C D, Re  NIQB 56 (22 May 2008)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND_________QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)________RE AN APPLICATION BY C D________GILLEN J
Background to the Application
C D (“the Applicant”) in this matter is a life sentence prisoner released on licence on 26 April 1996. On 5 March 1997 he was arrested for alleged sexual offences. On 7 March 1997 his licence was revoked by order of the Secretary of State acting in accordance with Section 23 of the Prison Act (Northern Ireland) 1953. This licence remains revoked. On 29 November 2001 Life Sentence Review Commissioners (“the LSRCs”) were appointed to review the correctness of that revocation and the lawfulness of the Applicant’s current detention in accordance with Article 9 of the Life Sentences (Northern Ireland) Order 2001 (“the 2001 Order”). The decision of the LSRCs was given on 3 August 2005 determining that the sexual allegations had been proved and that the risk was such that the Applicant should remain in prison. That decision was unsuccessfully challenged in a judicial review but subsequently quashed by the Court of Appeal in Northern Ireland on 3 August 2005 on the grounds that the Life Sentence Review Commission (“the LSRC”) had misdirected themselves on the standard of proof required. The LSRC subsequently appealed the decision of the Court of Appeal to the House of Lords. That appeal has been heard in May 2008 although judgment has not been given.
 In the wake of the decision of the Court of Appeal, a fresh panel of commissioners was appointed to review the Applicant’s case. A provisional date for that hearing was fixed for 4 January 2008.
 In an affidavit the Chairman of the LSRC Panel (“the Chairman”) appointed to hear this matter set out the background facts as follows:
“3. The present LSRC panel was appointed following the decision of the Court of Appeal in Re CD’s Application (2007) NICA 33, whereby a decision of a previous LSRC panel dated 3 August 2005 was quashed on the basis that the panel had incorrectly approached the issue of inherent improbability, and was wrong to conclude that no higher quality of evidence than normal was required in order to establish that the conduct alleged against the applicant had occurred.
4. This decision was the subject of an appeal (and cross-appeal) to the House of Lords, which was heard on 30 April and 1 May 2008. If this appeal is successful (and the applicant’s cross-appeal unsuccessful) the decision dated 3 August 2005 – by which the LSRC declared themselves clear in their minds that the applicant had committed the grave sexual assaults alleged, and declined to direct his immediate release – will be restored.
5. Two main issues fall to be considered by the present panel:
(i) whether the facts are proved that indicated that, at the date of recall, there was a significant risk of the applicant committing serious harm, and
(ii) whether the risk presently posed by the applicant is capable of being safely managed in the community.”
 The Chairman in his affidavit explained the background of what happened when the case was convened on 4 January 2008 and subsequently reconvened on 12 March 2008 in the following terms in his affidavit:
“9. The matter was first listed for hearing on 4 January 2008. On that date it was indicated to the Panel by the Secretary of State’s solicitor that he intended to call a witness, Dr Griffin, to deal with the forensic evidence relating to the recall allegations and then witnesses who would deal with risk but who had no evidence to offer on the truth or otherwise of the allegations that led to the recall. It was agreed that the witnesses solely as to risk would be heard on the basis of two hypotheses viz that the recall allegations were true or that they were not true. It was agreed by the parties that the lawfulness of the decision to recall the prisoner required to be determined. At no stage was it indicated that the Panel’s evaluation of risk would be made as soon as witnesses called solely on the issue had given evidence, without consideration of all other material in the case.
10. On 4 January 2008, evidence was given by Governor Allenby (Lifer Management Unit) and Dr Byrne (Senior Psychologist, HM Prison Maghaberry). It is correct that these witnesses indicated views on the question of present risk that were not dependent upon the determination of whether the conduct grounding recall had occurred.
11. On 11 March 2008 evidence was given by Mr McEvoy (Probation Board for Northern Ireland). ….
12. It should be recognised that Mr McEvoy made clear his view that the assessed risk of harm was affected by the applicant’s denial of the conduct grounding recall, and further that his views on the safe management of risk in the community were predicated on a ‘tight package of supervision’ measures, a number of which were predicated on the basis that the conduct grounding recall had occurred.”
 On 25 January 2008 the Applicant’s solicitors had written to the Northern Ireland Prison Service asserting that on the basis of the evidence of Governor Allenby and Dr Byrne the Applicant did not pose a significant risk of serious harm on release to the community and could be safely managed there subject to appropriate supervision measures. Accordingly it was argued that the LSRC could reach a conclusion that there was no significant risk without there being any plan for supervision/release and that any further delay in determination of the case would be unlawful and in violation of Article 5(4) of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) .
 On 11 March 2008 the Applicant’s solicitors again corresponded with the LSRC stating, inter alia:
“We refer to our letter of 25 January 2008 in which we asked that the Secretary of State have a full and particularised schedule of supervision/resettlement measures set out together with the assurance that these measures can be implemented as and when the LSRC might direct a licence.”
 On 13 March 2008 the Applicant’s solicitors wrote to the LSRC again setting out the principles which they relied on at the hearing. That letter repeated their assertions that whilst the Panel might not have dealt with the outstanding sexual allegations the prisoner could be safely managed in the community now on the basis of the current risk assessment. Even on the assumption that the sexual allegations are true he cannot be made to wait upon his licence pending the Panel’s conclusion on the sexual allegations.
 In correspondence of 20 March 2008 the LSRC replied as follows:
“The Panel have considered your letter of 13 March and have asked that I reply to it. This case was referred to the Commissioners by the Secretary of State under Article 9(4).
Para. 9(5) provides that where on a reference under para. 9(5) the Commissioners direct the immediate release of a life prisoner under this Article, the Secretary of State shall give effect to the direction.
Para. 9(5)(a) provide that the Commissioner shall not give a direction under (5) unless they are satisfied that it is no longer necessary for the protection of the public from serious harm that the prison be confined.
The Panel are aware that they have not heard all the evidence available in this reference.
The Panel consider that it is not possible for them to reach a decision at this stage.
The Panel believe that they are required to hear all the evidence available so that they can come to a decision:
(a) whether to direct the release of C D or not, and
(b) If his release was to be directed what licence conditions should be imposed on C D to ensure the protection of the public.
The Panel would ask that the legal representatives of the parties contact the Secretariat to arrange a further hearing date as soon as possible.
A copy of this letter is being sent to the Northern Ireland Prison Service on behalf of the Secretary of State.”
 Against that background the Applicant now seeks leave for judicial review of the decision taken by the LSRC given on 20 March 2008 (“the impugned decision”). The Applicant seeks an order of mandamus requiring the LSRC to come to a decision on the question of the Applicant’s licence, a declaration that the detention of the Applicant since 12 March 2008 is in breach of Article 5(1) of ECHR and, by way of an amendment to the application, a declaration that the handling of the applicant’s referrals by the LSRC of 12 March 2008 is unlawful and in breach of Article 5(4) of the Convention.
Grounds for granting leave
 At the leave stage in judicial review the judge needs to be satisfied that there is a proper basis for claiming judicial review. It is wrong to grant permission without identifying an appropriate issue on which the case can properly proceed. It is neither enough that the case is potentially arguable nor that the papers disclose what on further consideration might turn out to be an arguable case. In order to establish an arguable case at the leave stage the Applicant must show he has a realistic prospect of success – a real or sensible prospect of success.
 I have come to the conclusion that the Applicant has not demonstrated an arguable case in this matter and hence I have decided to dismiss the application. My reasoning is as follows.
 I consider this application is premature. The LSRC has not been afforded the opportunity to hear all the relevant evidence in this matter. I find very compelling the assertion of the chairman in paragraph 16 of his affidavit that “it is simply not possible for the LSRC to properly address the possibility of release on licence subject to conditions without having determined whether the conduct grounding recall occurred”.
 I am bound to say that even without the account of the evidence of Mr McEvoy given in Judge Rodgers’ affidavit, I would have found it almost incomprehensible for a distinguished body such as the LSRC to be able to complete its statutory task without hearing all the relevant evidence including the assessed risk of harm in light of whether or not the conduct grounding recall had occurred. It seems to me that it is self-evident that the evidence given by Governor Allenby and Dr Byrne would need to be contextualised against the conduct grounding recall and the Applicant’s attitude to it if it was established that such conduct had occurred. His continued denial might well have a very substantial impact not only on an assessment of his sincerity and resolve to be deflected from further offences but also on the assessed risk of harm and the conditions that might be imposed upon him in the event of him being released. I fear that public opinion might not be easily assuaged in the wake of re-offending if a release had been countenanced without a decision being reached on the conduct grounding recall.
 More importantly, that is the gravamen of the view expressed by Judge Rodgers on behalf of the LSRC. This Tribunal is made up from an extremely experienced panel of Commissioners with a wealth of background knowledge and expertise for example in law, psychology and offending behaviour. Thus when the LSRC has indicated that it considers itself unable to come to a determination in the absence of all the evidence which it was scheduled to hear, and which will be completed in the near future on 21 May 2008 and 27 May 2008, this court should tread cautiously before intervening to impose a decision upon it. In truth the task which the LSRC has undertaken can be a complex and unpredictable process which forbids accurate measurement until all the evidence has been assembled and considered. A careful panel will be slow to take shortcuts In coming to this conclusion therefore I rely not merely only upon my own assessment of the situation, but rather upon the experienced view of the chairman on behalf of the LSRC members. As Judge Rodgers has said, the taking of evidence out of order on this case is not unusual and should not alter the nature of the overall deliberations to be made and the evidence to be called. I find any contention to the contrary in this case to be unarguable.
 I observe in this context that the concept of satellite litigation is one that has not infrequently been the subject of judicial comment. In O’Connor and Broderick’s case (unreported WEAC5260 27 May 2005) Weatherup J considered satellite litigation. He referred to the leading case of R v Director of Public Prosecutions ex parte Kebilene(2000) 2 AC 326 where the House of Lords dealt with the decision of the DPP to consent to a prosecution. In that case Lord Steyn stated at page 371:
“While the passing of the [Human Rights Act 1998] marked a great advance for our criminal justice system it is in my view vitally important that, as far as the courts are concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal. The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings. Such satellite litigation should rarely be permitted in our criminal justice system. In my view the Divisional Court should have dismissed the respondents’ application.”
 Where Parliament has appointed experienced experts such as the LSRC to make factual determinations on matters of public interest and public safety I consider that satellite litigation should be discouraged until their determination is finalised save in exceptional circumstances. The legislature has clearly intended that this tribunal with specialised knowledge of the subject matter is the best way for finding facts and making determinations in the context of prisoners such as the Applicant. Whilst such tribunals should be open, fair and impartial, normally judicial review will only be appropriate at the conclusion of those findings. I do not consider that this is one of those exceptional or rare instances where the court should intervene before the LSRC has made its determination on the basis of all the evidence it considers to be relevant and necessary. I am not persuaded that any fundamental principle of law or justice would be offended of any unfairness perpetuated by awaiting the final decision of the LSRCs.
 I view the assertion by Mr Hutton, who appeared on behalf of the Applicant, that the Commissioners were taking into account a test introduced into legislation by the Criminal Justice (Northern Ireland) Order 2005, when the present proceedings pre-dated that order, in the same category. There is still ample opportunity for that issue to be addressed to the LSRCs before they make their final determination. Any preliminary view which they may have expressed is still open to counter-submissions on the part of the Applicant and his legal advisers. Accordingly I find it unnecessary to make any determination at this stage whether or not there is any weight to the proposition that Article 9(5)(a) of the Life Sentences (Northern Ireland) Order 2001 (NI 2) (Recall of Life Prisoner on Licence) (an amendment inserted by Article 9 of the Criminal Justice (Northern Ireland) Order 2005) should or should not apply in this instance. I am satisfied that that matter has not yet been finally determined by the LSRC. In the event of such a determination being made at the end of the case, then the Applicant can seek an appropriate remedy if it is deemed prudent to so do.
 Article 5(4) of the Convention reads as follows:
“Everyone who is deprives of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.”
Under Article 5(1) of the Convention no one shall be deprived of liberty save in the certain cases and in accordance with a procedure proscribed by law.
 I find no basis upon which there is an arguable case that the Applicant’s rights under Article 5(4) of the Convention have been breached. It is clear to me that the LSRCs do not yet have all the relevant material before them to determine the lawfulness of the current detention and to provide the Applicant at this stage with a speedy determination of issues before them. While circumstances have prevented this case proceeding with the expedition that normally attends upon such cases, the evidence as a whole before me demonstrates that the delays have been necessary and purposeful. In those circumstances I find it unarguable that there is evidence that the current detention represents an arbitrary detention contrary to Article 5(1) of the Convention.
 In all the circumstances therefore I dismiss this application for leave to bring judicial review.