Adrian John Bailey v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur,Mr Justice Chamberlain |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWHC 821 (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 821 (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
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Rule KC 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
Ben Collins KC, Nicholas Chapman and Michael Rhimes (instructed by the Parole Board) for the Interested Party
Hearing date: 4 April 2023
Approved Judgment
This judgment was handed down remotely at 3.00pm on 5 April 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
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) of the Parole Board Amendment Rules ( SI 2022/717: “the 2022 Amendment Rules) and in promulgating two sets of guidance about the effect that rule (“the July Guidance” and “the October Guidance”). The guidance was addressed to staff employed or engaged by HM Prison and Probation Service (“HMPPS staff”) who give written and oral evidence to the Parole Board (“the Board”). It instructed HMPPS staff not to express a view on the question whether a prisoner is suitable for release or transfer to open conditions (“the ultimate issue”).
We left four issues for determination at a subsequent hearing, which was fixed for 4 April 2023:
(a) relief;
(b) costs;
(c) permission to appeal; and
(d) the issues identified at [161]–[165] of our first judgment relating to the application of the law of contempt of court.
Developments since the first judgment
In the period between the handing down of our judgment and the subsequent hearing, the Secretary of State has taken steps to inform HMPPS staff that the July and October Guidance has been withdrawn. On 15 March 2023, the day we handed down judgment, an email was sent to Regional Probation Directors, containing information which was then “cascaded” to their staff. It contained this:
“We are considering the Court's judgment and next steps carefully and will issue guidance in due course. In the meantime, we wanted to update colleagues urgently today on what the judgment means in practice now. The Parole Board will update its members on the judgment today too. What this judgment means for report writers attending Parole Hearings or submitting reports over the next few days is:
• All previous guidance (in whatever form) on giving recommendations is, as of today, revoked and should not be followed.
• Reports prepared for the dossier should not contain any recommendations on suitability for release, in accordance with the Parole Board Rules 2019 as amended by the 2022 Amendment Rules. This does not apply to any reports written to comply with a direction of by the Parole Board. This means that whilst we should not include recommendations in the dossier, as a matter of course, if the Parole Board directs such a report, that direction must be complied with.
• Report writers and witnesses should answer any questions asked by the Board that they feel able to answer, having regard to all the circumstances of the case, including their knowledge of the case and area of expertise. This includes questions that the Parole Board may ask on whether or not the witness recommends release, or whether someone can be safely managed in the community, if the witness feels able to answer those questions.”
On 17 March 2023, an email was sent to Prison Group Directors, Heads of Community Integration, Governors and Directors of Private Prisons and copied to Senior Civil Servants and Heads of Group. These staff were asked to “cascade as quickly as possible to staff writing reports for the Parole Board”. The email said that the relevant templates had been updated to provide a box for practitioners to complete a recommendation, but “only where a recommendation is directed by the Parole Board. In all other circumstances, the box should remain blank” (emphasis in original). The email went on as follows:
“It is important to remember that:
• Reports prepared for the dossier should not contain any recommendations on the prisoner's suitability for release, in accordance with the Parole Board Rules 2019 as amended by the 2022 Amendment Rules. This does not apply to any reports written to comply with a direction of the Parole Board. This means that whilst we should not include recommendations in the dossier as a matter of course, if the Parole Board directs such a report, that direction must be complied with.
• Report writers and witnesses should answer any questions asked by the Parole Board that they feel able to answer, having regard to all the circumstances of the case, including their knowledge of the case and area of expertise. This includes questions that the Parole Board may ask on whether or not the witness recommends release, or whether someone can be safely managed in the community, if the witness feels able to answer those questions.” (Emphasis in original.)
These emails were forwarded to us on 28 March 2023.
Then, on 30 March 2023, the Secretary of State made and laid before Parliament the Parole Board (Amendment) Rules 2023 (SI 2023/397: “the 2023 Amendment Rules”), which came into force on 3 April 2023. The Explanatory Note accompanying these Rules makes clear that they were made “to take account of a court judgment”. They amend the Parole Board Rules 2019 to omit paragraph 1Z of the Schedule and replace it with a new Part A1 (headed “Secretary of State view on suitability for release”) as follows:
“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. Report writers' may include in the report their professional opinion on whether the prisoner is safe to be managed in the community, or moved to open prison conditions, provided that they feel able to give such an opinion. Any such opinion should be made by reference to their particular area of competence, as well as to their specific interactions with the prisoner.
2. Where considered appropriate, the Secretary of State, as a party to the proceedings, will present an overarching view on the prisoner's suitability for release in accordance with the statutory release test.”
Various other consequential amendments were also made.
As can be seen, the prohibition on report writers giving their view on the “ultimate issue” has now gone, even as respects the reports forming part of the initial dossier; and the Secretary of State's view is now described as an “overarching view” given “as a party to proceedings”, rather than a “single Secretary of State view”.
The 2023 Amendment Rules were drawn to our attention by the claimants' solicitors on 31 March 2023. On 3 April 2023, we were shown a new guidance document (“the March 2023 Guidance”) dated 31 March 2023, which makes clear that all previous guidance has been “found unlawful, revoked and must not be followed” and which gives further guidance about how HMPPS staff should write reports and about oral hearings before the Board. We have annexed that document to this judgment.
(a) Relief
Before the 2023 Amendment Rules were made, there was a dispute about the appropriate form of relief. The Secretary of State had submitted that we should exercise the power in s. 29A of the Senior Courts Act 1981 to grant a suspended quashing order without retrospective effect. But rule 2(22) of the 2022 Amendment Rules has now been superseded. The result is that there is nothing left to be quashed. This means that an order under s. 29A is not available. It follows that the only form of relief we can now grant in relation to rule 2(22) is a declaration that the decision to make that rule was unlawful.
Both the July and the October Guidance have now been withdrawn. Accordingly, the only relief necessary or appropriate is a declaration that the decisions to promulgate these documents were unlawful in the respects set out in our first judgment.
There is no power to deprive a declaration of any retrospective effect. That is a consequence of the way s. 29A was drafted.
From the publication of the 2023 Amendment Rules until the morning of the hearing on 3 April 2023, it appeared that there was agreement about the appropriate form of relief, namely, declarations that the decisions to make rule 2(22) of the 2022 Amendment Rules, and the July and October Guidance were unlawful.
Mr Philip Rule KC, who appears with Mr Michael Bimmler for the claimants, submitted that the March 2023 Guidance is still problematic in several respects. We do not set these out here, because we do not consider that the lawfulness of the March 2023 is an issue for us to decide in this claim. The decisions originally challenged in this claim were the decisions to make rule 2(22) and to make and promulgate the July Guidance. Permission was granted to amend the claim to challenge the October Guidance, because that challenge could be heard on the timetable which had been fixed without unfairness to the Secretary of State, and there were public interest reasons to allow the amendment. To allow the claimants a further amendment to challenge the March 2023 Guidance would be unfair to the defendant...
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