASys assessment in 2007. It seems to me that this submission cannot succeed. The Parole Board had before it the reports from the prison I have mentioned: the reports from his personal manager, from the wing, and from the lifer manager. It also had the probation reports and heard oral evidence from the probation officers. The OASys assessments were there and were important, but they were only part of the context of decision-making by the Board on this occasion. The Board expressly mentioned that the claimant's risk of harm had lowered over the 12 months from the earlier OASys report, but it referred to the fact that he still remained at a high risk of re-conviction. It noted that since the 2007 assessment he had undertaken further courses, such as the enhanced thinking skills course, and had worked on the Sycamore Project, which teaches victim empathy. In my view, the Parole Board took into account a range of factors, of which the OASys assessments were only part. As a matter of law, the weight which the Board gave to each of the various considerations was for it and not for this court.[27]The final ground relates to the inability of the Board to set the next review date. As a matter of law, it is clear from authorities such as R (Day) v Home Secretary [2004] EWHC 1742 (Admin) that Article 5 does not require a judicial body to fix the review date and that the Secretary of State is entitled to do that. Even if it were appropriate for me to reconsider this matter, in the light of authority, I do not regard the decision for review of this claimant as being flawed as a result. As a postscript, I said earlier that the Parole Board has written to the Secretary of State and invited him torefer the case back but the Secretary of State has declined the invitation. That was not a matter before me at this hearing but the reasons advanced by the Secretary of State cannot be said to be flawed. I refuse both applications.[28]Thank you very much.[29]MR RULE: My Lord, may I make two applications? The first is in respect of an order for the detailed assessment of the public funded costs of the claimant and the second is for permission to appeal in respect of judicial review.[30]My Lord may well be aware of (inaudible), but in respect of the refusal of the writ of habeas corpus, permission is not required, but in my submission it would be an appropriate case for permission in relation to judicial review. I say that particularly with regard to ground 1 and ground 4 in respect of the application of the test. Although Mr Kovats in these proceedings made a concession, the Parole Board at present does not have guidance in that regard and a final determination by the court of that matter is the type of matter which in my submission is another compelling reason why the law should be clarified and an appeal could be lodged on that basis.[31]The second aspect in relation to that matter of course, where there is another compelling reason, because it is a matter involving the liberty of the subject, the appeal would be inviting a review again, and a further judgment about the application of the Stafford type of causal objectivity, which your Lordship has taken a view on within the reasons you have given, but in my submission it is an area of evolving and interesting law which has public importance to various prisoners. That is why I asked for permission to appeal in respect of that ground, as far as judicial review is concerned.[32]In respect of the fourth ground, no doubt your Lordship felt somewhat constrained by the Day authority, being one that was a previous decision of this court, which was directly on the point. My only argument was to distinguish it on its facts or on the developments since then. The Court of Appeal, of course, would have greater ability to look at that question in light of the developed jurisprudence in Strasbourg, some of which we dealt with yesterday. There is further material which is being persuasive, albeit more use to deploy in that court than it was before your Lordship in the Day authority.[33]For those reasons I ask for permission, please.[34]MR JUSTICE CRANSTON: Mr Rule, the question of the test is certainly an interesting one and the Ground 4 point is an issue which might well be determined a different way in the future, but I think you need to go to the Court of Appeal itself if you want to take the matter further.[35]Thank you very much.

Cited in 7 later judgments