Parratt, R (on the application of) v Secretary of State for Justice [2009] EWHC 3089 (Admin)

[2009] EWHC 3089 (Admin)Case Note: CO/7983/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 12 November 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BLAIR
Between
THE QUEEN ON THE APPLICATION OF DANIEL PARRATTClaimantv
Between
SECRETARY OF STATE FOR JUSTICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr P Rule (instructed by Mark Williams Associates) appeared for ClaimantMs SJ Davies and Ms S Hannett (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BLAIR: This is a claim for judicial review brought by a prisoner presently serving a sentence of Imprisonment for Public Protection ("IPP"). The issue relates to his entitlement to what is called a pre-tariff review. This is a procedure by which the Parole Board assesses a prisoner who is serving an indeterminate sentence with a view to determining his suitability for transfer to open conditions. This may, if successful, be a first step towards ultimate release into the community. It does not apply where, to put it for the moment in a non-technical way, the minimum period to be served by the prisoner is less than three years. In the case of such a prisoner, the first review is the one shortly before the earliest release date.[2]The essence of the dispute as it arises between the parties in this case is as follows. When a defendant receives a sentence of IPP, the sentencing judge has to set a minimum period before release can be considered. He does this by reference to half of a notional determinate term. This is because, had a determinate term been passed, the prisoner would, under current legislation, have been released halfway through. The minimum period must, however, give credit for the time spent by the prisoner on remand in custody pending conviction. The question in the present claim is the basis on which that period is to be calculated for the purposes of entitlement to a pre-tariff review. Is it, as the claimant maintains, the period including time spent in custody on remand, or is it, as the defendant maintains, the period excluding the time spent in custody on remand? As good an example as any as to the difference this makes arises from the facts of the instant case, which are largely undisputed.[3]On 10 April 2006, the claimant, who was then aged 21, had been drinking heavily. He came across a group of young people who had been having a meal in a local restaurant. Unprovoked he tried to start a fight, and hit one of them, knocking him to the ground and kicking him in the head. Another member of the group tried to intervene and the claimant hit him too. He then followed him across the road as he tried to get away, and punched him with such violence that he was knocked out and fell backwards, cracking his head. Having rendered him unconscious, the claimant ran away. The victim suffered very serious and life threatening injuries, and a promising life has been blighted.[4]The claimant was remanded in custody on 26 April 2006. Following a trial, he was convicted on 14 September 2007 of causing grievous bodily harm with intent, having already pleaded guilty to charges of affray and causing actual bodily harm. The claimant already had two convictions for affray. He was given a sentence of Imprisonment for Public Protection pursuant to section 225 of the Criminal Justice Act 2003. The trial judge directed that the minimum period before which the Parole Board could consider him for release was three and a half years' imprisonment, less the 417 days that he had already spent in custody. His earliest release date was, therefore, two years and 130 days later, namely 21 January 2010. At the time of this hearing, of course, that date has not yet been reached.[5]There is, however, this complication to the facts. On 22 October 2007, the defendant, through the National Offender Management Service, wrote to the claimant, reminding him that the specified part of his sentence was due to expire on 21 January 2010. The Parole Board would consider his eligibility for release at an oral hearing shortly before the specified part of his sentence had expired. All this is standard and not in issue. However, the letter also stated that an earlier formal review of the claimant's case would be conducted by the Parole Board on the basis of the papers only. It would begin with the disclosure of the Parole Board dossier to the claimant on 1 November 2008. This was, as I understand it, halfway through the period between passing of sentence and earliest release date. The purpose of this review, it was stated, was to consider whether the claimant presented an acceptable risk to be transferred to open conditions. In other words, what appeared to be on offer, the claimant says, and says rightly, was a pre-tariff review.[6]The defendant, the Secretary of State for Justice, who has responsibility for NOMS, says that the suggestion as to pre-tariff review was erroneous. This mistake was noticed in September 2008 when staff called for the file to begin the November 2008 review. A new review notification was issued to the claimant on 24 September 2008. This stated that the earlier letter should be ignored because it had been sent in error, and informed the claimant that his case would be referred to the Parole Board for consideration of his suitability for release shortly before the specified part of his sentence expired.[7]By e-mail dated 24 April 2009, that is to say some seven months later, the claimant's solicitors contacted the Secretary of State requesting clarification of the claimant's eligibility for a pre-tariff review. By reply of the same date, the Secretary of State confirmed that the claimant's tariff had been calculated as two years, four months and ten days: in other words, three and a half years minus 417 days. It was, therefore, under three years and the claimant was not eligible for a pre-tariff review, it was stated. His first review, it was stated, was due to take place on 21 January 2010 or thereabouts.[8]The claimant, on the other hand, says that this is wrong, and that the first letter that he got accurately reflected what is the true position. These proceedings are, in effect, brought to enforce the terms of that letter.[9]A letter before claim was written on 18 June 2009. These proceedings were commenced on 20 July 2009. Permission was granted on two of the three grounds relied on by the claimant. The statutory provisions[10]Much of the argument has revolved around the meaning of the word "tariff" as it is used in various provisions of policy statements issued by the Prison Service. These are called Prison Service Orders. The word "tariff" itself is not defined in the applicable statutory provisions, but I must nevertheless set them out. The first of these is section 225 of the Criminal Justice Act 2003, pursuant to which the claimant was sentenced to IPP. I have already outlined how such a sentence is calculated. Section 225 applies where someone over 18 has been convicted of a serious offence and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Section 225(4) goes on to provide that:
"A sentence of imprisonment for public protection ... is a sentence of imprisonment ... for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners ..."
[11]Section 34(2)(d) of the 1997 Act, as amended, accomplishes this by providing that "life sentence" includes a sentence of IPP under section 225 of the 2003 Act. An earlier provision of the 1997 Act deals with release. Section 28 provides:
"Duty to release certain life prisoners (1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner’s sentence is a reference to the part of the sentence specified in the order. ... (5) As soon as - (a) a life prisoner to whom this section applies has served the relevant part of his sentence, (b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence. (6) The Parole Board shall not give a direction under sub-section (5) with respect to a life prisoner to whom this section applies unless - (a) the Secretary of State has referred the prisoner's case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
[12]The latter words encapsulate the test that the Parole Board has to apply in considering release. It will be seen that section 28 refers the prisoner having served the "relevant part of his sentence". This, in colloquial terms, has been called the "tariff" or the "punitive element" of the sentence. To see how it is to be calculated, one must go to a different statute.[13]Section 82(A) Powers of Criminal Courts (Sentencing) Act 2000, as amended, provided at the time of the claimant's conviction as follows:
"82A Determination of tariffs (1) This section applies if a court passes a life sentence in circumstances where the sentence is not fixed by law. (2) The court shall ... order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 ... shall apply to the offender as soon as he has served the part of his sentence which is specified in the order. (3) The part of his sentence shall be such as the court considers appropriate taking into account- (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it; (b) the effect of any direction which it would have given under section 240 of the Criminal Justice Act 2003 below (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment; and (c) the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003; .... (7) In this section - .... "life sentence" has the same meaning as in Chapter II of Part II of the Crime (Sentences) Act 1997."
[14]It will be noted that the term used here refers to the part of the sentence specified in the court's order. The effect of the provision, so far as relevant to this case, is that the crediting of periods on remand in custody is dealt with by reference to section 240 of the Criminal Justice Act 2003. In the terms of this section as it was at the time of conviction, one finds the following:
"(3) Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence. ... (5) Where the court gives a direction under subsection (3), it shall state in open court— (a) the number of days for which the offender was remanded in custody, and (b) the number of days in relation to which the direction is given."
[15]Under these provisions, therefore, the part of the sentence specified by the judge for the purposes of the section 82A "determination of tariff", to adopt the phrase used in the title to the section, takes account of time spent on remand in custody credited under section 240 Criminal Justice Act 2003. This is the period which is the relevant period for the purposes of section 28 of the 1997 Act.[16]In the claimant's case, the judge gave credit for the whole of the period served on remand in custody, so the specified part under section 82A, or the relevant part for the purposes of section 28, was two years, four months and ten days. This gives an earliest release date of 24 January 2010. The policy statements[17]The statutory provisions do not deal with pre-tariff review. The position in this respect is based on policy statements issued by the Prison Service. So far as this case is concerned, the court has to consider their application to the claimant. There are two in point. One is the Prison Service Order 4700 in force up to 1 April 2009. This was formally called the "Lifer Manual". Chapter 3 is still in force. It provides, so far as material, as follows:
"3. PUNITIVE PERIODS OF A LIFE SENTENCE 3.1 Background The formal setting of punitive periods for lifers, within life sentences, was introduced in 1983 by the then Home Secretary, Leon Brittan. Under those arrangements Home Office Ministers set a minimum period of imprisonment - known colloquially as the "tariff" - to satisfy the requirements of retribution and deterrence and that period had to be served in full before a lifer's release could be considered by the Parole Board. However, this period did not provide an automatic release date as lifers could be detained beyond the tariff expiry date on grounds of risk for as long as was necessary. Therefore, life sentences normally contain a 'punitive' period, represented by the tariff length and a 'preventative' period during which release and liberty on licence is dependent on the assessment of risk. 3.1.1 Over the years, the Ministerial power to set punitive periods has gradually passed to the courts. As a result the judges now set a "specified" or "relevant" part for all life sentence prisoners which reflects the appropriate punitive period to be served from the date of sentence. Under the Criminal Justice Act 2003, the trial judges became responsible for setting the "specified part" for adult mandatory lifers (also known as the "minimum term") and, from 4 April 2005, those sentenced to imprisonment, or detention, for public protection (IPP) ... 3.1.2 The terminology and calculation of punitive periods has altered over the years but this Manual uses the generic term "tariff" to represent the punitive period, given its widespread usage by prisoners, prison staff and probation officers. However, as highlighted later in this Chapter, it is important that staff recognise the distinction between the term "tariff" and the "specified parts" of sentences now set by the judiciary which run from the date of sentence and exclude time spent in custody on remand."
[18]First Parole Board reviews were formerly dealt with in chapter 5 of PSO 4700. Prior to April 2009, that provided as follows:
"5 FIRST PAROLE BOARD REVIEWS 5.1 First Parole Board Review 5.1.1 Timing of first review The purpose of the first Parole Board review is to consider the prisoner's suitability for transfer to open conditions. The first review is considered on the papers only. It will normally begin around three years before the tariff expires in cases where the tariff is set for six years or over ... 5.1.2 Short tariff review cases 5.1.3 The date of the first review is set by LRRS caseworkers on the basis of tariff length and progress in custody. As a general rule, a pre-tariff expiry Parole Board review on the papers will not be feasible if the tariff is less than 3 years. In such cases the prisoner is entitled to have a first review shortly before tariff expiry to consider suitability for release on the expiry date. In cases where the tariff is between 3 and 6 years the first review will begin on the papers at the halfway point. The first review date will be notified to the prisoner by LRRS (copied to the Home Probation officer) as soon as possible after sentencing. The first review date is the date on which the complete dossier is disclosed to the prisoner ..."
[19]With effect from April 2009, first Parole Board Reviews have been dealt with in PSO 6010, a document called "Generic parole process". It provides, so far as relevant:
"2.1 Pre-Tariff indeterminate reviews and further reviews 2.1.1 The purpose of the pre-tariff Parole Board review is to consider the prisoner's suitability for transfer to open conditions. It normally begins about 3 years before tariff expiry, but can be shortened dependent on the tariff expiry date. Pre-tariff reviews are not usually provided to prisoners with a tariff of less than 3 years. The short tariff cases (i.e. those less than 6 years) require PPCS Case Managers to: • Set the date of the pre-tariff review based on the tariff set in open court and the progress in custody. In cases where a pre-tariff review is not feasible the review date is set at tariff expiry to enable the Parole Board to consider the possibility of release. The Parole Board may also consider the option of open conditions at that time. In cases where the tariff is between 3 and 6 years the pre-tariff review date will as close to the half way point as possible. The review date will be notified by PPCS to the establishment and prisoner (copied to the Offender Manager) ..."
[20]I should say that it is not in dispute between the parties that the provisions up to and after 1 April 2009 are broadly of the same effect. Nothing turns on any difference in the language used. How the policy has been applied[21]It is of some importance, I think, to see how these policies have in fact been applied by the Prison Service. This is dealt with in a witness statement prepared for the hearing by Mr Stephen Watson on behalf of the defendant. He is the Pre-Release Policy Manager in the Public Protection Casework section of the National Offender Management Service. He says as follows. "The policy for the setting of Parole Board reviews is set out in Prison Service Order 6010, which replaced chapters 5 and 6 of PSO 4700. In chapter 3 of PSO 4700 ... it is explained that throughout that document the generic term "tariff" is used to represent the punitive period. However, there are variations in its precise meaning among the different types of indeterminate sentences which staff must be aware of. Paragraph 3.1.2 was not interpreted as meaning that the pre-tariff review referred to in chapter 5 must be based on the full period in custody including time spent on remand. The Secretary of State has consistently based the pre-tariff review upon the specified part or relevant part only and this has always been understood. That has continued under PSO 6010. Section 2 of PSO 6010 explains that prisoners with a "tariff" of less than three years will not normally receive a pre-tariff review; those with tariffs of between 3 and 6 years will have a review at the halfway point; and those with tariffs of over 6 years will have their review 3 years before tariff expiry. As I have mentioned, the timing of the pre-tariff review as set by PPCS in the case of IPP prisoners is based on the specified part to serve from date of sentence."[22]Mr Watson then goes on to deal with the defendant's view of the facts of this case:
"... the claimant's specified part was 2 years 130 days. As this period is less than 3 years he does not qualify for a pre-tariff review in accordance with PSO 6010 (nor under the old PSO 4700). In a letter dated 22 October 2007 Mr Parratt [the claimant] was told by PPCS ... that he would have a pre-tariff review that would begin on 1 November 2008. As was explained in our response to the letter before claim dated 30 June 2009, this was an administrative error which was corrected as soon as it was noticed. I apologise that this error occurred but I do not accept that PPCS was obliged to hold the review. The claimant's case highlights some practical difficulties that would occur if time spent on remand in custody were included in the calculation for scheduling pre-tariff reviews. The claimant was remanded into custody on 26 April 2006. He was sentenced in September 2007, with the Judge indicating that he should serve a minimum 3½ years in custody less the 417 days spent on remand. Were he entitled to a pre-tariff review at the halfway point of the 3½ year period it would have begun only shortly after he was sentenced. Having a Parole Board review so early in a prisoner's sentence would serve no useful purpose because of the limited opportunities to complete any meaningful risk reduction work beforehand. The claimant has asked to be granted a pre-tariff review but he can gain no practical benefit from these proceedings. The claimant is legally entitled to have his suitability for release considered by the Parole Board when he has served the specified part of his sentence. Mr Parratt's specified part expires on 21 January 2010 and the review to consider his suitability for release is underway. If the Parole Board do not consider him suitable for release then they may recommend a transfer to open conditions. The present position is that the holding prison has disclosed the complete dossier to Mr Parratt, the Parole Board and PPCS (this was completed a little late). The next stage is for the Board to consider the case on the papers to determine whether any further information needs to be obtained."
This witness statement was at 4 October 2009. I am told that the Parole Board hearing is presently scheduled for February 2010.[23]Mr Philip Rule, counsel for the claimant, does not accept the proposition that having a review so early in a prisoner's sentence would serve no useful purpose. Nor does he accept that the claimant can gain no practical benefit from these proceedings. I shall come back to these points. However, he also challenges Mr Watson's account of how the policy, as regards pre-tariff reviews, has been understood and applied. He does so because he says that statistics which would have enabled this evidence to be tested were requested, but not supplied on the grounds that the data was not reliably available. However I can see no reason not to accept Mr Watson's evidence in this respect, and I do so. Ground 1: the contentions of the parties[24]The claimant argued three grounds at the hearing, permission having been obtained for the first two. Of these the first took by far the most time. In the end, however, the arguments were relatively simple. Ground 1 is the alleged failure by the defendant to apply stated policy by incorrectly interpreting the meaning of the term "tariff". The essential dispute on this ground, it is submitted by the claimant, concerns the proper meaning of "tariff" as a matter of law and as used in the various policy documents that I have referred to. This use, it is submitted, makes plain what the policy does, and staff seeking to apply it must recognise the distinction between the term "tariff" and the "specified" part of the sentences (paragraph 3.1, PSO 4700).[25]It is also, it is submitted, made plain that the "tariff" runs from the date of first remand, not the date of sentence (paragraph 3.2). The specified part differs, it is submitted, from the tariff, in that the former runs from the date of sentence. So to calculate the punitive period imposed in such cases, the time allowed in custody in remand has to be added to the specified part (paragraph 3.2).[26]It is submitted by the claimant that the policy of the defendant is properly understood to provide for a pre-tariff review for all prisoners with a tariff period in excess of three years. It is submitted that this plainly included the claimant, who received a tariff or punitive period of three and a half years.[27]On the defendant's part, the Secretary of State does not accept that PSO 4700 requires the time spent in custody on remand to be included in the "tariff" for the purposes of determining who should have a pre-tariff review under paragraph 5.1.3. It is accepted that, as it is put, paragraph 3.1.2 of PSO 4700 is "somewhat ambiguous". However, reading the policy in a commonsense way and as a whole, it is submitted that the proper construction is that given by the defendant, ie that the time spent in custody on remand should not be included in the calculation of the three-year period for these purposes.[28]It is submitted that paragraph 3.1.1 of the policy indicates that for some sentences, including sentences of IPP, judges set the specified or relevant part which reflects the "punitive period to be served from the date of sentence". This, it is submitted, indicates that when the following paragraph says that the generic term "tariff" is to be used to represent the punitive period, it means in such cases the period to be served from the date of sentence.[29]The final sentence of paragraph 3.1.2 should, it is submitted, be read as meaning simply that it is important for staff to recognise that, in some cases, the tariff includes time in custody on remand, but where there is a "specified part", it does not.[30]In any event, it is submitted that it is clear that the policy on conducting pre-tariff reviews was based upon practicality. It was not considered generally feasible to conduct a pre-tariff review if the review was less than three years. That, it is submitted, was plainly because in such cases there would be insufficient time for the prisoner to complete appropriate risk reduction work and demonstrate his suitability for transfer to open conditions before the review started. That depends on the time served since the date of sentence, it is submitted, during which risk reduction work will be carried out, and not on the time spent in custody on remand when the prisoner has not been convicted of anything and course work will be unavailable.[31]To construe the policy as the claimant contends, it is submitted, would give rise to practical difficulties. There could well be cases where, once the time spent in custody on remand was taken into account, the prisoner only had a short time to spend in prison after sentence. This could, it is said, necessitate pre-tariff reviews almost as soon as the prisoner was sentenced. Thus, it is submitted by the defendant that the Secretary of State's interpretation of his policy is rational and lawful. Ground 1: discussion and conclusions[32]The claimant pointed out, rightly in my view, that, in formulating or applying a policy that directly affects the period a prisoner spends in custody, it is important that there should be consistency and transparency. Interpretation of the policy is a matter for the court: see First Secretary of State v Sainsbury's Supermarkets Limited [2005] EWCA Civ520 at paragraph 16 per Sedley LJ.[33]In reading these policy documents, the correct approach is, in my view, as set out in the judgment of Sir Thomas Bingham MR (as he then was) in R v Director of Passenger Rail Franchising, Ex parte Save Our Railways and Others [1996] CLC 589 at 601. He said:
"In reading the Objectives, Instructions and Guidance the court is not construing a statute, nor even subordinate legislation. The document must be read in a practical down-to-earth way as a communication by a Secretary of State to a responsible public official. The language used is not to be invested with more precision than it would naturally bear. Paragraph 18 [the relevant paragraph in that case] must be read in the context of the whole document, and of the Act itself."
[34]Each party put forward a number of contentions to support their interpretation of the policy documents. The crucial issue, as I have said, is whether the three-year period referred to in paragraph 5.1.3 of PSO 4700 includes the period spent on remand or not. Mr Rule, for the claimant, put forward a well argued case in this respect, relying on the language used, as well as on a number of other considerations. In particular, he maintains that the importance to a relatively short tariff prisoner of a pre-tariff review should not be underestimated. The reason for giving prisoners a pre-tariff review is precisely because of the recognition of the importance of spending time in open conditions to enable an application for release to be made at the conclusion of the punitive period having been completed in custody. The pre-tariff review is the stepping stone, he submits, to open conditions, which is, in the majority of cases, a prerequisite to eventual release on licence.[35]Again, I would accept the broad thrust of that submission. Nevertheless, it is plain that the shorter the minimum period to be served, the less purpose there will be in a pre-tariff review prior to the review that must take place at the end of the minimum period to assess whether it is any longer necessary for the protection of the public that the prisoner should be confined. Any period taken as the norm is bound to be arbitrary, but it is not suggested that the Secretary of State is thereby precluded from setting such a period. Nor is there any suggestion that it is other than reasonable to provide that a pre-tariff review is not usually provided to prisoners with a tariff of less than three years. If, however, as the claimant submits, that period is calculated to include the period spent on remand in custody, the potentiality exist for a pre-tariff review relatively soon after sentence, and relatively close to the review that has to be carried out at the end of the minimum period. This case is indeed an illustration of those points.[36]The discussion, it is to be noted, takes place in the context of dangerous offenders. Before passing a sentence of Imprisonment for Public Protection, the court must be of the opinion that there is a significant risk to members of the public of serious harm -- that is death or serious personal injury, whether physical or psychological -- occasioned by the commission by the defendant of further specified offences. As Court of Appeal authority has made clear, the court is concerned with future risk in that regard (eg R v Johnson [2007] 1 Cr App R (S) 112).[37]In the case of such an offender, in my view there is force in the defendant's submission that a pre-tariff review, which would otherwise take place at the halfway point, is not usually feasible where the tariff, excluding time spent on remand in custody, is less than three years. I have come to the conclusion that interpreting paragraph 5.1.3 (now paragraph 2.1.1) in the context of the whole document, the Secretary of State's submissions as to timing considerations support the contention that, in the case of an IPP prisoner, to regard the "tariff" for these purposes as the "relevant or specified part of the sentence", not including time spent in custody on remand, is indeed the correct interpretation. It is in any event, in my view, a rational and lawful interpretation.[38]It follows that I reject the claimant's first ground. The second and third grounds[39]I can deal with these quite shortly. Mr Rule submitted that, even if he is wrong on the interpretation point, the defendant should at least have considered whether, despite the general rule, a pre-tariff review should nevertheless have been carried out in the claimant's case. He points out, correctly, that it is expressed only as a general rule. He also points out, again correctly, that all the evidence is to the effect that the claimant has been making good progress in prison. He is, it is submitted, an exceptional case.[40]I cannot agree with the last point. I do not think that anyone would have contemplated bringing proceedings for judicial review in this case but for the letter sent out, as I have held in error, on 22 October 2007. The defendant's progress is good. There is nothing to suggest that it is exceptional. The policy has been correctly applied in his case. I reject the claimant's second ground.[41]The third ground is that the letter of 22 October 2007 gave rise to a "legitimate expectation" that a pre-tariff review would be held. It is submitted by the claimant that the statement in the letter that such a review would take place constituted a clear and unequivocal representation. It was neither ambiguous nor provisional or conditional. It was within the power of the defendant to make such a decision. There is, it is submitted, no justification for the change of decision. To permit reversal after 11 months would, it is submitted, be conspicuously unfair and amount to an abuse of process.[42]Reliance has been placed in that regard on R(Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755. That was a case about the withdrawal of a scheme rather than a mistaken letter, as is the present case. In my view, the single judge was right to refuse permission on this ground. It is true that there was a considerable period of time that elapsed before the mistake was identified. It was in fact identified in September 2008, when staff called for the file to begin the November 2008 review which the letter had referred to. A correction was sent promptly on 24 September 2008. In my view, there was no legitimate expectation of a pre-tariff review in the claimant's case.[43]Furthermore, although the correction letter was sent on 24 September 2008, a challenge to the situation was not made until 24 April 2009. These proceedings were begun in July 2009. They have come on for hearing in November 2009 at a time when the arrangements for the claimant's Parole Board hearing at the end of his minimum term are well advanced. That hearing, as I have said, I understand is now due in February. I cannot see that any purpose would be served in a pre-tariff review at this stage.[44]However, for the reasons that I have given, the claim must be dismissed.[45]MS HANNETT: My Lord, I am very grateful for that. In terms of the formal order, I think simply the latter words of your judgment suffices, that the claimant's claim be dismissed. I do not have any instructions to make an application for costs.[46]MR JUSTICE BLAIR: Very good. Thank you very much. Mr Rule?[47]MR RULE: My Lord, can I make an uncontroversial application first in respect of a public funding assessment of the publicly funded costs?

MR JUSTICE BLAIR: Certainly.

[49]MR RULE: And secondly, may I apply for permission to appeal? In respect of ground 1, paying all regard to your Lordship's decision as to between competing arguments as to what the policy has been in terms of its application, your Lordship, in my submission, it is arguable that, bearing in mind section 67 of the Criminal Justice Act 1967 and its application in the context of lifers and the policy with the word "tariff", might be capable -- in my submission, it is arguable -- that Mr Watson's approach that your Lordship has accepted might be unable to sustain an attack on the basis of that previous legislative position in respect of ground 1.[50]Secondly, in respect of ground 1 the arguments that I addressed to your Lordship in respect of the arbitrary effects, that the reading takes the tariff period in the policy to mean excluding the remand time, because of course of the lack of control that the prisoner may have over when that sentencing takes place, and the other factor, which I do repeat but your Lordship will recall that I referred your Lordship to, your Lordship has clearly taken, in interpreting the policy on ground 1, the argument as to the purposive construction from the defendant in preference to those of the claimant, but nonetheless, in my submission, both on the literal reading of the policy and on the purposive argument, there is an arguable case for the alternative, which, in my submission, warrants appeal to resolve what is an important policy document for other prisoners, as well as for this prisoner. I appreciate in terms of practical effect the outcome of these proceedings, and depending perhaps on when the Parole Board does offer the final hearing, and one knows that sometimes they slip back month after month, but it may be that there is not a benefit to the individual prisoner because of the length of time it may take for an appeal to be dealt with. But nonetheless that is not a certainty given the fact that that hearing date could move still further. Secondly, of course, for other prisoners the policy remains as it is, and its interpretation, as I say, is an important issue. So those are the reasons why I ask for permission on ground 1.[51]On ground 2, your Lordship, the policy was not in dispute of course; it is based on a question of feasibility and the purpose, and as your Lordship will note, of course, based on setting the tariff period and progress in custody. So, in my submission, because of the approach to the circumstances of this particular prisoner in ascertaining what are the correct approaches to prisoners bearing in mind their individual circumstances on ground 2, in my submission there is an arguable case for which permission to appeal might be given, either because it is arguable or because of the importance of the issue so that there is some other good reason to allow an appeal.[52]My Lord, that is the application that I make.[53]MR JUSTICE BLAIR: Thank you very much, Mr Rule. No, I am not going to give you permission to appeal. This comes down to a question of interpretation. As you have rightly accepted, there would be no practical benefit in this particular case. If the matter is to go further, then it will be preferable for it to go further on a basis that was not, if I can put it this way, academic.[54]Very well, anything else from either of you?[55]MS HANNETT: No, thank you.[56]MR RULE: No, my Lord, thank you.

Cited in 2 later judgments