CO/4638/2011 
Neutral Citation Number: [2012] EWHC 840 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 20 March 2012
 
B e f o r e: 

LORD JUSTICE LAWS 

MR JUSTICE OWEN
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Between:
 
THE QUEEN ON THE APPLICATION OF IRFAN 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Computer-Aided Transcript of the Stenograph Notes of  
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Mr Timothy Otty QC and Mr John Jones (instructed by Arani's) appeared on behalf of the Claimant 
Mr Jonathan Swift QC and Ms Melanie Cumberland (instructed by Treasury Solicitor) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	LORD JUSTICE LAWS:  This application for judicial review seeks to challenge the notification requirements under part 4 of the Counter-Terrorism Act (the 2008 Act) as being incompatible with Article 8 of the European Convention on Human Rights.  Judicial review permission was granted by my Lord, Mr Justice Owen, on consideration of the papers on 27 September 2011.  
2.	Part 4 of the 2008 Act came into force on 1 October 2008.  Sections 47 to 52 set out the notification requirements.  They are well-described at paragraphs 17 to 23 of the claimant's grounds and I replicate that summary here: 
"17.A person subject to the notification requirements must notify the police of the information specified in s. 47(2) including his date of birth, national insurance number, home address and any other address where he regularly stays, and any information prescribed by regulations made by the Secretary of State.  The person must also notify the police of any other address not previously notified where he stays for a total of 7 days in any year (s. 48(3)).
"18.The Act requires that notification be made by attendance in person at a local police station and orally notifying a police officer or other person authorised to take notifications (s. 50(2)).  On attending the station, the person is bound to accede to any requests by the police officer or other person to whom notification is made to take his fingerprints or photographs (s. 50(6)).
"19.Notification of the information made in s. 47(2) must be made in accordance with the following timeframe:
a.  Initial notification (s. 47) - within the period of three days beginning with the day of sentence;
b.  Periodic re-notification (s. 49) - within a year's time of each and every previous notification;
c.  Notification of changes (s. 48) - if the person changes his name or home address he must notify the police of this.  He must also notify the police upon being released from custody.  On any such occasion he must re-notify the police of all the information stated in s. 47(2).
"20.By s. 52, the Secretary of State is empowered to make regulations requiring a person subject to the notification requirements who leaves the United Kingdom to notify the police of their departure, and of any subsequent return.  The relevant regulations are the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009 ("the Regulations").  They apply in respect of any proposed absence from the country lasting three or more days.  The person must disclose the intended date of departure, destination and point of arrival (s. 52(2) of the 2008 Act).  Further, Regulation 3 requires him to disclose, so far as he holds it, the following information: point of arrival in each successive country he intends to travel to; name of carriers he intends to use to leave the UK and to travel between countries; address for first night outside the UK; and intended date and point of arrival of return to the UK.  Where the person knows the information more than seven days in advance of his trip, he must provide it seven days in advance unless he has a reasonable excuse for not doing so.  Otherwise it must be provided no later than 24 hours prior to departure (Regulation 4).  He must notify the police within three days of his return to the UK (Regulation 5).  The method of notification is, again, by attendance in person at a police station (Regulation 6).
"21.It is an imprisonable offence, under s. 54(1) of the 2008 Act, to fail without reasonable excuse to comply with any of the notification requirements (including under the Regulations).  The offence carries a maximum of 5 years' imprisonment on conviction upon indictment.
Duration of the requirements. 
"22.The periods for which persons are subject to the notification requirements are set out in s. 53 and are as follows:
"a. 30 years in the case of a person aged 18 on conviction and sentenced to 10 years' custody or more, or imprisonment/detention for public protection under the Criminal Justice Act 2003, s. 225;
"b. 15 years in the case of a person aged 18 on conviction and sentenced to five years' custody or more, but less than ten years'.
"c. 10 years in any other case.
"There is no provision for review of the continuing necessity for the notification requirements, or for them to be discontinued early.  They apply automatically to any applicable offender and continue in all cases until the end of the prescribed period."
3.	We are told there are presently 30 persons subject to the notification requirements under Part 4.  A person is made subject to these requirements by force of the provisions contained in sections 41 to 46.  Sections 41 to 43 specify the offences to which Part 4 of the 2008 Act applies, and sections 44 to 46 make provision as to the sentences or orders which trigger the notification requirements.  
4.	The offences are primarily terrorism offences, principally under the Terrorism Act 2000 and the Terrorism Act 2006: see s.41.  These include engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to s.5(1) of the 2006 Act: an offence to which the claimant pleaded guilty, as I shall shortly recount.  
5.	S.43 applies part 4 to a person dealt with for an offence before the commencement date (as I have said 1 October 2008) if, inter alia, the offence was on commencement a terrorist offence within s.41 and immediately before commencement the person was imprisoned or detained pursuant to the sentence or order passed or made in respect of the offence.  
6.	S.45 provides for the application of the notification requirements to a person dealt with for an offence after the commencement date, where the offence is within s.41 (or s.42) and the person has been sentenced for it to imprisonment or detention for 12 months or more: see s. 45(1)(a)(ii).  There are additionally other cases where an indeterminate sentence has been made or certain other orders made.  
7.	It is convenient next to set out the familiar terms of Article 8 of the Human Rights Convention:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, protection of health or morals, or for the protection of the rights and freedoms of others."
8.	On 17 January 2008 before Mr Justice Henriques at the Leicester Crown Court the claimant pleaded guilty, as I have said, to an offence of engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to s. 5(1) of the Terrorism Act 2006.  He was 32 years of age and had no previous convictions.  On 18 February 2008 he was sentenced by Mr Justice Henriques to four years' imprisonment.  He was released on licence on 4 February 2009.  He met the conditions specified in Part 4 of the 2008 Act for the application of the notification requirements to him.  
9.	The claimant was a subordinate of a very evil criminal called Parviz Khan, who had plotted to murder a Muslim soldier in the British army.  He also, and it is here that we find the claimant's assistance, exported goods from the United Kingdom to Pakistan for use by al-Qaeda against allied forces.  As the learned judge passing sentence on 18 February 2008 said, "almost every type of equipment used in Guerrilla warfare" was being exported.  
10.	Passing sentence on the claimant, Mr Justice Henriques said this: 
"In April of 2006 you were heard on the probe describing electrical goods.  You were seen to be carrying goods.  You assisted Khan in his shopping.  You accompanied Khan to the airport.  It is clear to me that you and Khan had few, if any, secrets from one another.  He confided in you.  You gave him advice on goods.  You went shopping together.  You are described by your own counsel as the camp follower of a fanatic.  You did, however, approve of his views.  Extremist literature was found at your house. 
"I conclude that [...] you would not have become involved in terrorist activity but for Khan's drive and overbearance [...] I accept you never traveled to Pakistan.  I accept you would not act as you did again.  You acted as assistant and confidant of Khan's.  
"I accept that whilst you ran errands for him, at 32 years of age with a GVNQ to your credit, it is difficult to describe you merely as an errand boy.  But Khan's personality was clearly stronger than your own.  You were doubtless led into criminality by him as were all your co-defendants."
11.	Mr Justice Henriques proceeded to pass the four year sentence to which I have referred.  By virtue of the length of the term, the period for which the notification requirements applied to the claimant is ten years from the date of his release on licence: see s.53(1)(c), 53(4) and 53(7)(b).  His licence period expired on 1 February 2011, and the notification requirements will cease to apply on 4 February 2019. 
12.	The claimant seeks two declarations: one, that his Article 8 rights have been violated by the application to him of the notification requirements and; two, that pursuant to s. 4(2) of the Human Rights Act 1998 Part 4 of the 2008 Act is incompatible with Article 8 of the European Convention on Human Rights.  
13.	The claimant asserts that the effects of the notification requirements are "a source of anxiety and constant preoccupation" for him, "preventing him from getting on with his life" see the grounds in paragraph 6.  He claims to be particularly vexed by the requirement to notify the police of any address at which he intends to stay in Pakistan.  He says that may lead to checks with the Pakistani security services which might in turn lead to serious ill-treatment of members of his family.  He has not, in fact, so far notified any such intended foreign visit.  He says he does not desire "to put his friends in the United Kingdom under surveillance."
14.	He objects also to the regular routine visits he has to make to the police station.  He has declined three times to sign the notification document on his attendance at the police station: that is, as I understand it, on each occasion on which he has so far been required to attend.  
15.	The claimant says that it is plain that the effect of the requirements is to interfere with his right under Article 8 to respect for his private and family life and to his home.  The question is, therefore, whether the application of the requirements can be justified under the second paragraph of Article 8 "in the interests of national security" and/or "for the prevention of disorder or crime".
16.	In support of his overall case that the application of the requirements cannot be so justified, the claimant advances two grounds.  A third, specifically asserting that police visits to his home were not "in accordance with the law", has been abandoned.  Such visits made by the West Midlands Police were not in fact made pursuant to the requirements, but in the ordinary course of policing.  It is not necessary to say more about that.
17.	Ground one is that the interference constituted by the requirements is disproportionate.  It is said that the claimant presents no risk of committing further terror related offences.  Reliance is placed on the sentencing judge's observation which I have already cited: "I accept you would not act as you did again". 
18.	Mr Otty QC also draws attention to the fact that the claimant's designation under the Terrorism (United Nations Measures) Order 2006 for the purpose of imposing financial sanctions on him, which was directed on 24 March 2009, was revoked by Her Majesty's Treasury on 29 April 2010.  More generally, Mr Otty submits that the automatic imposition of the requirements pursuant to Part 4 of the 2008 Act, with no room for any consideration of the individual case once the statutory conditions are met, is based on a blanket presumption of risk which is itself unjustified, so that the notification requirements are in principle disproportionate.
19.	Ground two has been the particular focus of the submissions made to us in court this morning.  It consists in a specific complaint to the effect that the absence of any right to seek a review of the application of the requirements during their currency of itself renders those requirements disproportionate.  
20.	I turn first to the question of whether there has been any interference with the claimant's Article 8 rights at all.  The Secretary of State, by Mr Swift QC, submits that the effects of the requirements on the claimant have been so minimal that there has been none.  Factually they have amounted to no more than the annual provision of information at the police station; and the information in question does not, says Mr Swift, extend significantly beyond what is already held on the Police National Computer in relation to the claimant by virtue of his conviction in 2008.  And its use is subject by statute to strict controls.  
21.	It is plain in my judgment that the effects of the requirements on the claimant's private and personal life, are objectively, considered very modest indeed.  But that is not the whole story.  By virtue of the requirements the claimant is compelled to answer to the State with his personal details, where he lives or regularly stays, and where he goes if he travels abroad for more than three days.  It may take very little for the complainant to comply; but the law's ordinary presumption is that these things are not the business of authority.  Where that presumption is departed from and the law makes these details the State's business, it is right in my judgment that the measures having that effect should be subject to the discipline of Article 8.  This approach, I apprehend, is entirely in the spirit of the common law.  I do not say there can be no de minimis case.  No doubt there can; that too is in keeping with the common law.  But this case is not de minimis.  
22.	It is moreover to be noted that the notification requirements imposed by sections 82 to 86 of the Sexual Offences Act 2003, which are in substance identical to those imposed by Part 4 of the 2008 Act, have been held by the Supreme Court to interfere with Article 8 rights: see F v Secretary of State [2011] 1 AC 331, a case upon which Mr Otty placed much reliance and to which I will return.
23.	I turn then to the substantive issues of proportionality.  Plainly there can be no doubt but that the aims of the requirements are legitimate: the investigation and deterrence of terrorist crime and the protection of national security.  This morning Mr Otty expressly accepted as much.  The nature of this legitimate aim is in my judgment of no little relevance to the issue of proportionality.  
24.	The gravity of terrorist crime is hard to exaggerate.  So much is no doubt self-evident.  It is supported by the reasoning of the European Court of Human Rights in Murray v United Kingdom [1995] 19 EHRR 193, para 47.  Nor can it be doubted that the protection of the people against such crime is a high duty of government.  In enacting primary legislation for the fulfillment of that duty, Parliament in my judgment is entitled to a broad margin of appreciation in the court's assessment of the legislation's impact on Convention rights.  
25.	Against that general background, the following features of the notification requirements are in my judgment material.  One, the requirements are only automatically applied to persons convicted of serious terrorist offences as specified by s. 41 of the 2008 Act.  Two, the duration of the requirements in any given case is graduated.  It depends, in effect, on the gravity of the individual's terrorist offending.  S. 53 of the 2008 Act provides for 30 years, 15 years and 10 years, depending on the length of sentence passed in the individual case.  Three, to the extent that information provided pursuant to Part 4 of the 2008 Act consists of personal data or sensitive personal data it is held by the police subject to the requirements of the Data Protection Act 1998.  Aside from that Act's provisions, moreover, the information obtained can only be used for ensuring the individual's compliance with Part 4 and for the investigation of terrorism.  
26.	In my judgment, these features militate in favour of a conclusion that the requirements are proportionate to their legitimate aim.
27.	On those areas of the case that involve the assessment of risk -- the automatic application of the requirements to persons who meet the statutory conditions, and in particular the want of any right to review -- Mr Otty places, as I have foreshadowed, much reliance on the decision of the Supreme Court in F.  That case concerned the notification requirements provided in sections 82 to 86 of the Sexual Offences Act 2003, commonly known as the sex offenders register.  As I have indicated, the substance of those requirements was the same as those of Part 4 of the 2008 Act, but for certain offenders, depending on the nature of their offence and the length of their sentence, the requirements applied for an indefinite period.  There too was no right of review provided by the statute.  The Supreme Court held that if some of those subject to this lifetime obligation were able to demonstrate that they no longer posed any significant risk of committing further sexual offences, there was no point in subjecting them to the interference with their Article 8 rights which the requirements entailed.  Accordingly, absent a provision for individual review (as to which it would be open to the legislature to impose an appropriately high threshold) the requirements were a disproportionate interference.  
28.	Lord Phillips of Worth Matravers reviewed a number of cases decided here and in Strasbourg.  He said at paragraph 34: 
"The Court of Appeal found in paragraph 35 that there was no authority binding on the court which decided the question of whether the imposition of indefinite notification requirements without the possibility of review was itself a disproportionate interference with an offender's article 8 rights.  It might have held that there was no such authority, binding or otherwise.  That analysis holds good despite the decisions in S v United Kingdom 48 EHRR 1169 and Bouchacourt v France (unreported) given 17 December 2009.  Those decisions show, however, that the Strasbourg court considers that the possibility of reviewing the retention of sensitive personal information and notification requirements in respect of such information is highly material to the question of whether such retention and notification requirements are proportionate and thus compliant with article 8.  Para 68 of Bouchacourt v France suggests that, but for the right to apply for deletion of data retained, the lengthy registration period would have been held disproportionate."
29.	Bouchacourt concerned a register of sexual and violent offenders on which an offender's name might remain for 20 or 30 years.  The scheme envisaged a right to apply, however, for deletion of the information retained.  Then in F at para 56 and 57 Lord Phillips said this: 
"56.  No evidence has been placed before this court or the courts below that demonstrates that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of reoffending.  It is equally true that no evidence has been adduced that demonstrates that this is possible.  This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic.  If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle?  I do not believe that it can.
"57.  I have referred earlier to a number of situations in which the degree of risk of reoffending has to be assessed in relation to sexual offenders.  I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified.  As he courts below have observed, it is open to the legislature to impose an appropriately high threshold for review.  Registration systems for sexual offenders are not uncommon in other jurisdictions.  Those acting for the first claimant have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian states, Canada, South Africa and the United States.  Almost all of these have provisions for review.  This does not suggest that the review exercise is not practicable."
30.	In Hay v H.M. Advocate [2012] HCJAC 28 the High Court of Justiciary held that the reasoning in F as regards the want of any review procedure did not extend to the imposition of fixed periods of registration as distinct from the indefinite period with which F was itself concerned.  With great respect, I find this reasoning difficult.  If it can confidently be shown that the individual poses no risk, the imposition of a requirement in breach of his Article 8 rights might seem as pointless if their duration is 30 years as where it is indefinite.  However, the duration of the requirements must at least be relevant to the judgment of their proportionality.  
31.	I deal first with the claimant's general case to the effect that the Part 4 requirements are in principle disproportionate to their legitimate aim.  The two critical points, that their imposition is automatic and that there is no right of review, are plainly closely related; as I have said, Mr Otty concentrated this morning on the latter.  In my judgment, with great respect, the reasoning of the Supreme Court in F as regards the notification requirements there in issue cannot simply be read across to what I regard as the very different context of the measures in hand in the present case.  As Mr Hunt, a Grade 6 civil servant in the Office of Security and Counter-Terrorism at the Home Office says at page 18 of his witness statement: 
"Terrorism offences [...] are regarded as having characteristics that set them apart from other offending.  Terrorism is driven by a variety of factors, including ideological beliefs [...] individuals convicted of terrorism offences have, by their actions, shown themselves to be susceptible to terrorist ideology and to taking an active role in terrorist ideology."
32.	It seems to me, in light of this material and other passages in Mr Hunt's statement, that the potential grip of a violent fanaticism is something much less comprehensible and therefore much more remote than, for example, the power of sexual obsession.  I do not think it can confidently be said of terrorist offences as Lord Phillips said of sexual offences in para 57 of F: 
"...it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further[...] offence can be discounted to the extent that continuance of notification requirements is unjustified."
The terrorist offender may be driven by a political ideology, a religious fervour or, as in this case, the precepts of a much stronger personality than his own; or by any combination of these.  He may be willing to put his own life second.  These possibilities must entail a wide range of unpredictable outcomes.  
33.	I recognise that not all of the offences specified in s. 41 involve a positive intention that terrorist acts be committed; but all involve, one way or the other, the giving of comfort to a terrorist cause.  I acknowledge moreover -- and this was the focus of much argument this morning -- that there may be some wholly exceptional cases where a terrorist offender can be said to pose no significant risk for the future.  Mr Justice Mitting dealt with such a case in AV [2009] EWHC 902 (Admin), and Mr Hunt acknowledges the point: see paragraph 20 of his witness statement (citing a speech of Mr Jonathan Evans, Director General of the Security Service).  But these will be not merely exceptional, but very rare cases.  
34.	I consider that in this specific context the legislature were entitled to elaborate the general rule without a right of review.  The observations of Lord Bingham in Animal Defenders [2008] 1 AC 1312 at para 33 are, with respect, of some assistance.  The residual possibility of a rare, no risk case cannot render the scheme disproportionate by reason only of the absence of a right in every case to seek a review.  This is particularly so given that, as matters stand, the regime has graduated provisions for the duration of the requirements.  The demands made by the requirements are relatively modest and the information given, as I have said, is protected by statute.  I should add that I do not consider that the relatively small number of persons subject to the requirements, 30 at present, undermines the conclusion that the no risk case will be very rare.  That conclusion is based on the evidence in the case and springs from the very nature of terrorist offending.  
35.	In all these circumstances, it was in my judgment well within Parliament's proper margin of discretion to legislate for a notification regime which applies automatically where stated criteria are met and which does not allow for individual applications for review.  I have already set out specific features of the regime which tend in favour of the conclusion that the requirements are proportionate.  That conclusion is, I think, firmly supported by the context in which the regime is placed and the considerations I have sought to describe.  I do not consider that the requirements are incompatible with the Convention rights.  The Convention rights are, of course, part of the law's protection against abuse and wrongdoing: so are these requirements.  
36.	I am no more impressed with the claimant's individual case.  The judge's observations that the claimant would not act in the same way again -- unaccompanied, with respect, by the particular reasoning -- cannot constitute a prediction of the claimant's future conduct such as to render the application of the requirements disproportionate in his case.  He was prepared to act as a henchman of a criminal bent on a murderous ideology.
37.	Finally, the Terrorism (United Nations Measures) Order -- disapplied from the claimant, as I have said, by direction of the Treasury on 29 April 2010, only applies where the Treasury have reasonable grounds for suspecting that the person in question is involved in acts of terrorism or is controlled by or acting on behalf of another designated person.  No doubt as of 29 April 2010 the Treasury was not so satisfied in the claimant's case.
38.	For all these reasons, I would dismiss this application for judicial review.
39.	MR JUSTICE OWEN:  I agree.  I recognise, as was acknowledged by Mr Swift, that there may be wholly exceptional cases in which it might be possible for the subject of notification requirements under part 4 of the 2008 Act to demonstrate that he no longer presents a risk of commission of further terrorist offences.  But, for the reasons given by my Lord, Lord Justice Laws, neither the existence of such a possibility, nor the absence of any mechanism for review, serve to render the provisions disproportionate to their legitimate aim.  
40.	It follows that I too would dismiss this application.
41.	MR SWIFT:  My Lord, on the question of the date of expiry.  
42.	LORD JUSTICE LAWS:  Yes, please.  Thank you.
43.	MR SWIFT:  I am in a bit of difficulty.  I see the point that you are making; if you look at the provisions of the Act it looks like one would end up with an end date in early February 2019.  
44.	LORD JUSTICE LAWS:  Yes.
45.	MR SWIFT:  But the end date that has been confidently asserted, both in my grounds and skeleton argument, takes its starting point at 1 October 2009, which was the first application of the Act to Mr Irfan.
46.	LORD JUSTICE LAWS:  That is not what the statute requires.
47.	MR SWIFT:  Well, my Lord, looking at the provisions of the statute as I see them, I agree one gets to a date in February.  However, what I am slightly anxious about is I have not overlooked some commencement provision that might impact on when the period starts to run, or when it is deemed to start to run in respect of somebody who it was dealt with for the offence before the commencement of part 4.  
48.	My Lord, I do not have a client in court either to ask the question, could I have the opportunity just to see if there is any relevant commencement provision, one way or the other, that would alter the conclusion that otherwise the expiry of the notification period is some point in February 2019? 
49.	LORD JUSTICE LAWS:  I would certainly wish to accommodate you.  The difficulty is that I shall then certainly forget to tell the shorthand writer what date to put into the transcript.  We will have to find some way of dealing with that.
50.	MR SWIFT:  I can make sure I tell Mr Otty and between us we will avoid a senior moment.  Or he will, if I do not. 
51.	LORD JUSTICE LAWS:  What I will do is I will ask the shorthand writer to put in the date 4 February 2019 -- that is the date the statute seems to suggest -- where I am dealing with the expiry of the notification requirement.  
52.	MR SWIFT:  Yes.
53.	LORD JUSTICE LAWS:  If it turns out that date is wrong, you can send me a note or when you get the transcript you can then ask me to correct it and I will, of course, correct it.
54.	MR SWIFT:  Thank you, my Lord.
55.	LORD JUSTICE LAWS:  We will put the February date in for the time being.
56.	MR SWIFT:  Thank you.  
57.	My Lord, the other matter is costs.  I do not know whether the claimant is in receipt of Legal Services Commission funding or not but, regardless of that, could I make an application for costs.  Obviously if he is and he has the benefit of LSC funding, it will be the order in the form that it is not enforced without further order. 
58.	LORD JUSTICE LAWS:  Yes.  When we were boys it used to be called a football pool order, a long time ago.
59.	MR SWIFT:  Whether the pools have been won depends on the cost -- 
60.	LORD JUSTICE LAWS:  Is it s. 11 of the Access to Justice Act? 
61.	MR SWIFT:  The Access to Justice Act 1999.  
62.	LORD JUSTICE LAWS:  Yes.
63.	MR SWIFT:  My Lord, the effect of it is that this court makes an order simply on the basis of where the cost should be.  
64.	LORD JUSTICE LAWS:  That is right.
65.	MR SWIFT:  How much is actually paid is down to the cost judge and, of course, if the claimant is in receipt of public funding at first instance the cost judge will only make an order for payment, taking into account, firstly, the terms on which the person gets funding and also whether, I think, the absence of an order in favour of my client would cause exceptional hardship.
66.	LORD JUSTICE LAWS:  As far as we are concerned, we just have to know if he has public funding.  If he has, then we make the order in the appropriate form of words.  Do you have legal aid, Mr Otty? 
67.	MR OTTY:  We have, my Lord, yes.
68.	LORD JUSTICE LAWS:  We will make the order.  The Secretary of State to have the costs of the judicial review subject to -- the associate has the appropriate form of words.
69.	Is there anything else?
70.	MR OTTY:  My Lord, I would like, with great respect, to ask for permission to appeal.  It is a matter of importance, as my Lord, Mr Justice Owen, identified in granting permission.  We say we have at least a case with a real prospect of success.
71.	LORD JUSTICE LAWS:  Just to be clear, this would go to the Civil Division of the Court of Appeal and not to the Supreme Court?
72.	MR OTTY:  Yes, it is not -- 
73.	LORD JUSTICE LAWS:  It is quite important.  I think it would, but it is not a criminal cause or matter.
74.	MR OTTY:  It is not, my Lord, no.  It would follow in the same way as F and Thompson went up to the Court of Appeal.
75.	LORD JUSTICE LAWS:  Of course, yes.  Do you want to say anything about that, Mr Swift? 
76.	MR SWIFT:  My Lord, in the circumstances I say we should leave it to the Court of Appeal to decided whether they wish to entertain an appeal on this point.
77.	LORD JUSTICE LAWS:  We do not diminish the importance of the case in indicating, as we do, that we will not ourselves grant leave to appeal.  It may be that the Court of Appeal will think it right that it should be examined there, but we think it is for them to decide.
78.	MR OTTY:  Thank you, my Lord.  I am told I should also, in terms of costs, ask for an order for assessment of our legal aids costs.
79.	LORD JUSTICE LAWS:  Yes, certainly.  To be subject to a detailed assessment for the purposes of the Legal Services Commission.  
80.	MR OTTY:  Yes, my Lord, thank you.
81.	LORD JUSTICE LAWS:  Yes, you can certainly have that, Mr Otty.
82.	We are indebted to counsel for their assistance in this important case.