Marie McCourt, R (on the application of) v Parole Board for England and Wales [2020] EWHC 433 (Admin)
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.[2020] EWHC 433 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
No. CO/335/2020
Venue Royal Courts of JusticeDate Tuesday, 4 February 2020
Before
LORD JUSTICE DINGEMANS MR JUSTICE FORDHAMB E T W E E N:THE QUEENON THE APPLICATION OFMARIE MCCOURTPAROLE BOARD FOR ENGLAND AND WALES(1) SECRETARY OF STATE FOR JUSTICE (2) IAN SIMMS_________ClaimantDefendantInterested PartiesMR J. THACKER (instructed by Thompsons Solicitors) appeared on behalf of the Applicant.MR N. CHAPMAN (instructed by the Government Legal Department) appeared on behalf of theRespondent.MR J. POBJOY (instructed by the Government Legal Department) appeared on behalf of the FirstInterested Party.MS J. CECIL (instructed by Tuckers Solicitors) appeared on behalf of the Second Interested Party_________J U D G M E N T
Between
Marie McCourt, R (on the application of)ClaimantParole Board for England and WalesDefendant
[2019]This meant that the Secretary of State became subject to a statutory duty to release MrSimms. Mrs McCourt was notified of the decision by letter dated 8 January 2020 but was also told that Mr Simms would only be released once all the elements of a robust release plan were in place. 4. The grounds of challenge 5. 9 6. Relevant legal principles relating to the stay 7. 10 8. 11 9. 12 10. 13 It is permissible to grant a stay preventing the release of a prisoner, see R (DSD & Anor) v The Parole Board of England and Wales [2018] EWHC 694 (Admin), 2019 QB 285, whichconcerned John Worboys, a licensed taxi driver in London who had committed serious sexual offences. The power to grant a stay is set out in the Civil Procedure Rules part 54.10(2) which provides a power to the Court to stay a decision so that the process can be challenged, see R v Secretary of State for Education and Science, ex parte Avon County Council [1991] 1 QB 558. It is right that a stay is not an injunction but, in this case, a stay would have the effect of preventing the release on licence and subject to conditions of Mr Simms in the way that an injunction would. We therefore consider it right, in the absence of full argument on the powers of this court to interfere on an interim basis with the statutory duty on the Secretaryof State to release Mr Simms, to approach this application by applying the relevant principles for the grant of an injunction, see the White Book at 54.10.4 and R v Her Majesty's Inspectorate of Pollution, ex parte Greenpeace (1) [1994] 1 WLR 570. Indeed, itbecame common ground in argument that this was the proper approach to take. The principles governing the grant of interim stays or interim injunctions to restrain a publicauthority from acting in a way which is contended to be unlawful was considered by the Privy Council in BACONGO v The Department of the Environment of Belize [2004] 1 WLR2839 where Lord Walker, giving the judgment of the board, noted at para.35 that the Court should approach the matter in accordance with the approach set out in American Cyanamid v Ethicon [1975] AC 396 as modified by the public law element of the case, which is a special factor.11. OPUS 2 DIGITAL TRANSCRIPTION12. 14 We are therefore required to consider the matter on the balance of convenience, and toconsider: whether there is a serious issue to be tried; whether damages would be an adequate remedy for Mrs McCourt; whether damages would be an adequate remedy for Mr Simms;13. 1514. 1615. 1716. 1817. 1918. 2019. 21 Special factors can be taken into account in individual cases. In public law cases, it is appropriate to take into account the wider public interest. In this case, it is also relevant totake into account that this is a decision which involves issues of release from detention. Mr Thacker submitted that the substantive application is based on risk to the public. He submitted that if Mr Simms is released pending a determination then Mr Simms will be atlarge, and he submitted that the status quo in this case was to maintain imprisonment. He submitted that Mr Simms' risk was unknown because he had not addressed his behaviour. Ms Cecil, appearing on behalf of Mr Simms, submitted that Mr Simms had already been released on temporary licence and that the risk had been managed and all risks had been adequately monitored. Ms Cecil submitted that the status quo was to leave the decision of the Parole Board undisturbed so that Her Majesty's Prison and Probation Service could carryout their statutory duty to release Mr Simms. In this case it is clear that, as far as the merits of a serious issue to be tried are concerned, weare not in a position to make any proper assessment. Both parties agreed with that approach,and therefore we approach this on the basis that there is a serious issue to be tried. This will need to be determined when the judge, deciding whether to grant permission, addresses the merits. So far as damages are concerned, it is perfectly plain that damages would not be an adequate remedy for either party. So far as Mrs McCourt is concerned, she believes that, if released, Mr Simms will never disclose the location of Helen's body, although it is fair to point out that the Parole Board, relying on expert psychologists, considered that Mr Simms will never disclose the location of Helen's body even if he is never released. So far as Mr Simms is concerned, if he is detained because the Court stays his release, hewill continue to be imprisoned without any remedy if the claim is ultimately dismissed. Each case must be determined on its own facts. We accept that there are some apparent similarities with DSD involving, as it does, the case of a release of a prisoner following a consideration by the Parole Board, but there are also obvious differences. DSD concerned different offences, different periods of imprisonment, and a different path through the prisonestate, and different matters which were not taken into account by the Parole Board. In this case we take particular account of the fact that, if Mrs McCourt succeeds in this claim and we express no views on the merits for the reasons given above, then, subject to remedy, a potential remedy is that Mr Simms can be recalled to prison and, indeed, he, like any prisoner released on licence, is always subject to recall. We also take account of the fact that, if the claim for judicial review fails or if no relief is granted, a lawful release of Mr Simms will not have been implemented.20. OPUS 2 DIGITAL TRANSCRIPTION21. 2222. 2323. 2424. 25 this case, is a matter to be considered. We take account of the fact that Mr Simms has already been released on temporary licence subject to conditions with which he has complied and returned to custody. Doing the best we can on the material that is before us inthe time that is available to us, and reflecting the public interest, we consider that the least worst option in this case is to refuse a stay and therefore not interfere with the release whichwill take place pursuant to statute. I turn now to consider the issues of disclosure. Mrs McCourt sought disclosure of various documents. The Parole Board, in their submissions, appended a draft order which provided for the release of documents subject to conditions to ensure that matters of sensitivity were protected. So far as Mrs McCourt was concerned, she also sought additionally to refer to counsel's notes and to have those disclosed to the Court, and a transcript of the hearing, and the Parole Board also agreed. The Secretary of State made no active submissions in this respect but the application was resisted on behalf of the second interested party, Mr Simms, who submitted that disclosure should not become routine in cases of this sort, stating it would be unfortunate if the delicate balance set by the new rules was upset by permitting thedisclosure of documents just because a claim for judicial review was granted. Rather like our decision in relation to the issue of a stay or interim injunction, each case must be approached on its own facts. We are not laying down any general rule that disclosure ought to be given whenever there is a challenge to a decision of the Parole Board.However we take into particular account the fact that the defendant, the Parole Board, has tohave regard to its duties of candour and has proposed this draft order, and we consider that disclosure is necessary in the public law sense for the purposes of this claim, and we will therefore direct that disclosure be given on the terms of the draft order as modified to include counsel's notes and the transcript of the hearing, subject to same protective provisions. I turn finally to the issue of case management. It is apparent that, following the further disclosure, the claimant will need to amend her statement of facts and grounds to rely on anymaterial which she considers assists her public law challenge to the defendant's decision, and thereafter the defendant and the interested parties should, if so advised, have permission to put in summary grounds of response. The matter can then be referred on the papers to the judge to decide whether to grant permission to apply for judicial review and to deal with other case management directions, including issues of expedition. We have also been told that, if permission is granted, there will be an application for a cost-capping order and, no doubt, submissions can also be provided for that by the single judge.25. _________26. OPUS 2 DIGITAL TRANSCRIPTION CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate andcomplete record of the Judgment or part thereof. Transcribed by Opus 2 International LimitedOfficial Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737CACD.ACO@opus2.digital This transcript has been approved by the Judge