[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gulliver, R (on the application of) v Parole Board [2006] EWHC 2976 (Admin) (06 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2976.html Cite as: [2006] EWHC 2976 (Admin)

[New search] [Printable RTF version] [Help]

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

		Royal Courts of Justice Strand London WC2
		6th November 2006

1. MR JUSTICE COLLINS: The claimant in this case is now some 37 years old. On 4th February 2005, he was convicted of an offence of assault occasioning actual bodily harm and given a custodial sentence of three years' imprisonment. He had to be released on licence at a period which was halfway through that sentence and that release took place on 17th March of this year. There were various conditions, which included that he be subjected to what I think can loosely be described as a tagging systems which was undergoing a trial at that time on the Isle of Wight, where he lived and where he had been imprisoned.
2. A week later, on 24th March, the Secretary of State decided to recall him to prison. The basis of the recall was that he had breached the conditions of his licence in that, having been informed that the battery which worked the device was running low and he should recharge it, he did not do so. The circumstances of the breach were stated to be that the device had shut down so that there was no way of seeing where he had been for some five hours or so during the night of 23rd March and he had been contacted but the unit had still not been recharged for some four hours or so. It was said that the device appeared to be working correctly so far as the company responsible was concerned and, accordingly, it was suggested that the Secretary of State should consider recall.
3. The Secretary of State's powers of recall are contained in section 254 of the Criminal Justice Act 2003 which provides, as far as material:

"(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2) A person recalled to prison under subsection (1)-

(a) may make representations in writing with respect to his recall, and

(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

(3) The Secretary of State must refer to the Board [the Parole Board] the case of a person recalled under subsection (1)."

and subsection (4) requires the Secretary of State to comply with a direction of the Board for immediate release.

4. The reasons given for the recall were as follows:

"You have been recalled to prison because you have breached condition 5(vii) of your licence in the following way:

It has been reported that you have failed to comply with such arrangements as may be reasonably put in place and notified to you by your supervising officer so as to allow for your whereabouts to be monitored by global positioning satellite (whether by electronic means or otherwise) in that on 23rd March 2006 you failed to re-charge your satellite tracking unit when prompted to do so by Securicor. You acknowledged the message which informed you that your battery was running low but did not put the unit to charge for a further 4 hours and 18 minutes, during which time your whereabouts could not be monitored via satellite tracking. It is your responsibility to ensure that the tracking unit is fully charged and operational.

In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."

5. The claimant has a very bad criminal record. It includes, so far as material for our purposes, two previous convictions for serious attacks upon the woman with whom he had before the attack been living. The first was in 1987, when he occasioned serious injury to a girlfriend which led, no doubt because of his youth and the lack of any other convictions at that stage, to sentences of three months in a detention centre. Following that, in 1995, he was convicted of rape and kidnapping, which led to a sentence totalling some five and three-quarter years. Those were offences committed against, as I have indicated, his then ex-partner. There was a further offence in 2002, a third one, when he was sentenced to 18 months' imprisonment suspended for two years for assault occasioning actual bodily harm and then came the index offence, assault occasioning actual bodily harm, for which he received the sentence of three years' imprisonment. Those were not the only offences of violence for which he had been convicted but they are the most serious and most relevant for the purposes of this case and the whereabouts of the victim of the assault for which he received the sentence of three years' imprisonment was concealed from him and he should not have known where she was because there was believed to be a risk that he might attack her again. The cause for concern was based upon the fact that he was liable, when under stress, to resort to the taking of drugs and it appeared that the taking of drugs was a contributory factor to his offending. So there was powerful material upon which concern about his danger to, in particular, any ex-partner could be said to exist.
6. The matter came before the Parole Board initially in May but was fully considered at an oral hearing on 13th June 2006 and, on 15th June, the Parole Board decided that the decision of the Secretary of State would be upheld and that he should not be released until compulsory release on licence, which was required to occur when he had served three-quarters of the sentence. In fact, that is next month and so there is little time left for him to benefit from this claim, should it succeed.
7. The duty to release short term prisoners was contained, so far as he is concerned, in section 33 of the Criminal Justice Act 1991. That, as I have said, required release from a sentence of this length, that is three years, when he had served half, to be on licence until he had served three quarters. Section 33A provided that a prisoner who has been recalled and then released subject to conditions, when he has served three quarters of his sentence, is liable, if he breaches any conditions or otherwise has to be recalled, to serve the whole of his sentence.
8. The Board, in giving its reasons, said this, so far as material:

"The Board accepted that there may have been problems in getting the satellite tracking system equipment to work properly and that there was no evidence to prove conclusively that Mr Gulliver had failed to recharge the equipment during a crucial period of some four hours overnight. Mr Gulliver deserved credit for alerting the police and probation service to the fact that the security firm had inadvertently disclosed his partner's new address to him. However given his history of violence towards this and previous partners, the Board is satisfied that in the circumstances known at the time the decision to recall was justified. In reaching this decision the Board has taken account of an email from the security firm stating that the tracking equipment was working properly when it was checked after the alleged breach.

Mr John Grimes, the home probation officer, and his line manager ... both gave evidence. During the hearing they changed their view that the risk was manageable. Crucial to the release plan proposed in consultation with the MAPP team was a condition of residence at a hostel in Fareham, on the mainland. It was considered essential that Mr Gulliver remained under close supervision and not on the Isle of Wight now that the pilot satellite tracking option had ended. Mr Gulliver was still considered to present a high risk of causing harm to his ex-partner as well as any future partner.

Although Mr Gulliver had previously signed up to residing at the hostel, his reservation about the move away from the Isle of Wight became clear. Not only would he lose the support of his family and an offer of work, but he feared the isolation and exposure to drugs. At one stage during the hearing Mr Gulliver said he doubted he would be able to cope with this. Also, having finally prepared himself to tackle difficult issues from this childhood through counselling he was very troubled at the prospect of transferring from one counselor to another at a stage when he returned to the island."

9. The line manager and the probation officer considered that the change in his attitude showed a lack of commitment to the supervision process and because of this withdrew support for his release. The Board then went on to say that they had taken account of his good behaviour since returning to prison and that he had work and support from his family on the island, in particular from his mother. But against that they had to weigh the opposition to his release on the grounds of public protection expressed by the Probation Services and noted that depression and emotional stress had been key factors in the past and, on his own evidence, Mr Gulliver had clearly been deeply anxious about his ability to cope with isolation away from his support networks on the Isle of Wight.
10. It is apparent from that that the Parole Board was not satisfied, certainly not beyond reasonable doubt, that he had indeed failed to recharge the equipment and had been in breach of the condition which had been given as the reason for the recall. It is, as I understand it, common ground that, since the effect of recall is return to detention, it is appropriate that a high standard of proof will be needed in order to justify such a recall. On the other hand, it is equally clear that the Parole Board have not indicated that they were persuaded that he had been an innocent party, as he contended, on the basis that the equipment in question had been malfunctioning and it was not his fault that the recharging had not occurred.
11. The statute provides no help in indicating the basis upon which there should be a recall. I do not need to consider the point in depth but it seems to me that in principle it is necessary for the prisoner in question who has been released to have, in the view of the Secretary of State, done something or shown that somehow by his behaviour he is still a risk or is not co-operating with the conditions under which he has been licenced on his release from prison. It would not be sufficient for the Secretary of State to say to himself, "I know that he has to be released because the statute requires it but I am satisfied that he is a danger and therefore, although I have to release him, I am going immediately to recall him, even though he has done nothing which shows that he is going to be in breach of any of the conditions of his licence or has demonstrated in any way that he is indeed likely to be a danger to the public". That, as I say, is not directly before me but it seems to me that is perhaps self evident because otherwise the Secretary of State would be able to disregard the statutory provision and it would have been very easy for Parliament to have included a provision which made it clear that, in an exceptional case, the Secretary of State would be justified in not releasing if satisfied that the individual remained a danger to the public.
12. The submission made by Mr Maloney, putting it very broadly, is that, if the Parole Board decided, as was part of their remit, that the original basis of the recall was not made out and therefore the recall was not justified, it was not open to them to maintain the detention. He accepts, as the authorities to which I have been referred make plain, that recall will be justified if, when the evidence is looked at overall, it is clear that there was a reason for recall, albeit not the reason upon which the Secretary of State relied. It is accepted and common ground that that is established by authority. But, submits Mr Maloney, on the facts of this case, once the breach of condition is removed, there was no other ground upon which the recall could be justified. Mr Prevsky submits that that is not so, albeit it is not his fault that the whereabouts of the victim of the assault became known to him. Nonetheless, that circumstance showed by itself that there were now grounds for the fear that he might well attack that victim and there was a real danger to her.
13. I should say that the satellite company, Securicor, appears to have stated her address on some documentation that was shown to or provided to the claimant. That clearly should not have happened and displays what, on the face of it, is a high degree of negligence on the part of Securicor. I hope that steps have been taken to ensure that such a thing does not happen again and that the dismay and disapproval of the authorities is conveyed to Securicor, if it did happen.
14. I appreciate that it was not the claimant's fault. Nonetheless, it is said that that is a matter which the Secretary of State would have been entitled to take into account, and indeed was entitled to take into account, and that it in itself could have justified the decision to recall. So one is in, submits Mr Prevsky, the same situation as the authorities showed to be correct, namely that, if there is any good reason, albeit the one that was actually used turns out not to have been established, the recall is nonetheless justified. That may, albeit it seems unfair, be right.
15. The approach to the issue must be considered in the light of the purpose behind these provisions. In this connection, it is helpful to refer to some observations of Lord Bingham in R (West and Smith) v Parole Board [2005] 1 WLR 350 at page 359. He makes the point that, as far as sentencing and licencing is concerned, the sentence imposed by the court when imposing a determinate sentence is that which the court decides and should represent the punitive element, or rather is the period which is appropriate to punish a defendant for what he has done. While the judge will be aware of the effect of the statutory provisions governing early release, that should not influence the length of the sentence passed. The sentence is not an indication of the period the defendant must spend in prison but is a composite package, the legal implications of which are in large measure governed by the sentence passed. In paragraph 25 on page 359, he continued thus:

"While, fourthly, it is true that early release provisions have the practical effect of relieving overcrowding in the prisons, that is not their penal justification. But such justification exists. All, or almost all, determinate sentence prisoners are expected to return to the community on release from prison after serving their sentences. It is in the interests of society that they should, after release, live law-abiding, orderly and useful lives. For a host of practical, psychological and social reasons, the process of transition from custody to freedom is often very difficult for the prisoner. It is accordingly very desirable that the process of transition should be professionally supervised, to maximise the chances of the ex-prisoner's successful reintegration into the community and minimise the chances of his relapse into criminal activity. But of course there will be cases in which such professional supervision may not be, or appear to be, effective. If a prisoner is released, subject to conditions, before the expiry date of the sentence imposed by the court, and he does not comply, or appears not to comply, with the conditions to which his release was subject, a question will arise whether, in the interests of society as a whole, he should continue to enjoy the advantages of release.

26. lastly, it is plain from the statutory provisions already quoted that the resolution of questions of the type indicated is entrusted, and entrusted solely, to the Parole Board. In exercising this very important function, it is recognised to be an independent and impartial tribunal for purposes of article 6(1) of the European Convention. It is the primary decision-maker, not entitled to defer to the opinion of the Secretary of State or a probation officer: R v Parole Board, Ex p Watson [1996] 1 WLR 906, 916. As the materials already cited make clear, the Parole Board is concerned, and concerned only, with the assessment of risk to the public: it must 'balance the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury'..."

As Lord Slynn pointed out in the same case, the recall of the prisoner on licence is not a punishment:

"It is primarily to protect the public against further offences, though it may also in some cases lead to further training which would enable the prisoner on a subsequent release to integrate more readily into the community."

In the same case, at page 363, Lord Bingham considered article 5(4) of the European Convention, which requires that everyone deprived of his liberty should be entitled to take proceedings by which the lawfulness of his detention should be speedily decided by the court and his release ordered if the detention was not lawful. It was accepted in that case that the Parole Board had the essential features of a court within the meaning of article 5(4) and Lord Bingham continued at letter F on page 363:

"Convention jurisprudence establishes that the judicial review of the lawfulness of detention must be wide enough to bear on those conditions which, under the Convention, are essential for the lawful detention of a person in the situation of the particular detainee..."

He then cites a number of cases:

"That means, for present purposes, that the Parole Board should be empowered (a) to examine whether circumstances have arisen sufficient in law to justify further detention of a determinate sentence prisoner released on licence and, if so, (b) to decide whether the protection of the public calls for the further detention of the individual detainee. The Parole Board is empowered to discharge those functions. Its review will in my opinion satisfy the requirements of article 5(4) provided it is conducted in a manner that meets the requirement of procedural fairness already discussed."

16. As I have said, the Act provides no specific guidance to the Parole Board as to the approach it should adopt. However, section 239 of the 2003 Act, which was concerned with the functions and duties of the Parole Board, provides by subsection (6):

"The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to-

(a) the need to protect the public from serious harm from offenders, and

(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."

17. It has recently been decided by Walker J in Girling v Parole Board, a case which is, I am told, subject to appeal to the Court of Appeal, that giving directions to the Parole Board when exercising, as it is in cases such as this, its independent judicial functions is incompatible with the Convention. I do not decide and do not have to decide whether that is or is not a decision which I should follow because it does not seem to me that the directions to which I have been referred are of any real assistance to the determination I have to reach. They provide as follows:

"Section 254 of the Criminal Justice Act 2003 requires the Parole Board to review any decision taken by the Secretary of State to recall an offender to prison. The review will take place once the offender has been returned to custody. In determining whether the recall was appropriate, the Parole Board is entitled to take into account the information available at the time the recall decision was taken, together with any subsequent information, including representations made by or on behalf of the offender. The Parole Board should consider whether:

(a) The prisoner's continued liberty presents an unacceptable risk of a further offence being committed; or

(b) The prisoner has failed to comply with one or more of his or her licence conditions; and that failure suggests that the objectives of probation supervision have been undermined."

18. Pausing there, that, as it seems to me, does no more than indicate to the Parole Board what it would, one would have thought, do in any event because of its duty to consider whether the individual in question is a risk to the public because he may cause serious harm to someone or may commit offences or have shown that he is not prepared to respond to the conditions upon which he is released, which in itself means that he cannot be trusted to remain at large. But the direction goes on in these words:

"In cases where the Parole Board believes that the initial decision to recall was inappropriate, the prisoner should be re-released as soon as it is practicable to do so. In determining when to re-release the prisoner, the Parole Board should satisfy itself that the prisoner presents an acceptable risk to public safety and that adequate risk management arrangements are in place."

19. Now, that is a paragraph which is, in my view, singularly badly drafted. It could mean, on the face of it, that if the Parole Board decided that the initial decision to recall was wrong then there was an obligation to release as soon as practicable. But it then goes on to indicate that it will not be practicable unless and until the Parole Board satisfies itself that the prisoner presents an acceptable risk to public safety and adequate risk management arrangements are in place.
20. It seems to me that that is to approach the matter in a wrong way. The Parole Board has to decide whether a prisoner, having been recalled, should be released and that is its major function and, in carrying out that function, it has to consider the risk to the public were the prisoner to be released. The question is whether the unlawfulness of the original recall prevents the Parole Board from continuing the detention even though it is persuaded that the individual is a risk were he to be released and that that risk was not an acceptable one.
21. There is no direct authority which deals with this point and, as it seems to me, it may depend upon the meaning one should attach in this context to the word "unlawful". If that means no more than it was wrong because, as a matter of fact, it turns out not to be justified, that is one thing. If, on the other hand, it was unlawful because the Secretary of State, for example, knew full well that he could not justify the reasons which he gives but nonetheless went ahead and ordered recall, that is another matter. In R (Jackson) v the Parole Board [2003] EWHC 2437 (Admin), Richards J dealt with a case in which it was alleged on the claimant's behalf that he had been, and was then being, unlawfully detained, having been recalled. In paragraph 1 of the decision, Richards J says this:

"The claimant was a serving prisoner who was released on licence. Soon after his release he was recalled by the Secretary of State. His recall was subsequently confirmed by the Parole Board. He contends that the recall and/or its confirmation by the Parole Board were unlawful, that his subsequent imprisonment was therefore unlawful and that he is entitled to damages for such unlawful imprisonment. The arguments before me have concentrated on the lawfulness of the recall and its confirmation. It is common ground that if either decision was unlawful, then the claimant's imprisonment was unlawful from the date of the unlawful decision: see R v. Governor of Brockhill Prison, ex parte Evans (No.2) [2001] 2 AC 19."

22. Article 5(4) of the Convention requires the lawfulness of the detention to be considered. It seems to me that, on the facts of this case, as indeed Mr Moloney accepts, the decision to recall on what was known by the Secretary of State at the time was a decision which he was entitled to reach and was therefore a lawful decision. Thus the detention following the recall was a lawful detention. The same principle applies to an arrest. An arrest is made on reasonable suspicion. There may be remand in custody based upon that reasonable suspicion. It may in due course turn out that the basis of that reasonable suspicion was wrong. Nonetheless, it has never been suggested and it has never been the law that the detention pending trial was for that reason unlawful detention. It remained throughout lawful detention.
23. That being so, the only question can be whether, having ascertained as a matter of fact that the basis upon which the Secretary of State decided to detain was wrong, the Parole Board is precluded from maintaining that detention. The Parole Board's function, as has been already made clear by the citations I have made, is to consider, on all the material before it, the risk to the public and it decided, for good reason, that there was an unacceptable risk. The Probation Service had changed its mind and the Parole Board was clearly motivated, to an extent, by the evidence given by the claimant himself as to the likely effect on him if he had to be on the mainland instead of on the Isle of Wight. Mr Moloney makes the point that that is, to an extent, unfair because it only arose because the experimental or the trial period for the tagging had come to an end and so there was no way of keeping control of his movements whilst he was on the Isle of Wight and, since his ex-partner was on the Isle of Wight, that is where the risk was most likely to arise.
24. Harsh though it may be, what the Parole Board was concerned with was the protection of the public and its duty in that regard was, as it seems to me, not to release a prisoner unless it was right to do so because there was no risk or no unacceptable risk to the public. Thus, since the detention itself, following the recall, was lawful, it was equally lawful, in my view, for the Parole Board to decide that, in the circumstances that existed when they have to consider the matter, it was right that the individual should remain in custody. Were it otherwise, they would be forced to release a person who was a danger to the public and that is not what the system is designed to achieve and certainly is not what it should achieve. One must bear in mind that this case concerns a relatively short period of imprisonment but the principle is the same in relation to very much longer periods, when there could be a substantial further time which should be served, if an individual has shown that there is a risk, before he can properly be released from custody.
25. In my view, "lawful" must mean that there was to the knowledge of the Secretary of State, whether actual or constructive, no justification for the recall before it could be right to say that the Parole Board would have no proper basis for deciding that the prisoner should remain in custody.
26. I make it clear that what I have just said is a matter which does not arise directly on the facts of this case and, as Mr Prevsky has indicated, it would not be right for me to reach a decision that finally concludes that point. If, on the facts, a case ever arises where it can be said that the Secretary of State effectively misused his power and recalled in circumstances where there was no justification on the face of it for so doing but the prisoner in question is a real risk and a real danger to the public, nonetheless the Parole Board would have no option but to release him, that particular problem will have to be faced. But I am entirely satisfied that, on the facts of this case, there is no lawful bar to the Parole Board having dealt with the matter as they did.
27. In those circumstances, the decision to continue the detention until the three quarter period, that is until some time next month, was a lawful one and this claim must fail.
28. MR PREVSKY: My Lord, can I ask for my costs?
29. MR JUSTICE COLLINS: Do you really went them against a prisoner?
30. MR PREVSKY: I am sorry, my assumption was wrong and I am not going to ask for costs.
31. MR JUSTICE COLLINS: There does not seem much point.
32. MR PREVSKY: I was going to suggest the usual order, as it were, but those instructing me are against it.
33. MR JUSTICE COLLINS: I think that, if I am honest, in the case of this prisoner, if you add to the stresses upon him you are likely to create a problem, are you not, and I think probably the sensible order would have been -- in any event, I am glad that you have those instructions, no costs. Are you legally aided?
34. MR MOLONEY: I am, my Lord. Can I ask for detailed assessment?
35. MR JUSTICE COLLINS: You can have the usual detailed assessment.
36. MR MOLONEY: Could I ask, would my Lord think that permission is appropriate in this case, given the novel issue, which is that, effectively, the Parole Board does not have to decide that recall was in fact justifiable at the time, that it could decide that issue by reference to --
37. MR JUSTICE COLLINS: Perhaps I should have said this, it is obviously right that they should decide whether the breach had occurred, or whatever it was that led to the recall, because that is material and relevant to considering what his attitude is and whether he would indeed be a risk on release. So for that purpose one can well see why the board has to review the circumstances of the detention but that is the purpose, as I see it, rather than deciding on whether in fact it was right or wrong at the time. I accept that this is a point which is of some potential importance.
38. MR MOLONEY: I only ask, my Lord, because -- I do not know about my learned friend, he could take instructions on this if he needs to -- at every recall hearing, the Parole Board decides whether or not in fact the recall decision was justified and some guidance may be --
39. MR JUSTICE COLLINS: Yes, what do you say?
40. MR PREVSKY: My understanding was that they do so in the way that they did in this case, and that, as I understand, is that they first look at whether the recall was justified in the Secretary of State's own information and they then go on to decide whether release is appropriate. So what they do not do is ask themselves whether recall is justified in some wider sense, necessarily. They may do in circumstances when someone depends on that. But if, for example, as your Lordship has found, there is a basis to justify the conclusion that the person is not safe, then they may feel that it is unnecessary to do so. So ultimately, because the defendant looks at the facts, so far as you are asking for my submission, I would submit --
41. MR JUSTICE COLLINS: Well, what if they were to -- I mean, we are back into the realms of not this case, I suppose, but what if they decided, if there were no decisions on these lines, the Parole Board said to itself not only was there no factual basis, as it turns out, in the Secretary of State's decision to recall but he jolly well should have known, or he did know, and this was a decision which was clearly not only wrong but knowingly wrong. But it may well be they never have decided.
42. MR PREVSKY: I am not aware of any of those and I would hope and submit that that category would be vanishingly small, or cases where the Secretary knowingly recalls a prisoner --
43. MR JUSTICE COLLINS: Clearly that is not this case.
44. MR PREVSKY: It is not this case, no, and your Lordship's decision is simply a conventional application, in my submission, of the principles about risk to the public and if the Parole Board thinks there is a risk and that there is some basis upon which the original recall can be justified.
45. MR JUSTICE COLLINS: What I have effectively decided, very simply, was that if the original recall was justified on the information which the Secretary of State had, then he was lawfully in detention and if he was lawfully in detention, the Parole Board then can consider whether that detention should continue and that, putting it in a sentence, is what this decision amounts to.
46. MR PREVSKY: Indeed.
47. MR JUSTICE COLLINS: That perhaps is making clear something which may not have been clear before.
48. MR PREVSKY: It may be so, my Lord, but I would submit it is not a point that justifies the permission of this court to the Court of Appeal. The Court of Appeal can decide the question.
49. MR MOLONEY: My Lord, I say that none of the authorities deal with this point, whether or not -- and my Lord alighted on that fact in the course of his judgment: none of the authorities are clear about this. All the authorities that we have deal with whether or not -- what the Parole Board say is the Secretary of State was not right on the information that he had but there were circumstances in existence at the time of the recall which justify the recall. What my Lord is saying now is that there may not have been circumstances in existence at the time of recall that justified recall. In my respectful submission, my Lord -- and my Lord said that the point is not clear from any authorities -- that needs to be cleared up because the Parole Board will be faced on a daily basis with people arguing on behalf of prisoners that, if there was no justification for recall, you should release and I think it is an important point, my Lord, with respect.
50. MR JUSTICE COLLINS: Yes. Well, so far as this claimant is concerned, even if I were to grant leave to appeal, there is no chance that any appeal would be heard before his release date.
51. MR MOLONEY: It would seem that is the case, my Lord.
52. MR JUSTICE COLLINS: So the only interest -- I mean, he has a continuing interest because there is a potential claim for damages if it turns out that he has not been lawfully detained.
53. MR MOLONEY: Or he had to be recalled again because, of course, he is released on licence.
54. MR JUSTICE COLLINS: Well, you have to be released on licence because -- yes, I take your point, because otherwise he would be entitled to unconditional release.
55. MR MOLONEY: Indeed, my Lord. He will now be released on licence until the end of his sentence with the conditions that my Lord has --
56. MR JUSTICE COLLINS: So he still has an interest?
57. MR MOLONEY: Indeed, my Lord, which will continue until September 2007.
58. MR JUSTICE COLLINS: No, I think I am not really extending the boundaries to any great extent. I think you will have to apply to the Court of Appeal if you want to take this further.
59. Thank you both very much.