R (Roberts) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay |
| Judgment Date | 28 July 2004 |
| Neutral Citation | [2003] EWHC 3120 (Admin) |
| Docket Number | Case No: CO/3582/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2004 |
[2003] EWHC 3120 (Admin)
The Honourable Mr Justice Maurice Kay
Case No: CO/3582/2003
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London, WC2A 2LL
Tim Owen QC and Alison Macdonald (instructed by Bhatt Murphy Solicitors) for the Claimant
Nicholas Blake QC (instructed by Treasury Solicitor), the Specially Appointed Advocate
Michael Fordham (instructed by Treasury Solicitor) for the Defendant
Javan Herberg (instructed by Treasury Solicitor) for the Interested Party
1. Harry Roberts is now aged 67. On 12 December 1966 he was convicted of and sentenced for the murder of three police officers. He received mandatory sentences of life imprisonment. The tariff period was subsequently fixed at thirty years. It expired on 30 September 1996. In June 1999 his case was considered by the Parole Board. It did not recommend release but did recommend a transfer to open prison conditions with a further review two years later. This recommendation was accepted by the Secretary of State and in March 2000 Mr. Roberts was transferred to HMP Sudbury, an open prison.
2. In September 2001 the procedure towards the current Parole Board review began. The usual range of reports was disclosed to Mr. Roberts’ solicitor, Simon Creighton of Bhatt Murphy. They included relevant reports from within the prison service and probation service. The reports were commendatory and recommended release on life licence. About a week later, on 2 October 2001, Mr. Roberts was served with a notice from Alistair McMurdo of the Lifer Unit. It was to the effect that he was being removed temporarily from HMP Sudbury “in the light of investigations into your alleged involvement in drug dealing and in bringing contraband into prison”. Since that date, Mr. Roberts has remained in closed prisons. He has never been charged with any offence in relation to the alleged drug dealing and contraband, nor have there been disciplinary proceedings relating to such matters. In February 2002 further allegations were made against Mr. Roberts and they were responded to by his solicitor on 11 March 200However, on 22 April 2002 the Secretary of State decided that Mr. Roberts should remain in closed conditions pending the completion of the current Parole Board review. At the same time, it was indicated that “certain material about the Sudbury removal to be included in the dossier will not be disclosed to your client in line with prison service policy on the withholding of information”. A dossier compiled on this basis was disclosed to Mr. Creighton on 14 May 200On 29 May 2002 Mr. Creighton wrote to the Parole Board protesting that material in the dossier provided by the Secretary of State to the Parole Board had not been disclosed to Mr. Roberts or his solicitors. The undisclosed material came to be known as “the Flag C material”.
3. Over the next few months there were two strands to the dispute between Mr. Roberts’ advisors and the Secretary of State about non disclosure. The first strand took place within the Parole Board where the deputy chairman was considering the matter. Before he had reached a conclusion, the Claimant commenced an application for judicial review (the first judicial review application). That application was resolved by a consent order dated 18 October 2002 which referred to three issues: (a) whether material to be relied on by the Secretary of State before the Parole Board should be disclosed; (b) the form of disclosure of any such material; and (c) whether some other process should be applied in relation to any such material. It was agreed that the three issues should be decided by the Parole Board. It was further agreed:
“In the event that the Parole Board considers that disclosure should not be made to (Mr. Roberts’) legal representative but should be made to a special advocate acting in the interests of (Mr. Roberts) in similar manner to special advocates appearing before the Special Immigration Appeals Commission, the Secretary of State will fund the costs of the appointment of and representation by the special advocate.”
The second strand culminated in the deputy chairman of the Parole Board (Scott Baker LJ) making a decision on 15 November 2002. The relevant parts read as follows:
“……there is no absolute principle whether disclosure should be ordered in any particular context or case and….the various interests involved must be weighed. Both parties refer to the triangulation of interests i.e. risks to the public, the interests of the prisoner and the interest of the source or sources of information.
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.”
4. On 9 May 2003 the Parole Board in the form of Sir Richard Tucker held a directions hearing. Mr. Roberts was represented by Mr Creighton in the open part of the hearing and Mr. Nicholas Blake QC as Specially Appointed Advocate (SAA). It seems that Sir Richard was then under the impression that Mr. Roberts had consented to his interests being represented by an SAA, although this was not the correct interpretation of the consent order. So far as the issue of disclosure was concerned, Sir Richard found:
“(1)……the fears of the source or sources are genuine and held on reasonable grounds….
(2) if full disclosure of [the Flag C material] were to be made to Mr. Roberts, there would be a real risk to the safety of the source or sources;
(3) in making directions on disclosure the Board must balance the interests of the various parties involved. These are (a) the public….. (b) the prisoner….and (c) the source or sources of the sensitive material.”
Sir Richard directed that the Flag C material should not be disclosed to Mr. Roberts, his solicitor or any counsel instructed by him but should be disclosed only to an SAA.
5. Mr. Creighton took issue with Sir Richard's decision and on 30 May 2003 Sir Richard held a further hearing at which Mr. Roberts was represented by Miss Phillipa Kaufmann of counsel, instructed by Mr. Creighton, in relation to “open” matters and by Mr. Blake as SAA in relation to “closed” matters. Sir Richard's decision in relation to this further decision was communicated in a letter dated 13 June 2003. The misunderstanding as to the interpretation of the consent order was resolved on the basis that, correctly construed, it meant that the SAA procedure was available in principle but that the Board was obliged to consider all other procedural options and should only adopt the SAA procedure if the triangulation of interests required it in exceptional circumstances.
6. In the decision letter of 13 June which was addressed to Mr. Creighton, Sir Richard stated:
“……it is said that you have acted for Mr. Roberts for a very long time and are therefore particularly familiar with his affairs and qualified to represent his interests. The Board fully accepts this and again asserts that there is no question about the integrity of Mr. Roberts’ legal representatives. 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.
This finding, that there was objective justification for the source's fear should disclosure be made to Mr. Roberts’ representatives, was what lay behind the Board's direction in its decision of 14 May……
In her further submissions……Miss Kaufmann sets out two respects in which she argues that Mr. Roberts would be prejudiced by the SAA procedure being adopted:
(a) The Board has already found that there can be no disclosure of even a gist to Mr. Roberts. Mr. Roberts cannot therefore in any sense whatever answer the case against him.
(b) It is fair to assume that the material is being placed before the Board because it has an important bearing on Mr. Roberts’ alleged dangerousness. If the Board accepts the source's evidence and does not direct Mr. Roberts’ release as a result, the prejudice to Mr. Roberts will not end there. Just as the Board cannot disclose the gist to him now, it will not be in a position to do so when it comes to provide reasons for its decision. Mr. Roberts will continue to be detained on the basis of allegations about which he remains completely ignorant. He will not therefore be able to address the concerns underlying his continued detention or take any steps to reduce risk.
It is true that it will be the task of the SAA to represent the interests of Mr. Roberts, but he is in that respect at a serious disadvantage to yourself, who have acted for Mr. Roberts for a very long...
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