Abstract
Keywords
This case stemmed from the changes made to the way in which the Parole Board (an interested party) managed the receipt of the evidence from the Secretary of State for Justice (the SSJ). The changes were rooted in the Parole Board (Amendment) Rules 2022 (SI 2022/717), r. 2(22) (the “2022 rules”).
Rule 2(22) of the 2022 rules amended the Parole Board Rules 2019 (SI 2019/1038) (the “2019 rules”) and came into effect on 21 July 2022 (r. 1(2)). Rule 2(22)(a) inserted paragraph 1Z into Part B of the Schedule of the 2019 rules. Paragraph 1Z stated: (1) Reports relating to the prisoner should present all relevant information and a factual assessment pertaining to risk, as set out in the paragraphs of Part B of this Schedule, but the report writer must not present a view or recommendation as to the prisoner's suitability for release or move to open prison conditions.
In July 2022, the SSJ issued guidance (the July guidance) to report writers as to the content of their reports and the oral evidence they could give to the Parole Board, this included standard answers to be given upon being asked questions regarding a recommendation by the Parole Board panel members or the legal representative. This guidance was then amended in October 2022 (the October guidance). Both sets of guidance were included in the judgment at Annexes A and B.
On 26 January 2009, the Claimant was convicted of murder and sentenced to the mandatory life sentence. His minimum term was set at 8 years, which expired in January 2014. Upon the expiry of his minimum term, the Claimant became eligible for regular reviews of his continued detention by the Parole Board and on 10 November 2020 his case was referred to the Parole Board by the SSJ to consider whether he ought to be released (at the time he was in an open prison).
The Parole Board directed that the Claimant's case for release be considered by way of an oral hearing, and this was listed for 10 August 2022. Before the commencement of the 2022 rules, the panel chair issued directions on the management of the oral hearing. This included updated reports by the Claimant's prison offender manager and community offender manager, which offered to the panel a recommendation upon whether the Claimant ought to be released. The reports were directed to be served by 29 July 2022, and when served the reports did not express a recommendation. The served reports, therefore, did not comply with the panel chair's directions, though they did comply with the 2022 rules.
The Claimant issued judicial review proceedings on six grounds. First, the decision and/or action of the Defendant to deny the Claimant the benefit of recommendations of report writers constituted an unlawful interference with the judicial process of the independent Parole Board in breach of the common law and/or Article 5 ECHR (at [77]). Second, r. 2(22) of the 2022 rules was unlawful as a violation of Article 5 ECHR and/or ultra vires (at [78]). Third, the 2022 rules breached a legitimate expectation of the process to be followed under the 2019 rules which applied when the Claimant's review commenced (at [79]). Fourth, Defendant's instructions to report writers not to provide recommendations and not to answer judicial questions that asked for a recommendation was ultra vires and/or unlawful (at [80]). Fifth, the Defendant had failed to consult where the common law would impose an obligation to do so (at [81]). Sixth, the decision to remove recommendations from report writers was Wednesbury unreasonable as it removes evidence from a judicial body that determines whether to release convicted offenders (at [82]). The Claimant had sought interim relief: the 2022 rules ought to be disapplied so far as they impact upon his Parole Board hearing and an order that the report writers should be able to give evidence without being fettered by the guidance issued by the SSJ. HHJ Bird (sitting as deputy High Court judge) granted permission to apply for judicial review on all grounds and that interim relief would be granted in respect of the guidance, though not in respect of the 2022 rules (see R (Bailey) v Secretary of State for Justice [2022] EWHC 2125 (Admin)).
As a result of these findings, the SSJ issued further guidance (the March guidance) that was to be applied immediately that “All previous guidance (in whatever form) on giving recommendations is, as of today, revoked and should not be followed.” The March guidance therefore equivocally revoked both the unlawful July and October guidance.
On 3 April 2023, paragraph 1Z (as inserted by r. 2(22) of the 2022 rules) was omitted by the Parole Board (Amendment) Rules 2023 (SI 2023/397), r. 2(3). The situation was therefore restored to the previous position under the 2019 rules.
Commentary
The origins in r. 2(22) can be found in “bad publicity” regarding the release (or consideration for release) of prisoners in some high-profile and politically sensitive cases, and despite the legal requirement for such cases to be considered by the Parole Board (see, for example, Crime (Sentences) Act 1997, s. 28, and Criminal Justice Act 2003, ss. 246A & 255C). Rule 2(22) was therefore meant to place blame (if things went wrong and a high-profile offender committed a further offence or having been released by the Parole Board) upon the Parole Board and not upon the SSJ or other politicians. Examples of such high-profile cases include the mother of Baby P, where the report writers (all employees of the SSJ) recommended the release of a prisoner which the SSJ would later publicly condemn to the press (Application for Reconsideration by the Secretary of State in the case of TC [2022] PBRA 57). One of the purposes of r. 2(22) was to prevent this from happening again by imposing a “single view” and was clearly an improper purpose (at [118]).
As the judgments of Macur LJ, Chamberlain J and HHJ Bird emphasise, the job of the Parole Board is a difficult one and this difficult job was hindered by the interference of the SSJ in a judicial body for political reasons (at [61]). The Parole Board is a court for all intents and purposes, especially in its direction-making powers and its independence from the executive (at [1], see also R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950). However, the position of the Parole Board is a unique one in a judicial context. It is an arms-length body funded by the Ministry of Justice (at [1]) and therefore cannot be directly compared with, for example, the Supreme Court (a court created by statute: Constitutional Reform Act 2005, s. 23). In other courts one party brings forward their case (whether criminal of civil), the other party responds with their case, and then leaves the court (or jury) to decide the case. In proceedings before the Parole Board, the SSJ controls the funding (overall), how it is to be regulated (the 2019 rules as amended), what is allowed to be considered (the terms of the referral), the evidence presented (the dossier), and the witnesses are employed by the SSJ (and would not be able to give evidence in any other case in which the SSJ or the Ministry of Justice was a party (at [99])). The process is heavily influenced by the SSJ, this further interference by virtue of r. 2(22) made the role of the Parole Board difficult.
The evidence presented showed that the original intention was for the rule against recommendations to apply only to high-profile (including politically sensitive) cases, but was later changed to include all cases (this was the SSJ's position until a week before the hearing (at [85])). But, ultimately, the intention of r. 2(22) was to prevent blame being attributed to the SSJ and the government for the release of such offenders (at [49]). By removing the power to make recommendations the SSJ could apportion such blame to the Parole Board only. It was nothing less than political point scoring at the expense of public protection and was shameful.
There are undoubtedly some high-profile and politically sensitive offenders (including the parents of Baby P, John Worboys, and terrorist offenders) however these are the extreme minority of cases that come before the Parole Board. The Divisional Court gave some figures: during the period covered by the July guidance (July–October 2022), the Parole Board decided 3933 cases on the papers (of which 912 oral hearings were directed); and during the period covered by the October guidance (October 2022–February 2023), the Parole Board decided 5777 cases on the papers (of which 1432 oral hearings were directed) (at [28]). This is a total of 9710 cases overall. This figure not only shows the volume of work handled by the Parole Board, the number of cases that are not high-profile or politically sensitive cases (offenders are released from custody every day), but also the scale of the error in r. 2(22). In 9710 cases report writers could not give a recommendation as to whether the offender ought to be released or whether they ought to remain in custody. Ultimately, as has always been the case, the decision was for the Parole Board: A recommendation is a recommendation, it is not a decision or mandatory action, and the Parole Board is not bound by them. The Divisional Court emphasised that the Parole Board must avoid the delegation of its functions to witnesses (at [103]). A witness recommends but does not decide, and that goes for both positive and negative recommendations.
Whilst r. 2(22) was detrimental to some offenders, it did also benefit some offenders. Whilst the absence of a recommendation meant that those offenders whose case for release would otherwise have been stronger with a recommendation, it also meant that those offenders whose case for release was not that strong would have a greater prospect of release as witnesses could not recommend to the Parole Board that they should not be released. Rule 2(22) potentially had the opposite effect than what was intended. A view that an offender should remain in custody was as much of a recommendation as that the offender should be released: Both were equally prohibited by r. 2(22).
In practical terms, Parole Board panel members and legal representatives had to come up with different ways of gauging the views of report writers (or the strength of their client's case) to ascertain their views on release. A representative could ask “Do you believe that X could be managed in the community with the current risk management plan?” but not “Do you recommend X's release?”, which was clearly non-permissible (and which was enforced by panel chairs and witnesses).
Overall, the legacy of r. 2(22) was to prevent some offenders who could otherwise have been managed in the community from being released but also, and ultimately far worse, it was to allow some offenders who could not be managed in the community to be released.