R Neil Huxtable v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] EWHC 2494 (Admin) |
| Date | 18 September 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3861/2019 |
[2020] EWHC 2494 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Fraser
Case No: CO/3861/2019
and
Jude Bunting (instructed by SL5 Legal/Tuckers Solicitors) for the Claimant
Sir James Eadie QC and Jason Pobjoy (instructed by the Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
JUDGEMENT
Hearing date: 26 June 2020
Introduction
In these proceedings, the Claimant, a prisoner, seeks judicial review of the reconsideration procedure that was introduced by the Secretary of State for Justice into the granting of parole through the Parole Board Rules 2019 (“the 2019 Rules”). These replaced the earlier version of the rules, namely the Parole Board Rules 2016 (“the 2016 Rules”). The procedure under scrutiny in these proceedings is called the Reconsideration Mechanism and is explained in further detail below. The Claimant was sentenced in 2008 to imprisonment for public protection (“an IPP sentence”) with a minimum term of 2 years 245 days. IPP sentences are no longer available, although there are a number of prisoners still serving such sentences, which were passed upon them before this particular type of sentence was abolished in 2012. The Claimant was recommended for release in a provisional decision by the Parole Board on 21 August 2019, following a hearing of his case on 20 August 2019. He was released, after this decision became final, on 12 September 2019 and although he was subsequently recalled on 8 June 2020 that is not relevant to the issues in these proceedings. The Claim Form was issued on 3 October 2019, and an application for expedition was refused by Lang J on 11 October 2019, not least because he had already been released. The case was transferred administratively to the Administrative Court in Cardiff by an order dated 14 October 2019.
The Secretary of State for Justice (“the Defendant”) has oversight of all the functions of the Ministry of Justice, and also fulfils the functions of the Lord Chancellor. The Interested Party, the Parole Board for England and Wales (“the Parole Board”), was established in 1968 under the Criminal Justice Act 1967. Its present establishing statutory provisions are section 239 and Schedule 19 to the Criminal Justice Act 2003 (“ CJA 2003”). Section 239 and other relevant provisions are recited below at [51].
The 2019 Rules are considered in greater detail below, but essentially these introduced a 21-day period, following a provisional decision by the Parole Board to release a prisoner on licence, to permit representations to be made to the Parole Board, either by the Defendant, or by the prisoner. These representations are the means whereby either the Defendant, or the prisoner, invite reconsideration by the Parole Board of the provisional decision. The grounds for reconsideration are irrationality or procedural error. This change followed the decision by the Divisional Court in R (on the application of DSD and NBV) v (1) Parole Board of England and Wales (2) Secretary of State for Justice [2018] EWHC 694 (Admin). That judgment concerned three separate challenges in respect of a decision by the Parole Board to recommend the release on licence of a prisoner called John Radford, who upon his conviction for serious sexual offences had been called John Worboys. That prisoner had been a taxi driver who had raped and sexually assaulted a large number of women, having drugged female passengers in his taxi for that purpose. This was a very high profile case, and resulted in the Divisional Court upholding the challenge brought by two of his victims to the rationality of the decision by the Parole Board to release him on licence. This decision also resulted in the Divisional Court declaring Rule 25(1) of the 2016 Rules ultra vires section 239(5) of the Criminal Justice Act 2003. That rule had prohibited making information public about Parole Board proceedings.
The 2019 Rules were introduced by the Defendant as a result of changes made to the 2016 Rules which came about because of that judgment. This was done after a period of consideration by the Defendant, and consultation. The result was the introduction into the 2019 Rules of what is called the Reconsideration Mechanism. This did not exist in the 2016 Rules. This provides that decisions on release by the Parole Board in certain cases will be provisional for a period of 21 days, although there is the ability for that period to be shortened in some cases if an application to do so is granted by the Parole Board for this. The purpose of the Reconsideration Mechanism is to permit representations to be made to the Parole Board if there were serious concerns about procedural regularity or irrationality of the decision of the Parole Board in any particular case, something that was not possible under the 2016 Rules. Those representations for reconsideration can be made either by the Defendant, or by the prisoner, and that latter feature is something relied upon by the Defendant in defending these judicial review proceedings. The Defendant will, in some cases, make representations following consultation with victims, but can also make representations not initiated by victims. The representations lead, in some cases, to the Parole Board reconsidering its earlier, provisional, decision. In some cases, the Parole Board will decline to reconsider its own earlier decision and will reaffirm it. If no application for reconsideration is made, the provisional decision of the Parole Board becomes a final one after 21 days (or fewer days if the Parole Board grants an application to shorten the period).
At its most basic, the Claimant (and other prisoners who have provided witness statements) are of the view that by introducing this 21-day period into the parole process, delay is caused and the Parole Board has lost its ability to order that a prisoner be released immediately. The lawfulness of the 2019 Rules is challenged in these judicial review proceedings. The Defendant argues that the Reconsideration Mechanism has introduced a step in the process whereby either the Defendant, or the prisoner, can seek to have the Parole Board reconsider its provisional decision, without having to embark upon expensive judicial review proceedings in the Administrative Court of the Queen's Bench Division. This is said to introduce an inexpensive and streamlined procedure that is for the benefit of prisoners as well as victims, whose wish for further reconsideration is made through the Defendant. If no application for reconsideration is made within the 21-day period, the provisional determination by the Parole Board becomes final. The same result occurs if an application for reconsideration is made but rejected by the Parole Board. Decisions by the Parole Board on the Reconsideration Mechanism are made available publicly on www.bailii.org.
A number of witness statements were served by both parties. For the Claimant, these included statements from eight other prisoners who had experienced delay in their release due to the operation of the 21-day period, and relate to their individual circumstances. These were each serving either life sentences or IPP sentences. The Claimant himself maintained that there was delay in his release that had been caused by the operation of the Reconsideration Mechanism.
Evidence was submitted by the Defendant from the Head of the Parole Board Rules Review Team employed by the Ministry of Justice, and the Head of Reconsideration and Specialist Casework in the Public Protection Casework Section at HM Prison and Probation Service.
The Parole Board is a court, and is independent. As is conventional in such circumstances, although the Parole Board is an Interested Party, the Parole Board was not itself represented in these proceedings and did not appear. Two witness statements were submitted by the Head of Legal at the Parole Board, who is employed by the Government Legal Department. These contained purely factual information to assist the court. The Parole Board adopted a neutral stance in relation to the challenge brought by the Claimant, consistent both with the existing case law and the judicial character of the decisions made by the Parole Board. Following the hearing, the Parole Board provided more up-to-date statistics, by way of a letter to the court, rather than in a witness statement. I permitted the Claimant to make written submissions in respect of these. Similar statistics had been included in some of the evidence for the hearing, and those in the letter provided the most recent numbers available to the Parole Board.
The challenge brought by the Claimant is to the lawfulness of the Reconsideration Mechanism itself, as well as the specific way in which it had been operated in his individual case. Mr Bunting on behalf of the Claimant submitted that the reconsideration procedure is unlawful for two reasons.
Firstly, Mr Bunting submitted that the 2019 Rules are ultra vires sections 239(5) and 330(3) and (4) of the CJA 2003. It is said on the Claimant's behalf that the Defendant has used powers which permit the making of procedural rules to make substantive amendments to the powers of the Parole Board. In particular, the Claimant submits that the Defendant has removed the Parole Board's power to order a prisoner's immediate release where this is justified in...
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...effect on 2 March 2020. 26 In oral submissions Mr Rule also relies on the decision in R (Huxtable) v Secretary of State for Justice [2020] EWHC 2494 (Admin) which he says emphasises the significance of much shorter periods of delay than occurred in this case. He notes that at [42] in that ......