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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ahmed, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1159 (Admin) (04 May 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/1159.html Cite as: [2006] EWHC 1159 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		4th May 2006

Thursday, 4th May 2006

1. MR JUSTICE GIBBS: A preliminary issue has arisen as to whether the claim in this case has now become academic and it is a matter which I should consider with some care. Helpful submissions have been made about it both by Mr Southey, on behalf of the claimant, who submits that the despite recent developments the claim should not be regarded as academic, and submissions by Miss Stern to the effect that in the light of recent concessions made by the Secretary of State, it would not be useful or serve any proper purpose for me to continue to hear the claim.
2. The circumstances are that the claimant was convicted of an offence of violence and sentenced to a term of imprisonment. The law requires that he serves half of that period of custody and then is released on licence. However, provisions exist pursuant to statute, namely the Crime and Disorder Act 1988, which applies to this case, and the Criminal Justice Act 2003, which applies to current cases, which enable an administrative procedure to take place which results in the release from custody of defendants, subject to conditions. One of those conditions is that they be monitored electronically by means of a tag. The terms of such release are described as Home Detention Curfew ("HDC").
3. Pursuant to those provisions on 13th July 2005, the claimant was released on Home Detention Curfew. On or about 27th July 2005 his licence was revoked under section 38A of the relevant Act on the ground that his whereabouts could no longer be electronically monitored at the place where he was required to reside. In other words, it came to the attention of the authorities that the tag had been removed. Attempts were made to arrest the claimant, but they were unsuccessful because he was no longer to be found at the place where he was required to reside. Before his whereabouts had been discovered, solicitors on his behalf wrote to the Secretary of State, making representations against the revocation of the HDC. The Secretary of State was unwilling to set aside the decision to revoke the licence. These proceedings were brought, but at least one judge of this court made clear that the claim should not be permitted to be pursued unless and until the claimant surrendered himself. So, on 17th January 2006, he did in fact surrender himself. Permission was granted for these proceedings. On 31st January 2006, the Secretary of State, having considered the representations made in writing with respect to the revocation under section 38A(2), upheld the recall.
4. The Secretary of State very recently has decided that, for reasons upon which I need not elaborate, that decision to uphold the recall was flawed. His decision to that effect is, I think, connected with the failure or inability to examine the electronic tag to see whether the claimant's representations may have been justified. Meanwhile, the claimant has remained on bail. He would, if the reconsideration of his representations resulted in an adverse decision, be liable to be recalled again to custody. His bail would then be liable to be terminated. The reason for that is that the custodial period of his sentence has not yet been served in full, whether in prison or subject to HDC. The Secretary of State has indicated that he is prepared to review once more the representations which have been made. If the review results in a cancellation of the recall, then he will serve the rest of the custodial part of his sentence under HDC.
5. The issue at this stage is whether these recent concessions have rendered the claim academic. In the light of the concessions, Mr Southey makes it absolutely plain to the court that the complaint made is now confined to an attack on the structure of the procedure applicable to Home Detention Curfew revocation and to the submission that it is contrary to the human rights of the claimant and, indeed, other claimants who have to be subjected to that procedure. He submits that the matter is not academic because the Secretary of State's proposal is to invoke once again the very procedure which is under attack and if the claim proceeds, then it will not be academic because the claimant will secure a declaration of incompatibility. For that reason, essentially, the proceedings are still live. Mr Southey also points out, probably rightly, that a similar claim may be mounted in the future by claimants, even if this claim does not proceed.
6. Miss Stern submits that the Secretary of State has, in fact, quashed the challenged decision, so there is, therefore, at this stage no decision actually to challenge. She points out that the most that the claimant can hope to achieve is a declaration of incompatibility and submits, rightly, I think, that the court would under no circumstances properly go further. She says that it would be wrong in principle for the court to propose a structure which did comply with the Human Rights Act and the European Convention. That function, submits Miss Stern, would be a matter for the Government and for Parliament.
7. Finally, she submits that the court, if indeed it is only the structure of the process which is under attack, would not have any issue as to actual fairness or correctness in relation to the decision of this claimant to make.
8. Having considered those submissions with care, my conclusion is that in relation to this claimant the claim has, in fact, in substance become academic. The reason for that is that there is still the strong possibility, if not probability, that in his case he will be permitted to serve the balance of the custodial part of his sentence on Home Detention Curfew. If the further review proposed by the Secretary of State comes to the opposite conclusion, then I think is the time, if it arises, for this claim to proceed further. If one looks at this matter in substance, the claim has genuinely become academic. Mr Southey points out that the decision to revoke the licence still stands, subject to the review, but he also recognises that the part of the procedure under section 38A(1), dealing with the initial revocation, is no longer to be the subject of challenge in this claim.
9. Under all those circumstances, I do not propose to proceed with the substantive hearing at this stage. However, the possibility still exists that the claim may become more than academic and therefore, subject to submissions by counsel, it may be appropriate to adjourn the hearing for claim pending the review by the Secretary of State.
10. MR SOUTHEY: My Lord, certainly our position is that the claim has to be adjourned, not least because, of course, I think the Secretary of State has accepted that it has to be adjourned for those reasons. Obviously, bail, it is agreed, is appropriate in all the circumstances, and secondly, that will give the court jurisdiction should the claim need to be reviewed.
11. MR JUSTICE GIBBS: As a matter of case management, it seems far better, in any event, to keep the claim alive pending the review.
12. MR SOUTHEY: My Lord, yes. My learned friend I am sure can address you in relation to this, but I am sure my learned friend's proposal is that bail should continue until the Secretary of State has concluded the review. If the review is positive, then bail would lapse because it is meaningless at that stage because he would be back at liberty. If the review results in the Secretary of State maintaining his decision, at that stage bail, as I understand it, should continue for a reasonable period to enable this court then to review the outstanding issues.
13. MR JUSTICE GIBBS: I think that is very sensible.
14. MISS STERN: My Lord, can I just make one point of clarification. We did intend to, and I apologise but we have not already quashed the decision, but we invited the court to quash the decision.
15. MR JUSTICE GIBBS: So be it.
16. MISS STERN: I just wanted to clarify that.
17. MR JUSTICE GIBBS: I hereby quash it then.
18. MISS STERN: I am grateful for that, my Lord. In terms of the outcome, we are perfectly content that the matter should stand adjourned and that the proposal would be that the matter would stand adjourned. In the event that the Secretary of State allows the claimant's appeal, then the proceedings should automatically stand dismissed. In the event that the Secretary of State dismisses the claimant's appeal, then it would be proposed that the claimant should have a limited time to make submissions to this court as they wished and then the matter should return for final hearing, the Secretary of State being given the opportunity to respond. My Lord, we have actually drafted a similar order in another case, so I am very happy to take on that role.
19. MR JUSTICE GIBBS: Thank you very much.
20. MISS STERN: As to bail, it is perfectly right that if the Secretary of State allows the appeal, then bail will cease to have relevance, but only at the point when HDC can properly be assessed and the difficulty is that HDC requires provision of an address where monitoring can effectively take place. The only possible complication of the order, and the only area where I elaborate on what Mr Southey has suggested, is to allow a bit of time with bail to allow that process to be undertaken.
21. MR JUSTICE GIBBS: 14 days perhaps?
22. MISS STERN: Yes, my Lord, that would be perfectly adequate. Other than that matter, if the Secretary of State were to dismiss the claim, then we are content for bail to continue until further order of this court. So my Lord, I think that covers all the slightly complicated eventualities.
23. MR JUSTICE GIBBS: I would be very grateful if an order could be drafted to that effect. What I am anxious to avoid is the unnecessary expense of a further hearing in the event that an appeal is allowed. So I will make it clear that any disposal of the case in the event of the appeal being allowed can be conducted on paper without attendance, unless there is some dispute, in which case there will be liberty to apply.
24. MR SOUTHEY: My Lord, two other issues I think need to be addressed, both relating to costs. Firstly, obviously, the claimant seeks his costs to be assessed.
25. MR JUSTICE GIBBS: Yes.
26. MR SOUTHEY: My Lord, the second issue that I would wish to raise is costs, and obviously it is a parties' costs. Obviously today we have, I accept, been unsuccessful in opposing the Secretary of State's application, effectively, to adjourn this claim on the basis that it is academic. But my Lord, we would submit that despite the normal rule that the costs should follow the event, this is not a case where that order should be made. When one looks at the history of this matter, the claimant served his skeleton argument raising --
27. MR JUSTICE GIBBS: Before I hear you on that, I am not sure whether any application for costs is being made yet.
28. MR SOUTHEY: That may be the case. I suppose it is more sensible if my learned friend speaks first about costs.
29. MR JUSTICE GIBBS: Is there any application at this stage being made for costs, Miss Stern?
30. MISS STERN: My Lord, my submission is no order for costs because there has not been a determination by a court, so it would be inappropriate for there to be --
31. MR JUSTICE GIBBS: I would have thought no order for costs, apart from Legal Services assessment, would be the appropriate order.
32. MR SOUTHEY: My Lord, the only slight hesitation in relation to this is that, of course, I accept the point has not been --
33. MR JUSTICE GIBBS: The alternative, if I may intervene, perhaps discourteously, is to reserve the costs because in the event that there was an adverse decision on appeal, and in the event that judicial review proceedings continued, and in the event that they succeeded, you might wish to claim your costs of today. But I think the general justice of the case, frankly, would probably be no order at this stage.
34. MR SOUTHEY: My Lord, the reasons why I am hesitating about that are twofold, I think. Firstly, the position is that the Secretary of State has been aware for some time in the involvement with the (inaudible) case that there were flaws underlying the decision to recall on the facts of this case. I accept that we served our skeleton argument, I think, from memory, about three weeks ago, but no proposal was made for a quashing order until yesterday. Again, I accept that we were able to take instructions yesterday, but inevitably they were rushed and in circumstances where the Secretary of State, essentially, has known for some time that there were flaws in the decision-making process that resulted in quashing, there would be no order for costs.
35. The only other reason I am a little reluctant to accept no order for costs at this stage is that your Lordship is aware that there is the issue of whether damages should be paid in relation to this. There is the application to amend. That has not necessarily been addressed. The reason why I make that point is that if we are right and Article 5.4 is engaged by the recall, one of the other consequences is that, clearly, if the decision is procedurally unfair in the sense that there is insufficient consideration of the justification, that itself would amount to a violation of Article 5.4. There may well, in our submission, have been a violation of Article 5.4. I accept, in part, that damages may be payable may be determined in part by whether the Secretary of State decides to maintain his decision, which is why it may be difficult to resolve the issue of damages at this stage. But the issue of costs is perhaps a real one in these circumstances and one which perhaps cannot be properly determined until the proceedings are closed.
36. MR JUSTICE GIBBS: There is a distinction between the order for costs relating to today and the proceedings as a whole. The proceedings as a whole are not concluded, are they?
37. MR SOUTHEY: No, my Lord.
38. MR JUSTICE GIBBS: So at the moment I am inclined to make no order for costs so far as today is concerned, and that is what I do make, but I make no order relating to the costs of the proceedings as a whole. I think it would be appropriate, depending on the outcome of the appeal or review, for the parties to seek to agree an order for costs if the appeal is successful. If the appeal is unsuccessful, the matter will almost certainly come back before this court anyway, and it will make an order for costs depending on the outcome of the proceedings as a whole. That is the reasoning behind the decision that I propose to make, which relates solely to the costs of today. Unless anyone has any strong representations to the contrary, and I am going to give you an opportunity to make them, that is the order I propose to make.
39. MISS STERN: My Lord, might I just address that, simply because the simple reason that if the parties cannot agree, there will then be additional costs incurred in trying to come back before the court. On the question of costs, the claim challenged two things at the outset. The first was the timing of when representations should be considered, and that is the point which, frankly, has been abandoned before your Lordship on the basis that Mr Southey says that on the facts of the particular case, one could not challenge the Secretary of State's decision --
40. MR JUSTICE GIBBS: Forgive me, before you give the reasons for what you are seeking, could I ask you what counter-suggestion you are making?
41. MISS STERN: My Lord, I suggest no order for costs on the proceedings to date. That would then avoid the need for there to be any further dispute should the Secretary of State allow the claimant's appeal, in which case your Lordship has indicated that the matter should stand dismissed. It is to try and avoid that slightly difficult satellite litigation, inviting a new judge to go back and look over the papers afresh when your Lordship has looked at it.
42. MR JUSTICE GIBBS: I understand the force of that. I am inclined to go along that route. Is there anything else you want to say, Mr Southey? I know you have made various points that I have taken into consideration.
43. MR SOUTHEY: My Lord, just to deal with the point my learned friend made, briefly. My learned friend said initially there was a challenge to the failure to consider representation in advance, but my Lord, the position was in relation to that was that we raised that issue and we received a response simply saying, "We cannot consider representations." We brought the proceedings. The Secretary of State essentially changes his position so that we then, in the light of that change of position, reviewed our position. Nothing, in my submission, in relation to that was unreasonable. What one comes down to is that there were three issues. One, essentially, we have reviewed in response to the Secretary of State's response. We reviewed that earlier. It was raised in relation to that issue. One of which has been resolved in our favour, clearly, because the matter has gone back, and one of which has been left unresolved, which is whether or not Article 5.4 requires an independent review. My Lord, in those circumstances, in our submission, at the very least we have justified bringing these proceedings, so to make no order for costs for the proceedings as a whole, in our submission, is potentially unjust from the claimant's point of view.
44. MR JUSTICE GIBBS: Thank you very much. Despite Mr Southey's submissions, I think that the overall justice of the case is met by my original proposal, as amended, namely that in the proceedings to date there should be no order as to costs. I do bear in mind very much in amending my original proposed order the point made by Miss Stern that it is far better that there should be prospective finality in the circumstances where the appeal or review succeeds, from the claimant's point of view. The fact is that the public is, in one way or another, paying for these proceedings. Of course, if the appeal is unsuccessful, so far as the claimant is concerned, costs thereafter are at large and, no doubt, if he succeeds in a review of such a decision in future, then costs are likely to follow the event. Thank you very much. Would you be kind enough to send the order through in due course.