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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stevenson, R (On the Application Of) v Secretary of State for Justice [2015] EWHC 1014 (Admin) (18 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1014.html Cite as: [2015] EWHC 1014 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		18 March 2015

1. MR JUSTICE JAY: On 14 August 2013, David Stevenson, the claimant, issued an application for judicial review in relation to decisions of the Governor of Her Majesty's Prison Wakefield and the Secretary of State for Justice (whom I shall refer to collectively as "the defendants") that he remain incarcerated at Her Majesty's Prison Wakefield. The decisions under formal challenge were made on 24 June and 1 July 2013, and have been subsequently maintained. Permission to apply for judicial review has been granted on one sole ground, namely that the defendants' decisions failed to pay proper regard to the claimant's Article 8 rights.
2. The essential factual background to this application is as follows. The claimant, who was born in 1966, was a man of previous good character who had served in the army, including in Northern Ireland. It appears from the evidence that he served there in the 1980s, which one knows was a difficult period. On 9 February 2005, he was sentenced to life imprisonment for the offence of murder following his conviction at trial, with a minimum term of 19 years less time served on remand. The claimant murdered a masseuse, Angelia Chiu, at her home. The claimant's DNA was found at the scene and money was stolen. The claimant admitted sexual intercourse with Miss Chiu on the day of the murder but has always denied his guilt.
3. The claimant's mother Elizabeth lives in Poole, Dorset. I have not been told her date of birth, but its latest possible date is 1948 or 1949. The claimant's sister lives with her mother in Poole, or at any rate lives in the same town, it matters not. Other more distant family members live in the south of England. I understand that the claimant's brother lives in Canberra, Australia. He is divorced from his wife, whom he married in 2001, but his stepdaughters and step-granddaughters also live away from the north of England, as do all his friends.
4. The claimant was originally imprisoned at Her Majesty's Prison Winchester until March 2006. The reasons for the transfer are not clear. What is apparent from the evidence is that in many ways the claimant has been a model prisoner. He has enhanced status and is assessed to be of low risk to fellow prisoners and staff. On the other hand, in relation to the outside world, if I may put it in those terms, the claimant has been assessed to be of high risk to "a known individual".
5. It seems clear from the evidence, drawing sensible inferences where appropriate, that the claimant has some difficulties of a psychological nature. It is unnecessary to dwell on these, but they include possible post traumatic stress disorder. Further, there are issues concerning the claimant's sexual pre occupations.
6. I have not been taken to all the available documentation generated since 2006, but I take up the story in 2012. Mr Philip Rule, acting for the claimant today, placed reliance upon the notes of a sentence planning and review meeting which took place on 25 July 2012. Before that meeting, the claimant's then solicitors advanced a case under Article 8 of the Convention. Although it no longer strictly matters for the purposes of this application, I do consider that the attention given in July 2012 to the Article 8 claim was inadequate.
7. On 11 June 2013, there was a Sentence Planning and Review Board at which, on my understanding, the claimant's categorisation and allocation were reviewed. It is to be interpolated that the claimant has, I believe, always been a Category B prisoner, or at least certainly has been in that category since 2012; the precise timing does not matter.
8. Since March 2006, the claimant has been held within the high security estate, and Her Majesty's Prison Wakefield is of course within that estate. I have been told by Mr Rule that this prison holds both Category A and Category B prisoners. In June 2013, a short term objective was set that the claimant engage in assessments for the RESOLVE Programme, and to complete the programme if suitable. This programme is designed for men who have a potentially complex set of treatment needs, underpinning their risk of future violent crime.
9. Given that the claimant has consistently denied his guilt, and given also the absence of previous convictions for violence or anything else, it seems clear that he was an unsuitable candidate for the RESOLVE Programme. The defendants now accept this. However, the inappropriateness of the short term objective set in June or July 2013 undermined the defendants' decision making process at this stage, and has given support to the claimant's case that he has been wrongly allocated.
10. Following the issue of judicial review proceedings in August 2013, the defendants filed summary grounds of defence in which they indicated that they decided to hold a further Sentence Planning and Review Board on 19 December 2013 -- in effect, an extraordinary SPRB -- to review the claimant's sentence plan in view of its decision that RESOLVE was not a legitimate short term objective. On 19 December 2013, the SPRB confirmed the decision in that respect, but contended that the claimant was appropriately allocated at Her Majesty's Prison Wakefield, because that establishment meets his needs and he received regular visits from family and friends.
11. On 22 January 2014, the claimant filed revised grounds of claim. These did appear to challenge the December 2013 decision, and maintained the argument that his continued incarceration at Wakefield violated his Article 8 rights. There were further pleadings in the litigation which it is unnecessary to address. On 1 October 2014, Her Honour Judge Walden-Smith granted permission limited to the Article 8 point. The defendants were required to file detailed grounds of defence by 26 November 2014 (that was following an extension of time), but they failed to do so. These detailed grounds only arrived, and without any supporting evidence, on 17 March 2015, accompanied by the appropriate apology.
12. At the outset of this hearing, there was some debate as to whether and to what extent I should pay any regard to the detailed grounds at all. Mr Rule took an entirely sensible stance and submitted that I could have regard to the grounds insofar as they raised points of law and submission based on the material which was already available. However, he submitted that it would not be remotely appropriate for the court to consider the evidential matters which are alluded to at various points in the detailed grounds of defence; in particular, at paragraph 5.9.1 and following.
13. In my judgment, Mr Rule's objections were well founded, and I put Miss Walker to her election: either she would have to abandon any evidential point made in the detailed grounds of defence, or she would have to apply for an adjournment with certain Draconian costs consequences and the high possibility that I would have rejected the application in any event. It is extremely unfortunate that the detailed grounds of defence come so late, and it is also unfortunate that matters are set out in the grounds which really should have been substantiated by evidence put in in time.
14. Having considered the matter over the short adjournment, Miss Walker too took a pragmatic line -- after all, none of this was her fault -- and following advice to her client, she submitted to me that I should put a notional blue pencil through everything in the detailed grounds which amounted to evidence. I probably would have done that even if the detailed grounds of defence had been served in time, since evidential matters should not be included in a pleading of this sort.
15. So the matter proceeded before me on the basis of the claimant's evidence, whatever reasonable inferences might be drawn from that evidence, and the parties' submissions.
16. Returning to the chronology, in July 2014, the claimant had a meeting with a psychologist. My attention has been drawn to her notes of the meeting and to the range of options which were available at Wakefield Prison. It is necessary to make some reference to those. In relation to what were described as stress responses, the psychologist suggested that stress management was available through the gym, self help materials, and IAPT. I am unaware as to what that is an acronym for. As regards emotional expression, it was suggested that there might be "out of session" guided work provided through AIC. In relation to post traumatic stress disorder, it seems that a local Mental Health Team was involved, and that the claimant had current contact with someone whom I will identify only as JB. This individual was "working on this area". I understand that the MHT, the Mental Health Team, was not formally part of Wakefield Prison. Finally, in relation to sexual preoccupation, it was pointed out that this was available through mainstream sex offender interventions, but given that the claimant maintained his denial of guilt, he was currently ineligible.
17. According to the psychologist:

i. "At present, I would assess that David's motivation and readiness to engage is low -- he appeared primarily focussed on wanting someone to take the problem away and progress him, but is unwilling to commit to any of the options that are available to him."

18. No doubt aware of the fact that this meeting had not been particularly helpful to his interests, it seems that the claimant changed stance. On 26 August 2014, he applied to access emotional expression out of session work. He was then placed on a waiting list. Additionally, a self-referral for IAPT was passed on to the Mental Health Team. This did not amount to any admission of guilt, but, whether entirely genuine or not, it was an attempt to begin to engage with the process.
19. On 1 October 2014, the defendants prepared a sentence plan addendum, which no doubt was designed in part to be considered at the next review meeting. Miss Walker made that available to me yesterday, but notwithstanding its lateness, I take it into account. In truth, the principal part of the sentence plan reflects the psychologist's notes of July 2014, which I have already referred to.
20. On 22 December 2014, the claimant's annual sentence plan review meeting took place. It was noted that the claimant had met all the targets set in December 2013. Plainly that is an important point in his favour. The claimant's attitude remained good, and he had no recorded adjudications against him. It was also noted that the claimant was receiving no visits.
21. Given that it is this decision which lies at the centre of this application, I set out the relevant sections of the meeting notes:

i. "Offender's perspective on progress.

ii. "Mr Stevenson feels he has made some progress with his sentence plan targets this year. With the help from his legal team he has been given a judicial review on previous sentence plan targets and allocation. He feels now he has been given the opportunity to do some work with psychology to evidence risk reduction whereas previously he felt he was not offered any avenue to progress through his sentence.

iii. "Mr Stevenson told the board that he has applied to AIC to begin the 'out of session' work but has not had a date to start yet. This is because there is a waiting list and Mr Stevenson has not been called forward yet.

iv. "Mr Stevenson told the board he has also been having monthly meetings with his caseworker from the Mental Health Team to talk through his PTSD. He said that he had identified ten situations that he feels were traumatic to him and they discuss these with the help of work sheets. It has taken six months to work through the first situation so Mr Stevenson is well aware there is many more months of work to achieve all ten. He has been referred to a mental health unit at a military base in Nottinghamshire. Mr Stevenson is not yet aware what help he will receive from this referral. Mr Stevenson feels that he cannot progress qualification wise any further with the hospitality and supervisory course. He has completed level 3 and has been told there is no funding available to complete level 4.

v. "Mr Stevenson enjoys his work in the workshop and finds this a protective factor for him whilst he is in custody.

vi. "Mr Stevenson's treatment needs were considered alongside Article 8 of the ECHR, the right to family life. He mentioned that he is now settled at HMP Wakefield, he knows the staff and they know him, he enjoys his work and now that it looks like he is getting the help he requires with psychology that he says he is not pushing a transfer to another prison. He would prefer to have accumulated visits at a prison like HMP Albany or HMP Parkhurst so his family could visit him. Whilst he is at HMP Wakefield Mr Stevenson says he does not receive any visits as the distance is too far.

vii. ...

viii. "Offender supervisor review comments.

ix. "Mr Stevenson attended his sentence plan board and we were joined on the telephone by his Offender Manager Maggie Worth.

x. "We discussed last years' targets and the fact that he had achieved all of them. We also discussed the recent judicial review and the understanding Mr Stevenson had of the outcomes. Mr Stevenson is happy with the new sentence plan targets and explained that he had given Jane Read, the Head of Psychology at HMP Wakefield, access to his mental health file so that the departments could work together more effectively in setting objectives for him.

xi. "Mr Stevenson mentioned that his legal team are still perusing a transfer to a prison closer to his family. Mr Stevenson mentioned that he does not telephone his family because it is difficult to catch them when they are not busy. I suggested he could arrange a convenient time even if it is only monthly to keep his family ties intact.

xii. "Consideration was given to Article 8, Mr Stevenson's right to family life under the ECHR Act. The board discussed the positive and negatives of Mr Stevenson transferring to another Category B prison down south and Mr Stevenson acknowledged the work that he was being offered here would not necessarily be as easy to access elsewhere. This was also confirmed by Maggie who explained she was not aware of any other prison which was offering the kind of work with psychology that was currently on offer at HMP Wakefield.

xiii. "Mr Stevenson was happy with all targets set and it was explained a transfer was not recommended on this review as there was real positive work Mr Stevenson could achieve at HMP Wakefield."

22. Further sentence planning targets were set for the following year. The board made the decision, or recommendation, that the claimant remain at HMP Wakefield "as there is suitable work for him to complete here". It was also recommended that he remain Category B. The claimant was reminded of the possibility of making a formal complaint, and on 14 January 2015, he availed himself of that opportunity. He said that his stay at HMP Wakefield is not justified and that his views were being misrepresented. The whole of his handwritten letter is of course relevant, but for the purposes of this judgment, I propose to set out just two paragraphs.

i. "I will freely admit since I have acquired more diligent legal representation, finally after seven years HMP Wakefield are willing to investigate and if necessary treat my PTSD condition. They are finally willing, they say, to offer me targets they claim will reduce my risk level. This attitude change has meant I am more settled now on the wing and at my place of work.

ii. "However, due to my continued location I am still a long distance from my family and support network based in the Portsmouth area. I had hoped accumulated visits would prove to be agreeable to both parties as an alternative solution, but representatives of the Secretary of State for Justice refused this application. This means I receive no visits, as recorded on page 3 of SPMR, 22 December 2014, under heading 'Custodial Behaviour'."

23. The claimant also made the point that he had been placed on a waiting list in relation to various informal or "out of session" psychological interventions, but he was not optimistic that he would ever rise to the top of the list.
24. As for the claimant's argument that his stay at HMP Wakefield is not justified, that is the very issue I have to resolve in this application for judicial review. As for his second limb, that his views were being misrepresented, it seems to me that I have to resolve this issue on the available material. Indeed, in the absence of any application for cross-examination, the notes of the SPMR are really to be taken at face value. I should add that it is possible to harmonise those notes with the claimant's criticisms; the differences are more of emphasis than nuance.
25. Strictly speaking, this application for judicial review must be against the latest decision, namely that given on 22 December 2014. This is not quite how the claim has been advanced, because Mr Rule contends that all these decisions occupy different places on a continuum or spectrum. Many of the facts relied on by the claimant and referred to in Mr Rule's skeleton argument travel over the history, but much has been superseded. In my view, it is necessary to focus on the current situation, although I do have regard to the stance the defendants have taken in the past. This is relevant background, particularly in circumstances where, as Mr Rule reminds me, the same decision maker featured in 2013 and 2014.
26. The claimant's short witness statement dated 30 September 2014 does not address the latest decision. He takes care to inform the court of the difficulties encountered by his ex-wife in undertaking visits, and how this caused or contributed to the breakdown of their marriage. Whether or not that is right, it seems to me that it is metaphorical water under the bridge.
27. At paragraph 5 of his witness statement, the claimant explains:

i. "I have four different groups of people who have visited me in the last year. I believe my family would visit me more should I be allocated to the south of England."

28. Reference is made to the individuals concerned, in terms of their "groups", and in that context, the claimant points out that in the last year he had two visits from his brother, his wife and his mother. It is reasonable to draw the inference that these took place on the same occasion. Other family members have visited, and there was another visit involving his cousin Tracy, his aunt Eve and his mother.
29. The claimant makes a specific comment about whether HMP Belmarsh is suitable for the purpose of "accumulated visits," but says nothing about the difficulties attending travel from the south of England to West Yorkshire. It is pointed out, to be fair to the claimant, that his mother:

i. " ... has a very poor memory and she panics during long journeys."

30. On the other hand, there is a paucity of evidence in relation to the mother and the circumstances in which the two visits referred to at paragraph 5(v) of the claimant's witness statement took place.
31. In relation to accumulated visits, I should point out that his applications for those were declined in 2011 and 2012. The claimant has not applied for visits at Her Majesty's Prison Belmarsh owing to the travel difficulties.
32. I turn now to address governing law. The primary focus of the claimant's assault on the defendants' decision making process is Article 8 of the Convention, which Mr Rule submits affords his client "stronger protection" than domestic law. Relevant domestic law is to be found in Rule 4 of the prison rules and paragraph 4.9.1 of the ISP manual, PSO4700. I agree with Mr Rule that if he cannot succeed under Article 8 he could not succeed otherwise under domestic law.
33. The first issue which arises is as to the level of interference which has to be established before Article 8 is engaged; in other words, has potential application. The leading authority on that issue is the decision of the European Court of Human Rights in Vintman v Ukraine [2014] ECHR 28403/05. In that case, the applicant was incarcerated many hundreds of kilometres away from his elderly mother. There had been no visits for ten years and the journey across Ukraine was lengthy and inhospitable. At paragraph 78 of its judgment, addressing the question whether there was an interference with the applicant's rights under Article 8 of the Convention, the court said this:

i. "The court has also held in its case law that the Convention does not grant prisoners the right to choose their place of detention, and the fact that prisoners are separated from their families, and at some distance from them, is an inevitable consequence of their imprisonment. Nevertheless, detaining an individual in a prison which is so far away from his or her family that visits are made very difficult or even impossible may in some circumstances amount to interference with family life, as the opportunity for family members to visit the prisoner is vital to maintaining family life ... It is therefore an essential part of prisoners' right to respect for family life that the prison authorities assist them in maintaining contact with their close family."

34. Mr Rule rightly submits that if Article 8.1 is engaged in this case, then the exercise to be undertaken at the Article 8.2 stage is in effect two pronged. The questions are in effect whether the claimant's location in a particular prison is necessary for a legitimate aim and is proportionate. There is some issue as to the threshold which applies to these considerations, and whether this court applies in essence a test of "exceptional circumstances". Some support for that approach is to be derived from the decision of the European Commission of Human Rights in the elderly case of PK, MK & BK v United Kingdom, 19085/91.
35. In my judgment, there is no test of "exceptional circumstances". The correct analysis is derived from cases in the House of Lords, such as Huang, is that this expression is being used in a sort of predictive or indicative manner to indicate that in practice it will only be very rarely in a prison context such as this that Article 8.2 considerations will not outweigh Article 8.1 private or family life. This is the point which Dyson LJ made in R (on the application of Shaheen) v Secretary of State for Justice [2008] EWHC 1195 (Admin) at paragraph 37.
36. It seems to me in this context that I should have regard to these additional considerations: first, the context of incarceration cannot be ignored. It is not just in my judgment a background circumstance. Dyson LJ made that point at paragraph 40 of his judgment in Shaheen, and we see similar reasoning in the judgment of the Court of Appeal, Lord Phillips MR presiding, in R (P & Q) v Secretary of State for the Home Department [2001] 1 WLR 2002. On the other hand, the obvious consequences which flow from the fact of incarceration should not be overstated. The reasonable requirements of prison organisation and security are no doubt important, but the issue of justification, that is to say necessary for achieving the legitimate aim of proportionality, must be carefully considered in all these cases.
37. Further assistance on the exercise to be undertaken in relation to proportionality may be derived from paragraphs 100 to 102 of the judgment of the European Court of Human Rights in the case of Vintman. I do not set those out in this judgment, but I do note that on the facts of that case, the court was critical of the absence of evidence adduced by the Government of Ukraine to justify Mr Vintman's location of imprisonment.
38. Mr Rule submitted first of all that Article 8 was engaged in this case because there is sufficient evidence as to the difficulties encountered by family members in visiting the claimant so far from home. Reasonable inferences, he submits, should be drawn from the available material, including the point attributed to the claimant himself in the notes of the meeting which took place on 22 December 2014, that:

i. "Whilst he is at HMP Wakefield, Mr Stevenson says that he does not receive any visits as the distance is too far."

39. So, submits Mr Rule, the Article 8.1 threshold has easily been surpassed in the particular circumstances of this case.
40. In relation to Article 8.2, Mr Rule made a series of detailed and effective submissions directed to the review decision given on 22 December 2014. Those submissions may be grouped under a number of headings. Putting Mr Rule's strongest point first, he submitted that far too much emphasis was placed on the possibility that effective psychological assistance could be given to the claimant at Wakefield Prison. There was no evidence as to when it might be proffered. He was, after all, merely on a waiting list. There was no evidence that it could not be provided elsewhere. It followed, submitted Mr Rule, that there was an insubstantial evidential foundation for the point that this was a factor which could properly outweigh the powerful Article 8 issues which obtained. It was a feature of Mr Rule's submissions at this stage and elsewhere that it really was incumbent on the defendants to adduce proper evidence rather than submission in support of the decisions they took.
41. Secondly, the point is made that the decision given on 22 December 2014 does not deal adequately with the point about accumulated visits.
42. Thirdly, in his complaint document dated 14 January 2015, the claimant arguably has gone further than the defendant in explaining possibilities of psychological assistance elsewhere, at locations far closer to where his family are located.
43. Finally, the point is made that the claimant in any event should not be held within the high security estate, because all the evidence indicates that he is at low risk. Mr Rule during the course of his submissions took me to documents which show, as I have already pointed out, that save in relation to one individual, the claimant's risk was low and was consistently low in the context of a prison environment.
44. Overall, it is Mr Rule's submission that the decision maker paid lip service to Article 8 -- although family life is mentioned in the decision -- and it is noteworthy that the same Miss Arnold has featured throughout the recent chronology.
45. The first issue I need to address is whether the Article 8 threshold has been transcended, applying the test specified at paragraph 78 of the judgment of the European Court of Human Rights in Vintman. The facts of that case were truly exceptional, and no doubt of particular concern. Having said that, the legal test is whether visits are made "very difficult or even impossible", such that in all the circumstances family life has been violated.
46. Miss Walker points out that there is scant evidence on the claimant's side. The position in relation to his mother is unclear, and we know little about her age and/or state of health. It is reasonable to draw the inference that on the three previous occasions referred to at paragraph 5(v) of the claimant's witness statement, the claimant's mother was able to travel to Wakefield with the assistance of other close family members. Although we have an assertion by the claimant that there may or would be more visits if he were located closer to his support network and familial links, there is nothing from the family members themselves to support that proposition.
47. Furthermore, it is quite difficult to draw inferences relating to what has been attributed to the claimant at the critical meeting held on 22 December 2014. Whereas in late September 2014, the claimant was saying that he had received a number of visits over the previous year, over the 12 or 13 week period which intervened before 22 December 2014, there were no visits. The claimant's assertion that "the distance is too far" is somewhat contradicted by the fairly recent history. On any view, submits Miss Walker, the court should be very careful in drawing inferences favourable to the claimant.
48. In my judgment, this case is fairly finely balanced, given the common sense inferences which I am able to draw as to the distance between Poole in Dorset and Wakefield in West Yorkshire. However, the instant case is a considerable distance away, in all senses of that term, from the facts of Vintman. The decision of the European Court of Human Rights in that case should not be understood as holding that the facts need to be so extreme before a breach of Article 8 may be found, but I have to continue to focus on paragraph 78, and the issue of whether the visits are made "very difficult or even impossible" by the location of the claimant's incarceration.
49. Overall, and in particular having regard to the way in which the claimant's case appears to have evolved on 22 December 2014, I conclude, albeit with a modicum of hesitation, that he has failed to demonstrate a breach of Article 8. That, I emphasise, is not a robust conclusion, but one which I am driven to reach on the balance of probabilities, having regard to all the available evidence.
50. Given that conclusion, and in any event, it remains appropriate to consider the Article 8.2 considerations which were the centrepiece of Mr Rule's argument. He has presented his client's case very clearly and effectively, and in the crucible or cockpit of oral argument, his best points have emerged.
51. Let me deal first with what I consider to be his weaker points. I do not accept that it is effectively open to the claimant to dispute in these proceedings the fact that the defendant has taken the view that the claimant must remain within the high security estate. That conclusion is supported by page 63 of the bundle, a document dated June 2013, and which I cannot ignore. It was never part of the claimant's express pleaded case that he should not be within the high security estate. The gravamen of his case has always been that he should not be at Her Majesty's Prison Wakefield. It seems to me that if the claimant wished to mount an attack on that aspect of the matter, he needed to say so specifically, and he has not.
52. Secondly, whereas the position in relation to accumulated visits has not been altogether satisfactory in the past, the claimant's reason for not applying for such visits at HMP Belmarsh is not particularly convincing. But regardless of that observation, the claimant's current position, as at 22 December 2014, and not subsequently contradicted in his complaint document dated 14 January 2015, is that "he would prefer to have accumulated visits at a prison like HMP Albany or HMP Parkhurst so his family could visit him." I do not understand the claimant to have made any formal application for accumulated visits on that basis, but were he to make one, no doubt it would have to be considered.
53. Returning to the claimant's best point, which relates to the position regarding psychological support at Wakefield, it is true that the evidential position is not altogether satisfactory. On the other hand, there are indications that the claimant is making some progress in this regard at Her Majesty's Prison Wakefield. For example, there have been monthly meetings with a caseworker with the Mental Health Team to "talk through" his post traumatic stress disorder. That is something which appears to have been referred to at the July 2014 meeting with the psychologist.
54. Furthermore, the board considering the claimant's case on 22 December 2014 paid express attention to the possibility of psychological input being offered elsewhere. The board appeared to have thought that this was not a particularly fruitful way forward, and, "Mr Stevenson acknowledged the work that he was being offered here would not necessarily be as easy to access elsewhere." The offender supervisor interjected an observation which gave support for those caveats.
55. Finally and most importantly, the claimant did tell the board, or appears to have told the board, "that he is settled at HMP Wakefield." He was certainly giving them the strong impression that, regardless of the position he was taking in these proceedings, his preference was to remain there, with the possibility of accumulated visits at the other prisons I have mentioned. I do not read the complainant's complaint letter as suggesting otherwise, but as I have already pointed out, on an application for judicial review, it is difficult in a case of this sort for primary findings of fact to be reached contrary to the defendants' own documents.
56. Mr Rule's strongest point remained that it could certainly be said that detailed configuration fortified by evidence was not clearly given to the possibility of pursuing options much closer to the south of England.
57. In my judgment, one does need to stand back from this decision and consider the context in which it is made. These decisions are not to be scrutinised with the sort of care which would be appropriate to decisions reached in other contexts. The decision maker needs to demonstrate in a case such as this that proper attention has been made or given to the relevant issues and that the matter has been weighed and considered.
58. Recognising as I do the forensic force in Mr Rule's submissions, I cannot conclude that he has demonstrated a legal flaw in the defendants' decision making process which falls to be corrected on an application for judicial review. Miss Walker has persuaded me that the Article 8.2 balance was undertaken against the background of a case whose merits were far from overwhelming. The matters set out in the claimant's own witness statement as to the visits which had taken place over the year before 30 September 2014 seem to me to weigh against the claimant's position.
59. Accordingly, and notwithstanding the realistic, clear and effective way in which this case has been presented by the claimant, and indeed by the Secretary of State, I am driven to dismiss this application for judicial review.
60. MR JUSTICE JAY: Miss Walker.
61. MISS WALKER: My Lord, yes, there's an application for costs. I have just been handed the statement of costs, so it won't have been -- I'm about to give it to Mr Rule, but --
62. MR JUSTICE JAY: The Act applies to this, he has the benefit of legal funding, so doesn't the usual order apply, whichever section it is?
63. MISS WALKER: I'm so sorry, my Lord, could I just take some quick instructions, but I'm assuming that the usual order would be that there would be a detailed assessment and no enforcement without order of the court.
64. MR JUSTICE JAY: Well, it's whatever the usual order is these days, but what I'm going to ask you to do, subject to further submissions by Mr Rule, is to draw up an order which contains the relevant provision. Is it section 26 of the --
65. MISS WALKER: It's LASPO, yes, it's 26.
66. MR JUSTICE JAY: Well whatever it is, but he's never going to have to pay any costs unless he wins the lottery in prison, that's right, isn't it, Mr Rule?
67. MR RULE: My Lord, yes, but may I seek to do slightly better from the claimant's point of view. The original order made dismissing the application by Mr Blair QC sitting as a judge of this court was to make no order for costs, given the late change of the defendants' position. May I encourage the court to take a similar view.
68. MR JUSTICE JAY: Oh, I see.
69. MR RULE: It's plain this case began when the defendants had paid no absolutely lip service to Article 8. The court has now upheld the decision taken in December 2014, which the claimant properly added to the bundle, but of course from the point of view of costs, this claim began in 2013, we gave a letter before action in 2012, and so the opportunity to avoid the costs of these proceedings for the defendant existed, had it applied its mind to Article 8 earlier than December just gone.
70. MR JUSTICE JAY: Yes. What do you say about that, Miss Walker?
71. MISS WALKER: Well, my Lord, given your findings in respect of the breach of Article 8.1, and there is no breach of Article 8, in my submission, even if the decision had not been changed, ie the decision of 22 December 2014 had not come into being, there would still have been a refusal of this application in any event, because the application falls at the first hurdle, which is the evidence as to breach. So in my submission the reasons for awarding the costs on the normal order are still in place.
72. MR JUSTICE JAY: Yes.
73. Actually, I've decided I'm going to make no order, my main reason being that your detailed grounds came far too late, that the issues should have been identified much earlier, it would have been better had you put in evidence and made your position absolutely clear to enable at the very least the claimant to consider his position. I accept it's probable he would have pressed ahead in any event, but you've won on bases which only became clear late in the day.
74. I mean, I take your technical point that Article 8.1, if it succeeds now, always should have succeeded, but on the other hand, these matters need to be identified properly and at the right time, and you didn't do that. So the order is no order.
75. So the application for judicial review is dismissed, with no order as to costs, apart from whatever order Mr Rule needs in relation to his certificate.
76. MR RULE: I'm grateful.
77. MISS WALKER: Detailed assessment.
78. MR RULE: Detailed assessment, please.
79. My Lord, may I mention one thing for the eventual transcript. My Lord, in relation to Shaheen.
80. MR JUSTICE JAY: Yes, I got the wrong paragraph. It's paragraphs 37 and paragraph 40.
81. MR RULE: Indeed.
82. MR JUSTICE JAY: That occurred to me.
83. MR RULE: I think it was my fault, because I think when I went through it I gave my Lord 40 before 37.
84. MR JUSTICE JAY: No, it wasn't your fault, it was mine. Paragraph 37, Dyson LJ said no exceptional circumstances. Paragraph 40, he deals with --
85. MR RULE: His own judgment on proportionality.
86. MR JUSTICE JAY: Proportionality, yes.
87. MR RULE: So in my Lord's judgment, it's the first reference to the paragraph I think that's 37, not 40, but the second 40 is correct.
88. MR JUSTICE JAY: I'm very grateful for that --
89. MISS WALKER: I'm so sorry, my Lord, I have just cut you off, but I just want to make sure, the other correction I had, and I'm sure Mr Rule will correct me if this is wrong, but the number of visits that the claimant had had was in fact three from his mother.
90. MR JUSTICE JAY: It says two in the bundle.
91. MISS WALKER: It says two with his brother and then one with --
92. MR JUSTICE JAY: I see.
93. MISS WALKER: Yes. I'm sorry, my Lord, I had said three, and it won't make any difference.
94. MR JUSTICE JAY: Well, I suppose it helps you a bit. So there may have been a visit without anybody else helping her?
95. MISS WALKER: No, he specifically says he had two visits from his brother, wife and mother, and then he says, "I had one visit from my cousin Tracy, my mother and my aunt Eve".
96. MR JUSTICE JAY: I see.
97. MISS WALKER: Sorry, my Lord.
98. MR JUSTICE JAY: Right. Well there we go. Thank you very much.
99. Anything else?
100. MR RULE: No thank you, my Lord.
101. MR JUSTICE JAY: Thank you very much.