Adrian John Bailey v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur,Mr Justice Chamberlain |
| Judgment Date | 15 March 2023 |
| Neutral Citation | [2023] EWHC 555 (Admin) |
| Docket Number | Case No: CO/2724/2022 and CO/3259/2022 |
| Court | King's Bench Division (Administrative Court) |
The King on application of
and
[2023] EWHC 555 (Admin)
Lady Justice Macur
and
Mr Justice Chamberlain
Case No: CO/2724/2022 and CO/3259/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Rule and Michael Bimmler (instructed by Instalaw Solicitors) for the Claimants
James Strachan KC, Scarlett Milligan and Myles Grandison (instructed by the Government Legal Department) for the Defendant
Nicholas Chapman (instructed by the Parole Board) for the Interested Party
Hearing dates: 1 and 2 March 2023
Approved Judgment
This judgment was handed down remotely at 9.30am on 16 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Lady Justice Macur AND Mr Justice Chamberlain
Lady Justice Macur and
Introduction and summary
The Parole Board (“the Board”), although funded by the Ministry of Justice (“MOJ”), is an arms-length body with important judicial functions. These include deciding whether prisoners with indeterminate sentences who have completed their minimum terms, or who have been released and recalled to prison, should be released into the community. The law requires this function to be discharged by a body which has the essential attributes of a court – i.e. one which is, and is seen to be, impartial and independent of the executive. It is well established that the Board satisfies these criteria in principle. It is equally well established that, when exercising powers in relation to the Board, the Secretary of State must not to do anything that undermines or would be perceived as undermining the independence of the Board or that encroaches upon or interferes with the exercise by the Board of its judicial responsibilities.
In this claim, the claimants were prisoners serving indeterminate sentences whose cases were before the Board and who were awaiting oral hearings when, on 28 June 2022, the Secretary of State exercised his statutory powers to make the Parole Board (Amendment) Rules ( SI 2022/717: “the Amendment Rules”). These amend the rules governing proceedings before the Board. Rule 2(22) of the Amendment Rules came into force on 21 July 2022. It prohibited staff employed or engaged by HM Prison and Probation Service (“HMPPS staff”) from including in their reports a view or recommendation on the question whether a prisoner is suitable for release or transfer to open conditions (“the ultimate issue”). It also provided that, where considered appropriate, the Secretary of State would present a “single view” on the prisoner's suitability for release. To explain the implications of the prohibition for HMPPS staff preparing reports for the Board and giving evidence at oral hearings, the Secretary of State issued guidance (“the July Guidance”), which was used as the basis for staff training.
The claimants challenged the decision to make rule 2(22) on the grounds that it: amounted to an unlawful interference with the independent judicial determination of the legality of detention, contrary to common law and/or Article 5(4) of the European Convention on Human Rights (“ECHR”) ( ground 1); was ultra vires the enabling power, construed in accordance with Article 5(1) and (4) ( ground 2); frustrated the claimants' legitimate expectation that the rules would remain as they were when their cases were first referred ( ground 3); was made without prior consultation and therefore unlawful ( ground 5); and was irrational ( ground 6). They also challenged the July Guidance as unlawful ( ground 4).
In the first claimant's case, an application for interim relief was successful before HHJ Bird (sitting as a High Court Judge). He granted an interim declaration that the July Guidance was of no effect in that case. The Secretary of State gave an undertaking to similar effect in the second claimant's case. In the light of the points made in the claim and the judgment of HHJ Bird, the Secretary of State “revoked” the July Guidance, without expressly disavowing its contents, and produced a new version (“the October Guidance”). Chamberlain J granted the claimants permission to amend their claim to include within ground 4 a challenge to the October Guidance, which they said was subject to many of the same criticisms as the July Guidance.
Our conclusions, in summary, are as follows:
(a) Rule 2(22) applies only to those reports forming part of the dossier which the Secretary of State is required to serve when referring a case to the Parole Board. It does not prevent the Board from using its case management powers to direct a witness to provide a further report containing a view about the prisoner's suitability for release or transfer to open conditions (“the ultimate issue”); nor does it affect the witness's legal obligation to comply with such a direction. Equally, it does not prevent the Board from asking the witness for a view on the ultimate issue during the oral hearing; nor does it affect the witness's legal obligation to answer such a question.
(b) On its true, narrow construction, the result achieved by rule 2(22) was within the power conferred by s. 239(5) of the Criminal Justice Act 2003 (“the 2003 Act”), read compatibly with Articles 5(1) and (4) ECHR.
(c) However, the decision to make rule 2(22) was nonetheless unlawful for two reasons:
(i) One of the Secretary of State's principal purposes in making it was to suppress or enable the suppression of relevant opinion evidence which differed from his own view in cases where he expressed one. That purpose was improper. The decision to make the rule was an attempt by a party to judicial proceedings to influence to his own advantage the substance of the evidence given by witnesses employed or engaged by him and an impermissible interference with a judicial process. The fact that the attempt failed because the drafters did not achieve his purpose does not save the decision from being unlawful.
(ii) There is no evidence that the Secretary of State ever considered whether a prohibition on the expression of views on the ultimate issue was justified if its application was limited to the reports sent with the referral. The reasons currently advanced for it do not provide a rational justification for rule 2(22) on its correct, narrow construction.
(d) Even on the footing that rule 2(22) had been lawfully made, the decision to promulgate the July Guidance was unlawful. It instructed HMPPS witnesses that they must not include any view on the ultimate issue in their written reports, without distinguishing between the reports to which the prohibition applied and those to which it did not. It also instructed those witnesses to refuse to answer questions about their views on the ultimate issue. There was no legal basis for these instructions, which would induce report writers to breach their legal obligations. The July Guidance was therefore unlawful.
(e) Although the July Guidance was “revoked” and replaced by the October Guidance, HMPPS staff were never told that the former misstated the law or that they should disregard the training they had recently received based on it. On the contrary, they were given the impression that it was simply being reissued in a more concise form. No further training was offered. In any event, even taken alone, the October Guidance would be understood by HMPPS staff as instructing or encouraging them not to offer views on the ultimate issue even when (i) they have such views and (ii) they have been directed to provide them in reports or asked for them in oral hearings. In these respects, the October Guidance continued to misstate the law and to induce staff to breach their legal obligations. The decision to promulgate it was therefore also unlawful.
(f) The July Guidance and October Guidance were bound to, and did, cause report writers to breach their legal obligations in large numbers of cases. It is not possible to say with certainty what effects this guidance has had in the cases determined while it was in force. But its promulgation may well have resulted in prisoners being released who would not otherwise have been released and in prisoners not being released who would otherwise have been released.
(g) The Secretary of State did not consult outside the MOJ before making rule 2(22). If he had done so, he might have avoided the unedifying confusion which appears to have prevailed within the MOJ and HMPPS about the effect and consequences of rule 2(22). However, there was no statutory obligation to consult and no promise or sufficiently consistent practice of doing so. The failure to consult was therefore not unlawful.
The status and functions of the Parole Board
The Board is established under s. 239 of and Sch. 19 to the 2003 Act. Section 239 provides insofar as material as follows:
“(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—
(a) any documents given to it by the Secretary of State, and
(b) any other oral or written information obtained by it;
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.
(4) The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to subsections (3) and (4), the Secretary of State may make rules with respect to the...
To continue reading
Request your trial
-
Adrian John Bailey v Secretary of State for Justice
...Justice Chamberlain Lady Justice Macur and Introduction and summary 1 In a judgment handed down on 15 March 2023 (neutral citation [2023] EWHC 555 (Admin): “the first judgment”), we gave our reasons for concluding the Secretary of State for Justice had acted unlawfully in making rule 2(22)......
-
Reginald Zenshen v Secretary of State for Justice
...the defendant's policy of “suppressing” (as the Divisional Court put it in R (Bailey) v Secretary of State for Justice [2023] EWHC 555 (Admin) at [4]) views being advanced by witnesses that ran contrary to his own. The policy criterion of “public confidence” adds nothing beyond risk and is......