DSD and NBV v The Parole Board of England and Wales

Hearing dates: 13 th and 14 th March 2018

Judgment Approved

Sir Brian Leveson P, Mr Justice Jay and

The Parole Board of England and Wales (“the Parole Board”) was established by s. 59 of the Criminal Justice Act 1967 in order, for the first time, to recommend to the Secretary of State the release on licence of those serving determinate terms of imprisonment having served not less than one third of the sentence imposed or twelve months whichever expires the later. Over the years, its powers and its responsibilities have undergone many changes and, following the expiry of the term prescribed either by the legislation or the court as the minimum term to be served for punishment and deterrence, it is now (since 1997) responsible for directing the release of those sentenced to indeterminate and certain determinate terms of imprisonment if it is satisfied that it is no longer necessary for the protection of the public that they be detained.

There is no right of appeal against a decision of the Parole Board although any can be the subject of challenge by way of judicial review on public law grounds which, in this case, are designed to adjudicate upon the legality of decisions reached by an expert body entrusted by Parliament with the function of undertaking the relevant evaluative assessment, rather than upon the merits of that evaluation. There have been many such challenges brought by prisoners on the basis either that the procedure undertaken by the Parole Board has been unfair or that, for some other reason, a decision not to release is wrong.

As far as we are aware, this series of cases is unique for a number of reasons. First, never before has a decision to direct the release of a prisoner been challenged. Because the only parties to a hearing before the Parole Board are the Secretary of State and the prisoner, it also follows that never before has judicial review been mounted by anyone other than a party to the proceedings. Second, there has never previously been a challenge to Rule 25 of the Parole Board Rules 2016 (S.I. 2016 No 1041) (“Rule 25”) prohibiting the making public of information about proceedings before the Parole Board or the names of persons concerned in the proceedings. The novelty of these challenges serves to emphasise its wholly exceptional features.

The background can be shortly summarised. On 13 ^th March 2009, John Radford, then known as John Worboys but hereafter referred to by his chosen name, was convicted after trial in the Crown Court at Croydon of 19 serious sexual offences committed between October 2006 and February 2008 involving twelve victims. On 21 ^st April 2009, Penry-Davey J sentenced him to an indeterminate sentence for public protection specifying a minimum term of imprisonment of 8 years' (being the equivalent of a determinate sentence of 16 years'), less time spent on remand. That period expired on 14 ^th February 2016 after which Mr Radford was eligible to be released but only in the event that the Parole Board was satisfied that it was no longer necessary for the protection of the public for him to be held in prison.

On 26 ^th December 2017, the Parole Board determined that incarceration was no longer necessary in Mr Radford's case and directed his release: the Parole Board's decision, including the detailed reasons for it, is referred to as “the release direction”. Thus, Mr Radford is entitled to be released into the community, on licence subject only to the jurisdiction of this court by way of judicial review.

Publication of the news of the decision generated considerable publicity and, shortly thereafter, two women (DSD and NBV) who had succeeded in litigation against Mr Radford personally and, separately, against the Metropolitan Police intimated a claim for judicial review. The difficulty for those considering such proceedings was the fact that they did not know the basis for the decision or the evidence on which the Parole Board relied.

In the event, three sets of judicial review proceedings have been instituted. The first in point of time were brought by the Mayor of London (“the Mayor”) against the Parole Board as Defendant, naming DSD and NBV, the Secretary of State for Justice (“the Secretary of State”) and Mr Radford as Interested Parties. The Mayor contends that the release direction was unlawful on Wednesbury grounds, and that the Parole Board's failure to promulgate reasons accessible to those with an interest in that decision, including himself and the victims, was unlawfully brought about by Rule 25 which was, he contended, ultra vires the enabling statute. Although nothing turns on this, the Secretary of State should have been named as a Defendant to these proceedings because he was responsible for Rule 25; the Parole Board had no discretion to depart from it.

The second set of proceedings were brought by DSD and NBV against the Parole Board and the Secretary of State for Justice, with Mr Radford as an Interested Party. NBV is one of the 12 victims who gave evidence at Mr Radford's criminal trial; DSD was not although she had obtained a settlement in proceedings brought against him (without admission of liability). The nature of their challenge is essentially the same as the Mayor's although it differs to some extent in its exact formulation.

The third proceedings were brought by News Group Newspapers Ltd against the Parole Board and the Secretary of State, with the other individuals and entities whom we have already named being Interested Parties. This challenge is limited to the vires of Rule 25; its precise formulation diverges slightly from that advanced in the other cases.

On 26 ^th January 2018, Supperstone J made an Order staying Mr Radford's release pending the hearing of the applications for permission to apply for judicial review, and anonymising the identities of DSD and NBV. On 7 ^th February 2018, given that the liberty of Mr Radford was at stake, the challenges came before the Divisional Court (Sir Brian Leveson P and Garnham J), at which, initially, Mr Radford was unrepresented although, during the course of the hearing, he instructed a solicitor who was able to advise him. In the event, there was no opposition by the relevant Defendant or any Interested Party to the standing either of DSD and NBV or of the Mayor to bring their claims, although, in relation to the Mayor, the Court ordered that the issue of standing should be reserved for consideration at the substantive hearing. Furthermore, permission was granted in each case and, with the consent of all parties, the Court ordered that the release direction together with the dossier of evidence and documents before the Parole Board (“the dossier”), with appropriate redactions, should be provided to DSD, NBV and the Mayor upon the giving of undertakings as to confidentiality. In particular, the names of reporting officers and psychologists have been replaced by acronyms which we have used throughout this judgment.

In the circumstances, it is convenient to address these various challenges in one judgment, recognising that the vires issue in relation to Rule 25 arises not in the abstract but in the specific context of the Parole Board's inability to communicate any information relevant to the release direction, still less a gist or synopsis of the reasons for it. However, it is important to underline that these are otherwise unconnected challenges because even if Rule 25 is ultra vires, it is not suggested that this would have impact on the legality or otherwise of the release direction.

Furthermore, it is inevitable that this judgment will place into the public domain far more information relating to the release direction than any intra vires rule would require. Contrary to the position advanced by the Secretary of State, for reasons which we shall elaborate, we do not consider that this fact serves to render the ultra vires challenge academic. In the circumstances, we will seek to preserve the confidentiality of matters which it is unnecessary to place in the public domain to enable our reasons, and the bases for those reasons, fully to be understood.

The Facts

The Material before the Parole Board

Mr Radford, a man of previous good character, was convicted of one count of rape, four counts of sexual assault, one count of attempted sexual assault, one count of assault by penetration and twelve counts of administering a substance with intent. These index offences related to twelve victims, aged between 19 and 33, and to crimes committed in the period of 18 months between October 2006 to February 2008.

There was no account...