Smith v The Parole Board

Following a contested oral permission hearing, the permission rule does not impose an inflexible bar on reliance upon a ground previously refused. The High Court retains a broad discretion to extend permission where there is good reason, while respecting the earlier decision and the defendant’s legitimate expectations. The recognised circumstances are not exhaustive, and a wholly new fact, circumstance or legal proposition is unnecessary. Where refused and permitted grounds are closely connected, and justice favours a comprehensive hearing, permission may be enlarged. Here, the Article 5 and Article 6 arguments were sufficiently interrelated to require consideration together.

The claimant was recalled to custody after testing positive for cocaine and other class A drugs while on licence. The Parole Board rejected his written representations without holding an oral hearing. He brought judicial review proceedings alleging breaches of Articles 5 and 6 of the European Convention and the common law.

Silber J granted limited permission on the Article 6 and common-law oral-hearing issue but refused permission on Article 5. When the substantive hearing came before Goldring J, the claimant sought to revive the Article 5 ground by relying on further authorities. Goldring J applied restrictive guidance concerning further permission. The central issue on appeal was whether permission could be extended after a contested oral refusal and whether the closely related Article 5 and Article 6 grounds should be heard together.

The appeal was allowed to the extent necessary to permit the claimant to advance his arguments under Articles 5 and 6. The Court of Appeal did not determine the substantive oral-hearing issue.

1. Scope of the discretion. CPR 54.15 requires permission where a claimant seeks to rely on grounds other than those for which permission has been given. It does not limit the High Court’s jurisdiction to grant permission on a fresh application. The Court approved the broad approach stated in paragraph 14 of Regina (Opoku) v Principal of Southwark College [2003] 1 WLR 234.
2. Exercise of the discretion. The restrictive guidance in paragraph 16 of Opoku was not exhaustive. A significant change of circumstances, new facts or a newly available proposition of law were examples of sufficient justification, not prerequisites. Where permission had previously been refused after detailed argument, significant justification and good reason were required, with proper regard to the defendant’s interests and legitimate expectations. The judge retained a wider case-sensitive discretion.
3. Application. The Article 5 and Article 6 issues were closely interrelated. It would have been highly undesirable to determine the Article 6 issue without hearing the Article 5 issue. The potential relevance of West and Regina (Giles) v Parole Board and another [2003] 2 WLR 196 did not justify separating the grounds.
4. Disposition. Rather than remitting the matter, the Court retained it. Under Part 52:15(3) and (4), it granted unrestricted permission to apply for judicial review and ordered that the case proceed in the Court of Appeal. Costs were reserved, directions were given for bundles, and permission to appeal was refused.

The Lord Chief Justice also observed that the claimant should consider applying promptly for a Parole Board review of his detention rather than waiting for the outcome of the proceedings.

1. Court of Appeal (Civil Division) — On 30 June 2003, allowed the appeal to the extent necessary to permit argument under Articles 5 and 6, granted unrestricted permission to apply for judicial review and retained the case.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Goldring J, on 24 June 2003, declined to permit the claimant to revive the Article 5 ground, applying the restrictive guidance concerning further permission.
3. High Court of Justice, Administrative Court — Silber J, on 17 March 2003, granted limited permission on the Article 6 and common-law oral-hearing issue and refused permission on Article 5.
4. High Court of Justice — Hooper J refused permission on paper on 3 February 2003. The Parole Board had rejected the claimant’s representations against recall on 3 April 2002.