R (On the application of SMITH) v PAROLE BOARD & ANOR (2003)
PUBLISHED June 30, 2003
Where a judge hearing an application for permission to apply for judicial review had heard detailed arguments, any judge hearing the main application would require significant justification before taking a different view from that of the judge granting permission; if the judge at the main hearing came to the conclusion that there was good reason to allow argument on an additional ground, permission should be granted.Claimant's ('S') appeal from the decision of Goldring J on 24 June 2002 to refuse permission to rely on further grounds. S, who had been released on licence on 7 November 2001 was recalled to prison. S issued judicial review proceedings on the basis that the parole board took its decision without holding an oral hearing in breach of Art.5(4) and Art.6 of the European Convention on Human Rights. Permission to apply for judicial review was refused, and on S's renewed oral application for permission to apply, which lasted for three hours, Silber J granted permission on a limited basis, namely whether the decision of the parole board constituted a determination of civil rights and obligations under Art.6 or common law. The hearing was fixed for 24 June 2003 before Goldring J, and on 23 June 2003, counsel for S supplied an additional bundle of three authorities and supplemental skeleton argument that sought to revive previous reliance on Art.5. On 24 June 2003, counsel for S argued that the three additional cases made the argument on Art.5 stronger than it was before Silber J such that, on the basis of the decision in R v (1) Principal of Southwark College (2) Governors of Southwark College, ex parte Christopher Opoku (2002) EWHC 2092 (Admin), permission on the Art.5 ground should be granted. Applying Opoku (supra), Goldring J held permission to argue Art.5 could not be granted. On his appeal, S argued that permission to make submissions relating to the three authorities should be granted in line with Opoku or because it was appropriate to do so.HELD: (1) CPR 52.15 clearly applied to other circumstances than those which arose on the present appeal, for example where permission had been refused in relation to one ground on a written application, or where the application for permission was oral but was not contested by the defendant. (2) The discretion of a judge hearing an application was wider than that indicated in para.16 of Lightman J's judgment in Opoku (supra). Where a judge had heard detailed arguments, any judge hearing the main application would require significant justification before taking a different view from that of the judge granting permission. However, if the judge came to the conclusion that there was good reason to allow argument on an additional ground, permission should be granted. Obviously, there needed to be a real justification for allowing that to happen. The circumstances in which there might be good reason to alter the view of the single judge who had granted permission could vary without limit, and each case should be considered with regard to its circumstances. (3) In exercising discretion, it was necessary to bear in mind that if permission to rely on a ground was refused, the Court of Appeal on an appeal from the hearing at first instance would not be able to consider it. (4) The right conclusion for Goldring J to have reached would have been that argument in relation to Art.5 was so closely related to argument on Art.6 that it was appropriate that the full argument be heard. It was highly undesirable for Art.6 to be considered without consideration of the Art.5 point.Appeal allowed. Matter retained by this court under CPR 52.15. Permission to appeal refused.