R (Roberts) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tuckey,Lord Justice Clarke,Mr Justice Jackson |
| Judgment Date | 28 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1031 |
| Docket Number | Case No: C3/2004/0073 CO/3582/2003 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2004 |
[2004] EWCA Civ 1031
Lord Justice Tuckey
Lord Justice Clarke
Mr Justice Jackson
Case No: C3/2004/0073 CO/3582/2003
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH
ADMINISTRATIVE COURT
MR. JUSTICE MAURICE KAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim OWEN Q.C. and Alison MACDONALD (instructed by Bhatt Murphy) for the Appellant
Michael FORDHAM (instructed by Roland Phillips—Treasury Solicitors) for the Respondent
James EADIE (instructed by Treasury Solicitors) for the Interested Party
On 12 December 1966 the appellant, Harry Roberts, was convicted of the murder (by shooting) of three police officers in Shepherds Bush and sentenced to life imprisonment with a tariff sentence which was later fixed at 30 years. By October 2001 the appellant, who is now 68, was in an open prison and had good prospects of being recommended for release on life licence. This all changed when it was alleged that he had been involved in drug dealing, bringing contraband into prison and other behaviour which called into question his eligibility for release. He was transferred to a closed prison pending completion of the review of his case then in progress. In the course of this review the Secretary of State put before the Parole Board material which was withheld from the claimant and his solicitor. In due course the Board, chaired by Sir Richard Tucker, ruled that this sensitive material should only be disclosed to a specially appointed advocate (Nicholas Blake Q.C.) and not to the claimant or his legal representatives.
The appellant's challenge to this decision failed before Maurice Kay J. (2003) EWHC 3120 (Admin), [2004] 2 AER 776 and he now appeals to this court. His contention is that the specially appointed advocate (SAA) procedure was not an option open to the Board. This is obviously an important point of principle.
Before the judge the appellant also contended that this procedure was unjustified in his case. This challenge failed as well, but is not pursued on appeal. It involved the judge looking at the sensitive material, hearing submissions from Mr Blake and giving a separate judgment in private. As we only have to deal with the point of principle we have not seen the sensitive material, heard submissions from Mr Blake or sat in private.
The facts need little elaboration. Sir Richard Tucker's ruling was made following directions given by the Deputy Chairman of the Board (Scott-Baker L.J.) on 15 November 2002. He said:
Having considered the sensitive material, in my view the way ahead is as follows. It should in the first instance be disclosed to a special advocate agreeable to both parties. This would be on the basis that it would not be disclosed to Roberts, his lawyers, or anyone else without the consent of the Parole Board. The special advocate procedure is I think a statutory one in other fields (SIAC) but I can see no reason why it should not be used in the present circumstances and it does not prejudice Roberts provided other options remain open to argument thereafter.
I think a hearing then should take place before the legal chairman of the panel that is to hear Roberts' case … There can then be argument both as to the law and as to disclosure, including any issues such as whether some of the sensitive material might be disclosed and what, if any, broad information Roberts might be given about the nature of the withheld material.
Sir Richard Tucker held two directions hearings. Following the first hearing and after considering the sensitive material, submissions on behalf of the claimant and closed submissions on behalf of the SOS and by Mr Blake Sir Richard found:
(i) with regard to the sensitive material… the fears of the source or sources are genuine and held on reasonable grounds …;
(ii) if full disclosure were to be made to Mr Roberts there would be a real risk to the safety of the source or sources;
(iii) in making directions on disclosure the Board must balance the interest of the various parties involved. These are :
(a) the public – the Board's ultimate purpose is to protect the public. Moreover, it is important that all judicial decisions are made on the basis of the broadest information available;
(b) the prisoner – the prisoner has the right to proper representation and examination of the evidence. This is not however an absolute right. The Parole Board Rules, whilst not specifically applicable to mandatory lifers… acknowledge that the public interest may restrict the prisoner's right in this respect …;
(c) the source or sources of the sensitive material – these parties have the right under Articles 2 and 3 of the ECHR and under common law, to protection.
The integrity of the claimant's legal representatives, including his solicitor who had acted for him for many years, was not in question but in his decision letter after the second hearing Sir Richard said:
The Board is however quite satisfied that disclosure of the sensitive material to Mr Roberts' representatives would lead to real risk of inadvertent disclosure to Mr Roberts by his representatives, having regard to the circumstances of the case and the unusual pressures that would be placed upon them.
Sir Richard confirmed his earlier directions about disclosure and that the decision on the claimant's eligibility for release on life licence would be made following a full hearing at which first the disclosed evidence would be examined before the SAA, the claimant and his representatives and then the sensitive material in the absence of the claimant and his representatives.
Although the directions did not spell out what Mr Blake was to do it is common ground that it was intended that he would perform the same functions and be the subject to the same restrictions as a special advocate appointed under the Special Immigration Appeals Commission (Procedure Rules) 1998. Thus he was required to represent the interest of the appellant by making submissions to the Board at any closed hearings, cross examine witnesses at any such hearing and make written submissions to the Board. In performing these functions he was not to disclose any sensitive material to or obtain instructions from the prisoner or his representatives, although they could and had provided him with as much information about the case as possible. At the directions hearings Mr Blake had submitted that the SAA procedure was unnecessary and inappropriate. Of these submissions Sir Richard said:
Although the Board generally accepts Mr Blake's reasoning, the Board is satisfied that the SAA procedure does have a place outside the immediate context of terrorism and intelligence gathering (it may be that Mr Blake himself accepts that) and that it may have a part to play in cases like the present where the public interest, balanced against the other interests, may require it.
Despite the possibility of prejudice to Mr Roberts in making representations to the Board and having taken carefully into account all the points made on Mr Roberts' behalf, the Board is entirely satisfied that the balance of interest is firmly in favour of the appointment of the SAA to represent Mr Roberts in relation to the sensitive material. The Board is also satisfied that with the co-operation of all parties the appointment of an SAA can secure acceptable standards of fairness for Mr Roberts.
The Board now derives its authority from section 32 of the Criminal Justice Act 1991 as amended by the Crime Sentences Act 1997. By section 32 (1) (b) the Board is to have the functions conferred by Chapter II of Part II of the 1997 Act in respect of life prisoners. Chapter II of the 1997 Act contains section 28 which, as amended, requires the Secretary of State to refer the sentence of a life prisoner to the Board at his request, after he has served the tariff part of his sentence, or two years have elapsed since any previous reference has been disposed of. By section 28 (5) once a prisoner has served the tariff part of his sentence and the Board has recommended his release it is the duty of the Secretary of State to release him on licence. However section 28 (6) says that:
The Parole Board shall not give a direction under sub-section (5) above with respect to a life prisoner to whom this section applies unless –
a) the Secretary of State has referred the prisoner's case to the Board; and
b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
Section 32 of the 1991 Act contains further provisions which require the Board to deal with cases in which it gives directions on consideration of "all such evidence as may be adduced before it" (4). The evidence referred to includes "any documents given to it by the Secretary of State; and any other oral or written information obtained by it" (3). "Without prejudice to sub-sections (3) and (4) the Secretary of State may make rules with respect to the proceedings of the Board including ….".
The Parole Board Rules 1997 were made under section 32 (5) but they only apply to discretionary life prisoners. There are no rules relating to mandatory life prisoners although we were told that new rules relating to all life prisoners are under consideration. Changes to the legislation since the early 1990s have been in response to decisions of the ECtHR. Before the decision in Stafford v UK [2002] 35 EHRR 1121 the Secretary of State retained the right to decide whether a mandatory life prisoner should be released or recalled. Following this decision section 28 of the 1997 Act was...
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