CO/84/2004 and CO/2291/2004 
Neutral Citation Number: [2004] EWHC 2143 (Admin) 
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 30th July 2004
 
B E F O R E:

MR JUSTICE HARRISON
 
- - - - - - -
THE QUEEN ON THE APPLICATION OF DAVID FRANCIS AND ALLAN CLARKE
(CLAIMANT)

-v- 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT)
THE PAROLE BOARD
(INTERESTED PARTY) 
 - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR W BARNES appeared on behalf of the CLAIMANT DAVID FRANCIS
MR D MCLACHLAN appeared on behalf of the CLAIMANT ALLAN CLARKE
MS E GREY (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
- - - - - - - 
J U D G M E N T 

1.	MR JUSTICE HARRISON:  Introduction 
2.	By agreement with the parties, I have heard the cases of Francis and Clarke together.  The facts of both cases are not dissimilar and the issue in both cases is effectively the same.  The issue is whether a prisoner who has been recalled after having been released on licence has only one opportunity under section 39 of the Criminal Justice Act 1991 to make written representations with respect to his recall or whether he can subsequently make further written representations about his recall.  
Statutory Provision 
3.	Before I deal with the facts of the two cases, I should first of all set out section 39 of the 1991 Act because it lies at the heart of this case.  I quote:
"(1).  If recommended to do so by the Board in the case of a short term or long term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.  
 (2).  The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.  
 (3).  A person recalled to prison under subsections (1) or (2) above -- 
 (a) may make representations in writing in respect of his recall; and
 (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.  
4.  The Secretary of State shall refer to the Board --
 (a) the case of a person recalled under subsection (1) above who makes representations under subsection 
(3) above; and
"(b) the case of a person recalled under subsection.  
(2) above.  
"(5).  Where on a reference under subsection (4) above, the Board --
"(a) ... 
"(b) recommends in the case of any person 
his immediate release on licence under this section, the Secretary of State shall give effect to the recommendation."
Facts - Francis 
4.	I now come to the facts of the two cases.  Dealing first with the case of Mr Francis, he was born on 22nd June 1981.  On 10th July 2001 he was sentenced to a total of three years and ten months detention in a Young Offenders Institution for offences of wounding with intent and wounding causing grievous bodily harm contrary to sections 18 and 20 of the Offences Against the Person Act 1861.  He was therefore a short term prisoner who would automatically be released after he had served half his sentence, after which he would be on licence until he had served three quarters of his sentence.  On 11th April 2003, he was released on licence pursuant to section 33(1)(b) of the 1991 Act, having served half his sentence.
5.	There were various requirements of his licence, amongst which were paragraphs 5(ii) and 5(vi) which stated:  
"5(ii) If required, receive visits from your supervising officer at your home at reasonable hours and for reasonable periods."
"5(vi) Be on good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from reoffending and secure your successful reintegration into the community."
6.	On 17th April 2004, Mr Francis was arrested and charged with an offence of wounding contrary to section 20 of the Offences Against the Person Act 1861, the alleged victim being a doorman of a public house.  He was remanded in custody and thereafter applications for bail were refused.  
7.	On 6th May 2003, the probation service recommended that his licence should be revoked.  On 19th May 2003, that recommendation was referred to the Parole Board which recommended, pursuant to section 39(1) of the 1991 Act, that his licence should be revoked.   
8.	On 4th June 2003, his solicitors made written representations to the Parole Board giving reasons why he denied the offence and why he failed to attend a house visit arranged with his probation officer, and requesting that the revocation should be reconsidered and that he should be released again on licence.  Those were referred to as the first written representations.  They were made pursuant to section 39(3)(a) of the 1991 Act.
9.	On 24th July 2003, Mr Francis was informed that his representations had been rejected.  The reasons given by the Parole Board were: 
"Mr Francis was involved in a violent incident on the first night of his release on licence.  His actual role in the incident has yet to be determined but he is awaiting trial on a section 20 wounding charge.  He admitted his involvement on his second visit to his probation officer and thereafter failed to receive a visit from his supervising officer.  In view of these matters, he was in breach of his licence conditions 5(ii) and 5(vi) and recall was appropriate. 
"The panel are concerned about the rapid reinvolvement in violence in this case, which has worrying echoes of much violence in Mr Francis's past.  This and his failure to receive the supervising officer's visit have clearly jeopardised the objectives of his supervision.  The risk of re-offending, in view of the original offence, the antecedent history and the current charge, is seen as too high for release on licence.  The representations are rejected."
10.	There is no challenge to that decision.  On 23rd September 2003, Mr Francis appeared to stand trial at Preston Crown Court, but the prosecution had insufficient evidence and the judge directed a verdict of not guilty.  On the next day his solicitors wrote to the Sentence Enforcement Unit, who act on behalf of the Secretary of State, requesting that his position should be reconsidered on the ground that the principal reason he had been recalled was that he had been charged with a further offence but that he had now been found not guilty of the offence on the judge's direction.  The letter also explained further why the Home Office appointment with his probation officer had not been kept.  Those were referred to as the second written representations.  They were not referred to the Parole Board.  It is the central point of Mr Francis's case that they should have been referred to the Parole Board.
11.	On 12th November 2003, the Sentence Enforcement Unit replied saying the Secretary of State was unable to re-refer Mr Francis's case back to the Parole Board.  The letter stated, and I quote:
"As Mr Francis has already availed himself under section 39(4)(a), the Secretary of State is unable to re-refer this or any other Automatic Conditional Release case back to the Parole Board once the Board has considered the revocation decision and any representations submitted.  The reasons for this are that under section 39(4)(a) of the Criminal Justice Act 1991, the Secretary of State has a statutory direction to refer to the Parole Board anyone who makes representations.  Under section 39(5)(b), the Secretary of State must act on any such recommendation or direction for release.
"However, whilst there is nothing within the legislation to state that the Secretary of State may not refer an Automatic Conditional Release case back to the Parole Board, the legislation does not provide the statutory authority for the Secretary of State to act on any subsequent recommendation to release.  The statutory timings for the release of Automatic Conditional Release prisoners laid down by Parliament in the 1991 Criminal Justice Act may only be invoked under sections 33(1)(b) (release at halfway point of sentence) and 33(3)(b)(release at three quarter point following a recall to prison) or under section 39(5)(b) (representations accepted by the Parole Board).  Without the statutory power to enforce any decision to release made by a subsequent meeting of the Parole Board, the Secretary of State considers that any further re-referral of Mr Francis's case back to the Parole Board to be no more than an academic exercise."
12.	That was the decision letter challenged by Mr Francis in these proceedings.  Miss Wilson-Barnes, who appeared for Mr Francis, made a number of criticisms of that letter, but Miss Grey, who appeared on behalf of the Secretary of State and the Parole Board, made it clear that she did not rely on the reasons given in that letter which, she said, was not written by a lawyer.
13.	Following a protocol letter written by Mr Francis's solicitors, there was a further letter from the Home Office on 9th January 2004 which was the same day as the claim form was lodged.  That letter, having dealt with the reasons why Mr Francis had breached conditions 5(ii) and 5(vi) of his licence, stated:
"Whilst the charge brought against Mr Francis was ultimately not proceeded with, the fact remained that the behaviour Mr Francis had displayed (by his own admission) had resulted in him placing himself in a position where a charge was laid before him.  In respect of his failure to be available for a home visit on 16th April 2003, his supervising officer has confirmed that a message was left by Mr Francis with the probation office at lunchtime on 16th April advising that he was unable to gain access to his address as he did not have a key.  On receipt of the message, the supervising officer left a message at 13.45 on a mobile phone number given by Mr Francis advising that visit would go ahead, but rearranging the appointment for 17.00 hours, allowing Mr Francis enough time to gain access to the property.  The supervising officer attended the address at the time of the rearranged appointment, but was unable to elicit any response from the address.  It therefore remains that Mr Francis breached condition 5(ii) of his licence by failing to make himself available for a pre-arranged appointment at his home address.  These matters were properly considered and taken into account by the Parole Board and reflected in the reasons given for upholding the recall.
In the light of the above, the Secretary of State does not accept that either
 (i) the initial recall or,
 (ii) in the light of the reasons given by the Parole Board for upholding the recall, the non-referral of the matter to the Parole Board for further consideration following the withdrawal of the wounding charge.
Are in any way unlawful."
Miss Wilson-Barnes criticised that letter as well, in effect saying the Secretary of State wrongly purported to act as a filter for the representations made to the Parole Board.
14.	Finally, so far as Mr Francis is concerned, he was subsequently released on licence again on 26th March 2004, so he is no longer in custody.
15.	Those are the relevant facts relating to Mr Francis's case.  It is to be noted that his recall to prison had been recommended by the Parole Board under section 39(1) and, following his solicitor's first written representations, his case was referred by the Secretary of State to the Parole Board under section 39(4)(a).  Also, the first written representations were made on his behalf after he had been charged with the further offence leading to his recall, and the second written representations were made after he had been found not guilty of that offence.
Facts - Clarke 
16.	I turn then to the facts relating to Mr Clarke's case.  He was born on 14th March 1981.  On 15th October 2002 he was sentenced to 30 months imprisonment for offences of being concerned in the supply of Class A drugs.  He was therefore also a short term prisoner.  On 2nd September 2003 he was released on licence under the Home Detention Curfew Scheme.  On the next day he was stopped in the car with some others, arrested and eventually charged with possession of an offensive weapon, a knife, contrary to section 139(1) of the Criminal Justice Act 1988.  As a result, on 5th September 2003 the Secretary of State revoked his licence and recalled him to prison under the emergency provisions in section 39(2) of the 1991 Act.  On 23rd October 2003, his solicitors made written representations to the Secretary of State denying the offence, requesting reconsideration of the revocation of his licence and his recall to prison, and stating that the decision should be reconsidered by the Parole Board.  Those were the first written representations and they were made pursuant to section 39(3)(a).  The Secretary of State referred the matter to the Parole Board under section 39(4)(b) and, on 4th November 2003, the Parole Board rejected those representations, giving the following reasons:
"Mr Clarke was recalled to prison following his arrest for possession of an offensive weapon -- a knife.  He was on home detention curfew.  In the representation submitted on his behalf, he denies that the knife was his.  He is contesting the charge at court.
The Secretary of State's directions to the Board [sic] to reject the representations of a prisoner charged with an offence committed while subject to home detention curfew unless it is 'clearly apparent' that the conduct that led to the charge does not merit recall.  The panel was not so satisfied and therefore rejects Mr Clarke's representations."
17.	On 10th and 11th February 2004, Mr Clarke stood trial at Liverpool Crown Court on the charge of opposing an offensive weapon and was found not guilty by the jury.  On the next day, his solicitors made further representation to the Home Office pointing out that he had been acquitted of the charge which had prompted the revocation of his licence and asking for that decision to be reviewed.  A further similar letter was sent on 18th February 2004 asserting that the not guilty verdict was a material change of circumstances.  On 23rd February 2004, a fax from the Home Office explained that there could not be a re-referral and that the only avenue was judicial review.  It also pointed out that the initial decision to recall Mr Clarke was not solely based on the fact he had been charged with a further offence but that it was also due to his behaviour which placed him in the position of being charged with the offence.  That was, effectively, the decision challenged in Mr Clarke's case.
18.	Following a letter before claim on 24th February 2004, the Home Office replied on 1st March 2004 stating: 
"In other words, the licence enforcement process and the criminal proceedings are completely separate processes and should not be confused.  It is for this reason that the early release and recall section focuses upon the behaviour leading to arrest or charge and not the charge itself.  Furthermore, it should not be presumed that if a charge is dropped or the offender is acquitted, we are required to re-release the offender.  If the Parole Board is satisfied, on the balance of probabilities, that the offender has breached the good behaviour condition of his licence, irrespective of the outcome of the charge, the case for recall remains unchanged."
19.	Finally so far as Mr Clarke's case is concerned, he is still in custody and his earliest release date is in September 2004.
20.	Those are the relevant facts relating to Mr Clarke's case.  In his case, the recall decision was made by the Secretary of State under section 39(2) and his case had been referred to the Parole Board by the Secretary of State under section 39(4)(b).  In the same way as in Mr Francis's case, the first written representations were made after he had been charged with a further offence leading to his recall, and the second written representations were made after he had been acquitted of the charge.  In both cases, the Secretary of State refused to entertain any further written representations after the first written representations had been made.  The issue is whether he erred in law in adopting that approach.
Submissions 
21.	Put very shortly, the competing arguments are as follows: 
22.	The claimants submit that there is nothing in section 39 to restrict a recalled prisoner to one opportunity of making written representations with respect to his recall.  He can therefore make more than one set of written representations and the Secretary of State is under a duty each time to refer those written representations to the Parole Board under section 39(4).  The primary argument on behalf of the Secretary of State, on the other hand, is that he can only refer a case to the Parole Board once under section 39(4) and that, after the Parole Board has adjudicated on it, it is functus officio in relation to it.  In other words, there is only an opportunity for one set of written representations and, once the Parole Board has adjudicated on them, that is it.
23.	The alternative submission on behalf of the Secretary of State is that if, contrary to his primary submission, the recalled prisoner can make more than one set of representations with respect to his recall, the Secretary of State is only under a duty to refer them to the Parole Board if they demonstrate a material change in circumstances and that it would be for the Secretary of State to decide whether or not that was so.  Otherwise, there would be no way of preventing the Parole Board from being burdened with repeated and unmeritorious representations which the Secretary of State would be under a duty to refer to the Board.
24.	Mr McLachlan, who appeared on behalf of Mr Clarke, adopted the Secretary of State's alternative argument as his fall back position and contended that Mr Clarke's subsequent acquittal on the charge that led to his recall was a material change of circumstances.
25.	Miss Wilson-Barnes, whose submissions were adopted by Mr McLachlan, made the point that there was nothing in the terms of section 39 which limited the number of times that written representations could be made.  Section 39 could have said that they could only be made once, but it did not.  It was pointed out that there was no time limit within which any written representations had to be made.  Comparison was made with section 44(a) of the 1991 Act and section 28 of the Crime (Sentences) Act 1997.  Section 44 A of the 1991 Act deals with prisoners serving extended sentences who have been recalled under section 39(1) or (2).  Subsections (2) and (3) of that section provide as follows:
"(2) Subject to subsection (3) below, the prisoner may require the Secretary of State to refer his case to the Board at any time. 
"(3) Where there has been a previous reference of the prisoner's case to the Board whether under this section or section 39(4) above, the Secretary of State shall not be required to refer the case until after the end of a period of one year, beginning with the disposal of that reference."
26.	Section 28 of the 1997 Act, which deals with life prisoners who have served "the relevant part" of their sentence, provides that such a prisoner can require the Secretary of State to refer his case to the Parole Board at any time two years after a previous reference.  The point was made that whilst those sections imposed fetters on the times within which references could be made, there was no such time limit in section 39.  It was contended on behalf of the claimants that the Parole Board was not functus officio after deciding a reference under section 39.  There could be a sequence of self-contained decisions each involving final decisions.  The Board was concerned with risk to the public and there was no reason why it could not be asked to consider further representations, not re-opening previous decisions but as separate decision-making processes.  It was submitted that the function of the Board was to consider the present risk to the public and that that role was not limited to reviewing the decision to recall a prisoner.  
27.	It was also submitted that the purpose of recall under section 39 was protective, not punitive.  The purpose was to protect the public and the prisoner.  It was conceded on behalf of the claimants that their arguments could result in the Parole Board having to deal with repeated unmeritorious representations, but it was said that the balance favoured such an approach in order to protect the prisoner, bearing in mind that the purpose of section 39 was not punitive.  It was pointed out that, if the recalled prisoner only had one opportunity to make representations, the timing of the representations would become unfairly and unnecessarily critical.  A prisoner would have to try and decide when was the best time to make his representations, which was potentially unfair.
28.	Dealing with the Secretary of State's alternative argument of allowing further written representations if there was a material change of circumstances, it was submitted on behalf of the claimants that it was not appropriate to rely on cases relating to homelessness or asylum in respect of material change of circumstances because those cases involve different statutory regimes where the applicant had to bring himself within certain statutory requirements, whereas a recalled prisoner did not have to bring himself within any such criteria, the Parole Board being concerned with the wider picture of risk to the public.
29.	Finally in relation to the Secretary of State's alternative argument, it was contended that under section 39, the Secretary of State was merely a conduit.  He could not be a filter for deciding whether the representations demonstrated a material change in circumstances.  To allow the Secretary of State to filter representations in that way offended against the purpose of section 39, it circumvented the role of the Parole Board and there was nothing in section 39 to justify it.
30.	Miss Grey, on the other hand, pointed out that the claimant's argument that section 39 enabled an unlimited right to make further representations would involve a radical change in the role of the Parole Board with an ongoing duty to review present risk, without limitation, simply triggered by a prisoner's set of representations, however long had elapsed since the prisoner's recall.  Bearing in mind the structured way in which the rights of other prisoners, such as life prisoners and prisoners serving extended sentences, had been defined, it was submitted that it would be very surprising if Parliament had intended to confer such an open-ended right in section 39 .  
31.	In support of the Secretary of State's primary submission that section 39 only allowed one set of written representations, Miss Grey pointed out that a referral of a section 39(2) prisoner under section 39(4)(b) was not conditional on representations having been made, and it was submitted that the duty to make such a referral could only sensibly be interpreted as arising once.  The right of section 39(1) and section 39(2) prisoners should be consistent with each other and there was no justification for allowing one group to make multiple representations but not the other.  It was suggested that the purpose of the differing statutory provisions was to ensure that a section 39(1) prisoner, whose recall would already have been considered by the Board, would only be reconsidered by the Board if he made written representations about the recall, whereas no such limitation was appropriate in the case of a section 39(2) prisoner because his case would not have had prior consideration by the Board.  It was therefore contended that the reference to representations in section 39(4)(a) could not have been intended to trigger a right to have multiple periodic representations referred to the Board.
32.	I was told that what happens in practice in relation to section 39(2) cases is that the Secretary of State makes an immediate, extra statutory, referral to the Parole Board before any representations are received from the prisoner and that, when any such representations are received, there is then a formal reference to the Parole Board.  The legality of that extra statutory referral was upheld by the Court of Appeal in R v Parole Board, ex parte Watson (1996) 1 WLR 906.
33.	Miss Grey submitted that the claimants' case involving repeated representations, however unmeritorious they may be, would lead away from the section 39 function of reviewing the recall decision to an ongoing function of reviewing the continuing justification for the prisoner's detention, which was not what section 39 was dealing with.  Reliance was placed on the reference in section 44A(2) of the 1991 Act to the right of a prisoner serving an extended sentence to require the Secretary of State to refer his case to the Board "at any time" because, it was said, such a provision would be unnecessary if such a right was available anyway under section 39.  Miss Wilson-Barnes, on the other hand, suggested that it was only necessary to refer to that right because a fetter was being put on it.
34.	Finally, so far as the Secretary of State's primary submission is concerned, Miss Grey submitted that after the Parole Board had decided a case referred to it under section 39(4), it was functus officio.  She relied firstly on the passage in Prison Law by Livingstone, Owen, McDonald at paragraph 13.82 which, when dealing with section 32(5) of the 1997 Act relating to the recall of life prisoners on licence and which is otherwise identical to section 39 of the 1991 Act, refers to the Board becoming functus officio once it has dealt with a case referred to it by the Home Secretary.  Secondly, reliance was placed on two decision of the Divisional Court, R v Secretary of State for the Home Department, ex parte Evans (unreported, 2nd November 1994) and R v The Parole Board, ex parte Robinson (unreported, 29th July 1999).  In the latter of those two cases, one panel of the Parole Board had held in favour of the prisoner and then a second panel considered the issue of risk again and held against the prisoner.  Reference was made by the court to the judgment of Vaisey J. in Re 56 Denton Road, Twickenham (1953) CH.51 where it was held that a decision made by a statutory body determining the rights of the subject, which was not expressed to be preliminary or provisional, is final and conclusive and that a contrary view would introduce a lamentable measure of uncertainty.  The Divisional Court in the Robinson case held that the same considerations which underlie the functus officio principle applied in at least equal measure to that case. Simon Brown LJ, as he then was, stated: 
35.	"Justice to discretionary life prisoner in the post-tariff period in my judgment requires that once a prisoner succeeds in the face of opposition in satisfying a panel that he can safely be released, that decision must be regarded as final and conclusive, subject only to the Secretary of State demonstrating that it was fundamentally flawed or pointing to a supervening material change of circumstances." 
36.	Miss Grey submitted that the claimants' case would drive a coach and horses through the conventional understanding of the functus officio principle. 
37.	Turning to the alternative submission of the Secretary of State relating to a duty to refer when there was a material change of circumstances, Miss Grey drew attention firstly to the passage I have just quoted from the judgment of Simon Brown LJ in the Robinson case,submitting that, even if the panel is functus, there may be scope for re-opening its decision if there were a material change of circumstances. Secondly, she drew attention to section 12 of the Interpretation Act 1978 which states:
"Where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires."
38.	In the case of R v Ealing LBC, ex parte McBain (1985), 1 WLR 1351, which was a homelessness case, the Court of Appeal placed reliance on section 12 of the Interpretation Act in concluding that it could properly be inferred that the housing authority's obligation was revived by a material change in the applicant's circumstances so that the occasion required the duty to be performed again.  
39.	Reference was also made to the Court of Appeal decision in R v Secretary of State for the Home Department, ex parte Onibyo (1996) 2 WLR 496, an asylum case, where it was held that there could be a fresh in-country asylum claim in circumstances where the new claim was sufficiently different from the earlier claim to admit a realistic prospect that a favourable view could be taken, despite the unfavourable conclusion reached on the earlier claim.  
40.	Miss Grey submitted that if, contrary to the Secretary of State's primary submission, there were a power or duty to re-refer cases to the Parole Board under section 39 "from time to time as occasion requires", then there had to be a material change of circumstances to justify such a re-referral and that the further written representations had to relate to the recall decision rather than to the circumstances of the prisoner's continuing detention, otherwise they would not be representations "with respect to his recall" as required by section 39(3)(a).
41.	In those circumstances, it was submitted by Miss Grey that it would be for the Secretary of State to decide whether the threshold of a material change of circumstances had been shown to be satisfied by the further written representations.  It was suggested that that would be consistent with the structure of the Act by which the Secretary of State refers and the Parole Board considers.  Under section 32(2) of the Act, the Parole Board's duty is to advise the Secretary of State with respect to any matter referred to it by him in connection with the early release or recall of prisoners.  Under section 39(4) it was the duty of the Secretary of State to refer a prisoner's case to the Board which, if the Interpretation Act applies, he had to do from time to time as occasion required.  It was accepted by Miss Grey that any decision by the Secretary of State as to whether the further written representations gave rise to a material change of circumstances requiring a re-referral could be subject to the scrutiny of the Court by way of judicial review.
Conclusions 
42.	I have taken some time in summarising the submissions that were made by the parties because they reveal the difficult nature of the decision to be made in this case.  They also reveal the rather unusual nature of the case in that the Secretary of State has put forward two alternative different cases.  
43.	I start by considering section 39 itself.  The section is directed to protection of the public against risk.  Recall of the prisoner is effected either following a recommendation of the Parole Board (section 39(1)) or on the Secretary of State's own initiative without such a recommendation if it is expedient in the public interest to do so and it is impracticable to obtain such a recommendation (section 39(2)).  In either case, the prisoner has the right to make written representations with respect to his recall, (section 39(3)(a)).  In the case of a section 39(1) prisoner, the Secretary of State has a duty to refer his case to the Board if he has made written representations.  In the case of a section 39(2) prisoner, the Secretary of State's duty to refer his case to the Board does not depend on written representations having been made.  His case has to be referred to the Board whether he makes representations or not.  That no doubt reflects the fact that his case has not previously been considered by the Board, unlike the case of a section 39(1) prisoner.  If the Board then directs the immediate release of the prisoner on licence, whether he be a section 39(1) or a section 39(2) prisoner, the Secretary of State must give effect to that direction.
44.	It seems to me to be important to bear in mind that section 39 is dealing with the recall of prisoners, in these cases short term prisoners.  Any written representations made pursuant to section 39 have to relate to the issue of the prisoner's recall, not to the ongoing appropriateness or otherwise of his continuing detention, except insofar as it is incidental to the decision relating to his recall.  It follows that the need to make any further written representations relating to the recall decision should be very limited. 
45.	I entirely reject the claimants' case that the prisoner should have the right to make repeated representations giving rise in each case to a duty on the Secretary of State to refer them to the Parole Board.  That would give rise to a significantly different regime from that which I consider was contemplated by section 39.  It would concentrate more on the on-going justification for the prisoner's continuing detention rather than the appropriateness of the prisoner's recall which is what section 39 is dealing with.  Furthermore, it would mean that the prisoner would be able to make repeated representations, however unmeritorious or vexatious they may be, and in each case the Board would be under a duty to consider them.  That would involve a wholly unacceptable burden on the Board which goes beyond the contemplated scope of section 39.  I therefore have no difficulty in rejecting the claimants' case.
46.	I do, however, have more difficulty in deciding which of the two alternative cases put forward by the Secretary of State is correct.  I have already remarked on the limited nature of the scope of section 39 involving written representations dealing solely with the issue of the prisoner's recall.  I also recognise the force of the functus officio argument.  Indeed, I prefer the Secretary of State's argument on that aspect because it seems to me that the claimants' contrary argument is predicated on their case of repeated representations being permitted.  
47.	I am, though, concerned with the potential unfairness of the guillotine coming down after the first written representations when there could subsequently be a material change in circumstances showing that the Parole Board's decision relating to the recall decision may be wrong.  The Secretary of State's primary case would not cater for that situation.  Miss Wilson-Barnes' point relating to the potential unfairness of a prisoner having to choose the best time to make their once and for all written representations also seems to me to have some force.  These two cases are examples of that dilemma in that the solicitors in both cases chose, perhaps understandably, to make their written representations after the Parole Board's decision but before their client's subsequent acquittal on the charge which had featured in the decision to recall them.  I suppose the solicitors could have asked to be able to make their once and for all representations after their clients' trial or to ask the Secretary of State to delay a decision on referral until after the trial, but there could be no certainty that such a request would have been granted.  It is just an example of the difficulty and potential for unfairness which could arise if there were subsequently a change of circumstances which could have a material bearing on the correctness of the decision to recall.  
48.	I do not envisage that such a situation would often arise, certainly not after any great length of time after the recall decision, but it is to safeguard against such potential for unfairness that I favour the Secretary of State's alternative case rather than his primary case.  
49.	I take some comfort in that decision from the passage in the judgment of Simon Brown LJ in the Robinson case, which I have already quoted, where he instanced a supervening material change of circumstance as a potential exception to the rule that a decision must otherwise be regarded as final and conclusive.  The Interpretation Act enables it to be implied that a statutory duty can be performed from time to time as occasion requires unless the contrary intention appears from the statutory provision.  I do not consider that there is anything in section 39 which can be said to have intended to exclude the duty to refer further written representations in circumstances where the recall decision could be shown to be unfair due to a material change in circumstances relevant to that decision.  In those circumstances, it can, in my judgment, properly be said that the occasion requires that the duty should be performed.
50.	It is necessary next to consider who should be responsible for deciding whether the written representations demonstrate a material change in circumstances relevant to the recall decision so as to give rise to the duty to refer them to the Parole Board.  In my view, it should be the Secretary of State who should perform that function.  It is for him to decide whether the circumstances are such as to give rise to his duty to refer under section 39(4).  In doing so, he should consider whether the further written representations demonstrate a material change in circumstances such as to admit of a realistic prospect that a different view might be taken by the Parole Board.  As I have said, I do not envisage that such circumstances will often occur and it certainly should not be seen as a general green light to make further representations.  The sole purpose is to allow further written representations where it is genuinely necessary to do so to avoid potential unfairness or injustice arising.
51.	I therefore reject the claimants' case interpreting section 39 as enabling repeated further written representations, whatever their merit.  I reject the Secretary of State's primary case that section 39 only allows one set of written representations.  I find in favour of the Secretary of State's alternative case that section 39 can be properly interpreted as allowing further written representations solely relating to the issue of recall and only when it can be shown that there has been a material change of circumstances resulting in a realistic prospect that the Parole Board might have taken a different view.  
52.	Subject to any observations of counsel, it seems to me that it is not necessary to refer to the merits of each individual case because, as Miss Grey observed, the Secretary of State's eventual decision on the merits of referral were not challenged.  In those circumstances, as I have upheld the Secretary of State's alternative case, it follows that, for the reasons I have given, the claims in these two cases will be dismissed. 
53.	MISS GREY:  My Lord, in those circumstances may I ask for a formal order dismissing both claims? 
54.	MR JUSTICE HARRISON:  Yes. 
55.	MISS GREY:  In addition, the matter of costs.  My Lord, I understand that both claimants are publicly funded.  In those circumstances, we would ask for an order for costs, but subject to the usual basis that they be assessed under section 11 of the 1999 Access to Justice Act.  That is intended to be a football pools order, my Lord. 
56.	MR JUSTICE HARRISON:  Rather than repeat exactly what you said, subject to any observations by counsel, I will make that order. 
57.	MISS WILSON-BARNES:  My Lord, the only observation I make is that although the claims have failed and the Secretary of State has succeeded in the alternative basis, that basis was only put forward in the course of these proceedings and was not actually adopted in the correspondence which your Lordship referred to which took place and was the subject of decision-making.  In those circumstances, I put forward somewhat tentatively that perhaps no order for costs might be more appropriate because that argument has only come forward with any force because of today's application.
58.	MR JUSTICE HARRISON:  I hear what you say, Miss Wilson-Barnes, and I understand the point you are making, but if it was thought that any adjournment was needed to reconsider the case in the circumstances, that could have been done. That was the case that was before the Court, that was the way it went and that is the result.  So I am afraid I am against on you that.  
59.	Anything further you want to say? 
60.	MISS FOTHERGILL:  My Lord, no.
61.	MR JUSTICE HARRISON:  Thank you very much. 
62.	MISS WILSON-BARNES:  My Lord, also I think we both seek a legal aid detailed assessment to be made as well. 
63.	MR JUSTICE HARRISON:  The certificate is on the file, is it?  Whilst that is being looked at, is there anything else?
64.	MISS WILSON-BARNES:  Yes, my Lord.  I am also instructed to ask for permission to appeal.  There are two issues which arise.  First of all, I put my primary submissions as to the right to make repeated representations.  There is somewhat conflicting authority of McNeill, although the issue was not satisfactorily decided in that case.
65.	MR JUSTICE HARRISON:  As you saw, I did not make any reference to that case because I did not think it was worth doing so. 
66.	MISS WILSON-BARNES:  The only point I make is that it is a case of significant public interest.  Secondly, the other point is that there is still an issue, in my submission, which can be fairly argued about which body is to make the decision as to whether there is a material change of circumstances.  In short, the basis for suggesting the Secretary of State is only really asserted because there is not really any other wording in section 39 by comparison to the circumstances in the Onibyo case where it was the Secretary of State who was to make the decision.  It was on the basis that it was the Secretary of State which fulfilled all of the functions in determining the asylum case and therefore there was not an alternative function in place.  
67.	This is different, in my submission.  It is a question which, in the interests of those who come under section 39, would have possibly real differences depending on whether the Secretary of State had that power to filter in the second time around representations.  
68.	On that basis, in my submission, I would ask for permission to appeal to determine again my primary submissions but also the particular question under the Secretary of State's alternative case.
69.	MR JUSTICE HARRISON:  Yes, I see.  Thank you very much.  Anything you want to say? 
70.	MISS FOTHERGILL:  My Lord, I am also instructed to apply for leave to appeal.  As you are aware, I was not the counsel involved in the actual hearing and therefore I would simply echo my learned friend's submissions that she has just made to you.
71.	MR JUSTICE HARRISON:  I see, thank you very much.  Miss Grey? 
72.	MISS GREY:  My Lord, the criteria for granting permission to appeal are either that there is a real prospect of success or, secondly, that there is some other than reason, such as public interest, to grant permission.  In my respectful submission, these submissions demonstrate no real prospect of success.  There is nothing to show that your Lordship's judgment would not be approved by the Court of Appeal, there is no authority that has barred your Lordship from reaching one result and not another.  
73.	As to the question of public interest or some other reason, your Lordship has arrived at a clear judgment which, whilst not a benefit to these two applicants, will nevertheless provide means for other applicants to avoid any difficulties or injustice of the nature that your Lordship identified as potentially arising in your Lordship's judgment.  For that reason, I respectfully submit that permission should not be granted to appeal, that this matter should remain as it is unless the Court of Appeal think otherwise.
74.	MR JUSTICE HARRISON:  Thank you very much.  I am afraid I am not prepared to grant leave to appeal.  You will have to go to the Court of Appeal for permission.  Thank you all very much.