R (Roberts) v Parole Board
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2004 |
| Date | 28 July 2004 |
| Court | Court of Appeal (Criminal Division) |
Court and Reference: Court of Appeal; C3/2004/0073
Tuckey and Clarke LJJ, Jackson J
Appearances:T Owen QC and A Macdonald (instructed by Bhatt Murphy) for R; M Fordham (instructed by the Treasury Solicitor) for the Board; J Eadie (instructed by the Treasury Solicitor) for the Home Secretary. Justice provided written submissions.
Whether the Parole Board was able to appoint a special advocate to consider sensitive material which was not released to the prisoner's solicitors
In 1966, R was given a mandatory life sentence for the murder of 3 police officers; his tariff was set at 30 years. In March 2000, following a recommendation from the Parole Board, he was transferred to open prison conditions. In September 2001, reports for the next review of his detention were disclosed to his solicitor; his release was recommended. However, in October 2001 he was moved to closed prison conditions after allegations that he was involved in drug dealing and bringing contraband into prison; he was never charged with any offence or subject to any disciplinary proceedings, though further allegations were made. It was indicated that material relating to the allegations would be placed in the dossier to the Parole Board but not disclosed to R. After correspondence and litigation, it was agreed that the Board should decide on whether the material should be disclosed and, if so, in what form; and that if there was no disclosure to R or his solicitor, there should be disclosure to a special advocate acting in the interests of R and funded by the Home Secretary. The Parole Board Deputy Chairman (a Court of Appeal judge) directed initial disclosure to a special advocate agreeable to both parties, which was done. There was then a directions hearing in front of a legal member of Board (a retired High Court judge), part of which was in private with a special advocate; it was found that disclosure, even of the gist of the allegations, would produce a real risk to the source or sources of the sensitive information. This was upheld after further representations were made on behalf of R and by the special advocate. The special advocate had advised that the procedure was inappropriate.
The decision of the Board was challenged by judicial review. It was argued that there was a breach of Art 5(4) combined with Art 14, on the basis that material withheld from discretionary lifers had to be disclosed to their lawyers (r5 Parole Board Rules 1997), and so the treatment of Mr Roberts as a mandatory lifer was discriminatory; and that the special advocate procedure was unfair and disproportionate. In relation to the latter point, it was common ground that under the Board's inherent powers to control its own proceedings in relation to mandatory life prisoners it might appoint a special advocate in exceptional circumstances. R submitted that this should be limited to situations involving national security. It was argued that the Board should have adopted the procedure set out in r5 of the 1997 Rules, and that the Home Secretary had pre-empted the decision by indicating to the source of the material that it would be relied on only if a special advocate procedure was followed.
The Board argued that it could appoint a special advocate in relation to discretionary lifers as well and so there was no differential treatment; and that the special advocate process was necessary on the facts because of the risk of inadvertent disclosure but was nevertheless fair. The proceedings were conducted partly in private (which lead to a separate judgment).
The judge ([2004] Prison Law Reports 257) held that there was no differential treatment because the special advocate procedure could be used in relation to discretionary lifers also; and that the appointment of a special advocate was appropriate on the facts. On appeal, R argued that there was no power to appoint a special advocate in any life sentence case, since such a power could only be conferred expressly by statute, and that if this was wrong then the power could only be used in cases involving national security. It was further submitted that the procedure offends the principles of fairness by denying the prisoner the right to see and answer all adverse material presented to the Board and to be represented by counsel who is acting for and responsible to him.
1. On 12 December 1966 the appellant, Harry Roberts, was convicted of the murder (by shooting) of 3 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 QC) and not to the claimant or his legal representatives.
2. The appellant's challenge to this decision failed before Maurice Kay J [2004] Prison Law Reports 257 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.
3. 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.
4. The facts need little elaboration. Sir Richard Tucker's ruling was made following directions given by the Deputy Chairman of the Board (Scott-Baker LJ) 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.
5. Sir Richard Tucker held 2 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 Secretary of State 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;
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(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...
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R (Vary and Others) v Secretary of State for the Home Department
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