Michael Chiswick, R (on the application of) v Secretary of State for Justice & Anor
| Court | King's Bench Division (Administrative Court) |
| Judge | FORDHAM J |
| Neutral Citation | [2024] EWHC 1223 (Admin) |
| Date | 22 May 2024 |
| Year | 2024 |
| Counsel | Philip Rule Kc,Scarlett Milligan |
Neutral Citation Number: [2024] EWHC 1223 (Admin)
Case No: AC-2023-LDS-000146
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
Wednesday, 22 nd
May 2024
Before:
FORDHAM J
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Between:
THE KING (on the application of
MICHAEL CHISWICK) Claimant
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(1) SECRETARY OF STATE FOR JUSTICE
(2) PAROLE BOARD FOR ENGLAND & WALES Defendants
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Philip Rule KC (instructed by Luke and Bridger Law) for the Claimant
Scarlett Milligan (instructed by GLD) for the First Defendant
The Second Defendant did not appear and was not represented
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Hearing date: 23.4.24
Draft judgment: 9.5.24
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Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this
version as handed down may be treated as authentic.
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FORDHAM J
FORDHAM J
Approved Judgment
R (Chiswick) v (1) Justice Secretary (2) Parole Board
FORDHAM J:
Introduction
1. This is a case about the legal impact, on the lawful decision-making function and
process of the Parole Board, of unlawful action by the First Defendant (“the Justice
Secretary”) which took place in June, July and October 2022 and was the subject of the
Divisional Court’s judgment in R (Bailey) v Secretary of State for Justice [2023]
EWHC 555 (Admin) [2023] 1 WLR 2519 (“Bailey”). That action (§4 below) involved
a prohibition on state professional witnesses communicating to a parole board panel a
view on suitability for release. I am using the phrase “state professional witnesses” to
mean prison and probation officers and psychologists who are employed or engaged by
an entity for which the Ministry of Justice is responsible (Bailey §99). By “suitability
for release” I mean the statutory test for release: whether it is no longer necessary for
the protection of the public that the prisoner should remain in prison (Bailey para 8). By
“view on suitability for release” I mean an expression of an opinion or
recommendation.
2. The target for judicial review is the decision made on 13 March 2023 by a Panel of the
Second Defendant (“the Parole Board”), not to make a direction for the Claimant’s
release. The Panel was not satisfied that it was no longer necessary for the protection of
the public that the Claimant should be confined. That was because it was not satisfied
that his risks could be safely managed in the community. In considering the lawfulness
of that impugned decision-making, I have been assisted by materials filed by all three
parties, and by helpful and focused written and oral submissions by Counsel for the
Claimant and the Justice Secretary.
3. Proceedings before the Parole Board can involve distinct stages. For present purposes it
is helpful to distinguish three of these. Stage 1 involves the Justice Secretary serving
reports which he considers relevant, pursuant to rule 16 of the Parole Board Rules 2019
(see Bailey §27). Stage 2 involves the Panel Chair making a direction for the
submission of evidence or the attendance of a witness pursuant to rule 6 (see Bailey
§26). Stage 3 involves an oral hearing in which the Panel may ask or allow questions
(see Bailey §29). I will describe reports at the first stage as “Served Reports” and
reports directed at the second stage as “Directed Reports”.
4. The unlawful action which was identified in Bailey involved the making of a rule and
the issuing of two sets of Guidance. The rule was made on 28 June 2022. It said that a
report writer “must not present a view or recommendation as to the prisoner’s
suitability for release or move to open prison conditions” (see Bailey §36). It came into
effect from 21 July 2022. The July 2022 Guidance said that views on suitability for
release (or transfer to open conditions) were no longer allowed in reports or at oral
hearings (see Bailey §63). The October 2022 Guidance referred to the prohibition in
written reports and said that report writers should not attempt to give a recommendation
on suitability for release at an oral hearing (see Bailey §69).
5. In the present case there was an oral hearing on 27 February 2023, pursuant to Stage 2
(rule 6) directions made by the Panel Chair on 30 May 2022. Those “May 2022
Directions” required a Psychological Assessment Report, to be written by a Prison
Psychologist (“PP”), among other things to assess risk levels and consider whether
release could be justified based on current risk. The May 2022 Directions also required
2
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1 cases
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The King (on the application of Michael Chiswick) v Secretary of State for Justice
...I refer to my discussion in R (LC) v SSHD [2023] EWHC (Admin) at §§6–7; and see too R (Sherratt) v Bolton Council [2024] EWHC 699[2024] EWHC 1223 (Admin) Fordham J Case No: AC-2023-LDS-000146 IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION ADMINISTRATIVE COURT SITTING IN LEEDS Philip Rul......
