Newport, R (On the Application Of) v Secretary of State for Justice [2013] EWHC 3933 (Admin)

Case No CO/58/2013[2013] EWHC 3933 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Venue LeedsDate Monday, 22nd October 2013
West Yorkshire
LS1 3BG
B e f o r e:
HIS HONOUR JUDGE BEHRENS
(Sitting as a Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF NEWPORTClaimantv
Between
SECRETARY OF STATE FOR JUSTICEDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mrs Krause (instructed by Cousins Tyler Solicitors) appeared for ClaimantMr Skinner (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T (Approved)
[1]HIS HONOUR JUDGE BEHRENS: This application for judicial review has to some extent gone off the rails. It is accepted I think, certainly by Miss Krause, that the application is off the rails but she invites me to adjourn it further and also to make a number of orders which she submits will put it back on the rails.[2]In order to understand the case it is necessary to go into the history in a little detail. Mr Newport is subject to a long period of imprisonment which will expire in 2015. It is right to say that there are no complaints about Mr Newport's behaviour as a prisoner and that he is a Category D prisoner. He is in fact in a Category C prison. That is not a matter which is before this court in this application. There was another application in relation to that matter which was dealt with last week.[3]This application concerns an application by Mr Newport for leave of absence, what is referred to by all parties as "SPLs" (Special Purpose Licence) which was originally made on 16th October 2012. The position is that a company, Oaklian Properties Ltd, owned a number of freehold properties, (25 to 28 West Parade, Rhyl, in North Wales). Those properties were subject to a compulsory purchase order and that compulsory purchase order was challenged by Oaklian Properties with the result that there was to be a public inquiry in accordance with compulsory purchase legislation. On 16th October Mr Newport applied for release on SPL to allow him to return home for the purpose of sorting through documents for use at that public inquiry.[4]Attached to the application was a detailed timetable provided by Mr Newport, indicating precisely what he wanted to do in relation to the SPL and that timetable indicated that he required five days.[5]That application was refused in correspondence between by various members of the prison staff and in particular it was refused in the course of three letters, which are dated respectively 26th October 2012, 21st November 2012 and the 12th December 2012.[6]It was that refusal which gave rise to Mr Newport's applications for judicial review which was prepared by him, as I understand it, as a litigant in person. It included within it a request for urgent consideration. That application, either the application for urgent consideration or the actual application for judicial review came before Supperstone J, who looked at it on the paper on 24th January 2013. He had the advantage of summary grounds of defence which had been prepared on behalf of the Secretary of State on 22nd January. Those summary grounds in paragraph 5 sought to rely on the grounds which were put in the letter, the letters of Mr Oliver, to which I have referred, but in paragraph 6 read as follows:
"If, which the defendant does not accept, the contents of the defendant's letters do not provide a sufficient ground for refusing permission, then the defendant is prepared to reconsider the application for a special purpose licence within 48 hours of the court's permission decision."
[7]Supperstone J plainly did not think that the letters provided sufficient grounds, or perhaps to put it no higher he thought it was arguable that the letters did not provide sufficient grounds because he granted permission. His observations were as follows:
"The request should be reconsidered having regard to any new evidence adduced which postdates the decision of the 12th December 2012."
[8]There is something of a controversy as to what Supperstone J meant by those observations because it is the submission made by Mr Skinner on behalf of the Secretary of State that that observation simply referred to the request that was made on 16th October and the new evidence was to be in the light of that request.[9]Miss Krause, on the other hand, takes the view that the purpose of the SPL was in relation to Mr Newport's claims in relation to the compulsory purchase and subsequent valuation and that that observation effectively refers to any request which may or may not postdate the 12th December 2012, in relation to special leave which is connected with the compulsory purchase application.[10]In any event, what happened was precisely what the Secretary of State indicated would happen in paragraphs 6 of the summary grounds. The application was reconsidered and he was initially granted two days SPL on the 11th and 12th February 2013. 12th February 2013 was initially listed as the date for hearing of the public inquiry, but as Mr Newport had not made his submissions, the public inquiry hearing was adjourned and there was a preliminary hearing only on 12th February.[11]Mr Newport enjoyed those two days' leave. He attended the preliminary hearing and he had the other day in relation to looking at the papers. Miss Krause makes the point that the papers were in Wales and a significant amount of his time must have been spent and indeed was spent in travelling. It is not in any way suggested that Mr Newport did not comply with the terms of his special leave. He returned precisely when he was intended to return. But whilst he was on leave, or when he returned he made another application for leave. He applied for two further periods of five days' leave to go through the papers. On 28th February 2013 he was granted a further five days and he exercised those between the 4th and the 8th March 2013. On 7th March, that is to say whilst he was on leave, he applied for a further five days leave and that was granted on 14th March. Those five days were exercised on the 18th March, so that by that time he had in fact enjoyed a total of 12 days SPL. On 21st March he applied for a further 12 days leave but that was denied and the denial took place at the beginning of April. On 15th April he withdrew his objection to the compulsory purchase order. It is suggested by Miss Krause that the reason he withdrew his objection was because he did not have enough time to go through the papers. I am plainly not in a position to make any ruling as to that; whether or not it is true does not affect the fact that he was granted and enjoyed some 12 days' leave and also it does not affect the fact that he did make an application for a further 12 days leave which was denied. At the time of that application the basis of that 12 days leave was so he could attend the inquiry in June. The reason that it was denied was that to have permitted that leave would have affected public confidence in the prison system.[12]There was no application for judicial review in relation to that refusal. There has been no, so I am told, formal application for any further period of leave. On 15th October 2013, that is to say last week, counsel on behalf of Mr Newport invited the Secretary of State or the Secretary of State's counsel to reconsider the refusal of the special purpose licence. That was not on the right form and was not made, as I understand it, by Mr Newport.[13]However it is right to say that the original purpose of the leave, which was in relation to the compulsory purchase inquiry had gone because there was no need for a compulsory purchase inquiry once the objection had been withdrawn. There is of course still to be a valuation of the interest in the property but that is a matter which may or may not be the subject of other applications.[14]As I have indicated there is a difference of view between the parties as to what should happen to this application. It is a case where Supperstone J has granted permission. It is a case where following his grant of permission, the application was reconsidered. The application was originally for five days. Two days were granted but further applications in the shape of two further applications for five days have been granted. Furthermore an application for 12 days has been refused.[15]Miss Krause in effect submits that this compulsory purchase is still not over. The inquiry has gone but there is still the valuation. Mr Newport, and I have not yet mentioned this, suffers from dyslexia. There are a lot of documents, some of which were said to have been dumped by the Customs & Excise and that justice requires that he be entitled to further time to consider the papers necessary for the valuation of his interest.[16]In those circumstances, she submits that the appropriate order that I should make is to adjourn this application and she submits, that vacate today's hearing and I relist it and make the following directions. Firstly, I require the defendant to make a response interim relief application. So far I think I have heard no argument in relation to that, so I do not deal with that at this stage. Second,within seven days of today the defendant should be ordered to inform the claimant the outcome of the fresh application for SPL, and that the claimant would within 14 days of the response, either withdraw the claim or lodge or serve draft amended grounds. There would be either a rolled up hearing or a permission hearing with an estimated length of half-a-day.[17]The Secretary of State does not accept that is the appropriate procedure. The Secretary of State submits that this application for judicial review has come to an end, in the sense that it had been determined. Permission was granted but the matter has been reconsidered and in the light of the reconsideration Mr Newport did indeed receive up to 12 days SPL. Furthermore, the original purpose which was for the public inquiry has now gone because there will be no public inquiry. If Mr Newport wishes to challenge any other request for SPL this should be done by way of separate judicial review proceedings. It simply is not possible, submits the Secretary of State, to interpret Supperstone J's order as entitling Mr Newport to keep open this judicial review in relation to any further or future applications he may wish to make for SPL in relation to the future conduct, either of the valuation or compulsory purchase order of the properties in Wales.[18]I have come to the conclusion that the Secretary of State's submissions are to be preferred. I do take the view that following reconsideration on the granting of the 12 days' leave, this application has succeeded but it has ended, that is to say that as a result of this application Mr Newport obtained a reconsideration of his refusal of SPL. SPL was granted to him. I do not think that this application for judicial review can be used, as Miss Krause wishes it to be used, for future applications in relation to SPL which he may make even if they are related to the valuation of the properties in Wales.[19]In those circumstances, I do not think it appropriate to adjourn this hearing. It may or not be appropriate to dismiss the judicial review or it may be appropriate for some other form of order to be made but there must, in my view, be a final order in relation to this judicial review.

HIS HONOUR JUDGE BEHRENS: This interim relief, I am not quite sure what it is about Miss Krause?

[21]MISS KRAUSE: My Lord, it was about the claimant being able to access the documents he needed in order to give instructions to prosecute his case.

HIS HONOUR JUDGE BEHRENS: Nothing to do with his judicial review, is it?

[23]MISS KRAUSE: Yes, it was all to do with his judicial review. We had no documents. We are unable to assist the court or prosecute the case or advise the claimant. We had nothing. He was --

HIS HONOUR JUDGE BEHRENS: You have it now.

[25]MISS KRAUSE: No.[26]HIS HONOUR JUDGE BEHRENS: I do not understand what order you were seeking, what decision. I am conscious there are difficulties but I do not see --[27]MISS KRAUSE: The order made by His Honour Judge Gosnell was in a completely different claim, had nothing to do with us. What we are seeking is not a generic order that he has access to all of these documents and has them in his cell etc, what we are seeking is to enable to have access to documents he needed to provide to us, in order to prepare this judicial review. We have not prepared it in so far as it is before the court that is how we had it. That is what it was.

HIS HONOUR JUDGE BEHRENS: Thank you very much.

[29]The purpose of the interim relief application was to enable the claimant or his solicitors to have access to the documents to prepare this judicial review. I have in view of the fact that I have been in a position to deal with the judicial review in light of the orders that have been made and the leave that has been granted, there is plainly no scope for any further interim order.[30]What order do you suggest he makes in relation to the judicial review. I am slightly reluctant to dismiss it. If I do dismiss it, it will have to have a recital making it very clear it is because you have reconsidered and it has been granted.[31]MR SKINNER: That is precisely what we would ask for.

HIS HONOUR JUDGE BEHRENS: Plainly (inaudible) the costs.

[33]MR SKINNER: We would not seek it. We would seek no order as to costs.[34]MISS KRAUSE: Yes, we would need a detailed assessment of the claimant's legally aided costs.[35]HIS HONOUR JUDGE BEHRENS: Of course, you are entitled to that. Thank you very much. Would you be in a position please to make sure we get it right, to submit a draft order?[36]MR SKINNER: Yes, my learned friend and I will confirm with each other.

HIS HONOUR JUDGE BEHRENS: I am looking at you but I am assuming you will agree it with Miss Krause.

[38]MR SKINNER: May we have 7 days my Lord?[39]HIS HONOUR JUDGE BEHRENS: You may but the easiest way to do it is by way of electronically with the Administrative Court.[40]MR SKINNER: We shall.

HIS HONOUR JUDGE BEHRENS: Thank you very much.