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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaiyam, R (On the Application Of) v The Secretary of State for Justice [2013] EWCA Civ 1587 (09 December 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1587.html Cite as: [2013] WLR(D) 480, [2013] EWCA Civ 1587, [2014] 1 WLR 1208, [2014] WLR 1208 |
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ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE SUPPERSTONE
CO/10470/2012
C1/2013/1147
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MRS JUSTICE LANG
CO/414/2012
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE UNDERHILL
and
LADY JUSTICE MACUR
____________________
C4/2013/1572 THE QUEEN ON THE APPLICATION OF FAISAL KAIYAM |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR JUSTICE |
Respondent |
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C1/2013/1147 |
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THE QUEEN ON THE APPLICATION OF KEITH HANEY |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR JUSTICE |
Respondent |
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Pete Weatherby QC and Vijay Jagadesham (instructed by Burton Copeland LLP) for the Appellant
Tom Weisselberg and Hanif Mussa (instructed by Treasury Solicitor) for the Respondent
C4/2013/1147
Hugh Southey QC and Jude Bunting (instructed by Michael Purdon Solicitors) for the Appellant
Tom Weisselberg and Hanif Mussa (instructed by Treasury Solicitor) for the Respondent
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Crown Copyright ©
Master of the Rolls:
The issues
The Convention claims
Permission to appeal
Should we review the arguments and express our views?
Mr Kaiyam's common law claim
The facts
"Given the regrettable delays that have already occurred in this case, every effort will be made by HMP Long Lartin to treat the Claimant's case as a priority in order to prevent further delay."
The public law duty
"It would not in my view be sufficient for the Claimant to do, as Mr Jagadesham proposes, namely to add words to the Claim Form stating there is a rationality challenge. The Defendant would need to know which individual decisions taken on behalf of the Defendant were irrational. The rationality challenge would need to be set out in some detail and the Defendant would have to have an opportunity to respond. Individual decisions were taken some time ago; the Defendant may wish to raise the issue of delay in relation to particular decisions; prison officers may have moved on which may lead to difficulty in responding to individual complaints. There is also the issue of cost to be considered. The Claimant is now on a course that he accepts is appropriate which will lead to his case being considered by the Parole Board, at most nine months later than it should have been considered. It would not, in my view, be proportionate in terms of costs to allow a new claim to be added at this stage in the proceedings."
"If there had been a breach of policy complaint in the grounds of claim, as for example in R (on the application of Dennis Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin) at paras 77-79, then the Defendant would have sought to identify when and in what respects it was said the Defendant had acted in breach of his policies and would have responded to any such complaint. There is nothing in the grounds of claim to indicate what policy had been breached. It is not inevitable, Mr Weisselberg submits, that by alleging breach of the James duty a claimant is alleging breach of an individual PSO."
"35. If there were no courses at all for IPP prisoners or no sex offender courses in a prison that houses only sex offenders, that would be a systemic breach. Similarly the existence of a backlog that was not cleared because of a lack of resources may on the facts of a particular case amount to a systemic breach. That is what Mehmet was about. Similarly a failure to have in place a system that allows for IPP prisoners to transfer to open prisons could amount to a systemic failure, as the Defendant conceded in Haney. These are very different cases to the case put forward in the present claim in which the nature of the duty contended for by the Claimant is a duty owed individually to each and every prisoner where the mere fact of delay will be the basis for contending that a breach of public law duty had occurred.
36. Further the Claimant's case is based on the benefit of hindsight. It is that the Claimant was not put on the right course when he started at Long Lartin and therefore there was an ongoing breach of the Defendant's public law duty in his case. The Claimant could have brought an irrationality challenge as envisaged in Cawser, but he has not done so. The reason why the Claimant's complaint is made with the benefit of hindsight is because in 2009-2010 the Parole Board did not suggest that the SCP was suitable and necessary for him. It was not until the Claimant had a new offender supervisor, Mr Clive Petgrave, in August 2012 that it was suggested he should go on a SCP course, and on 17 October 2012 assessment for the SCP was added to the Claimant's sentence plan."
Conclusion
Lord Justice Underhill:
Lady Justice Macur: