R (Vary and Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 2005 |
| Date | 07 July 2005 |
| Court | Queen's Bench Division (Administrative Court) |
Court: House of Lords
Lords Bingham, Woolf, Steyn, Rodger and Carswell.
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 and K Gallafent (instructed by the Treasury Solicitor) for the Home Secretary as an interested party; K Starmer QC and E Metcalfe (instructed by Justice) as interveners.
: 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 an oral hearing for a mandatory lifer.
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, but the challenge was dismissed by the judge ([2004] Prison Law Reports 257) and the Court of Appeal ([2005] 1 Prison Law Reports 29). R appealed further: the issues argued were whether the Board, a statutory tribunal of limited jurisdiction, was able, within the powers granted by the Criminal Justice Act 1991, and compatibly with Art 5 of the European Convention (a) to withhold material relevant to R's parole review from his legal representatives and (b) instead, to disclose that material to a specially appointed advocate, who would represent R, in the absence of R and his legal representatives, at a closed hearing before the Board.
Under s. 28 Crime (Sentences) Act 1997, the Parole Board controls the release of life sentence prisoners. Under r5(1) Parole Board Rules 1997, information and reports provided to the Board were to be served on the prisoner or his legal representatives subject to certain qualifications including if disclosure would adversely affect the health or welfare of the prisoners or others (r5(2)); under r5(3), any document withheld from the prisoner was to be served on his legal representative, provided that no information be disclosed to the prisoner. Prior to the hearing of the appeal, the Parole Board Rules 2004 were introduced; rr6(2) and (3) repeated the essential parts of rr5(2) and (3) of the 1997 Rules.
R submitted that the proposal to use a SAA would breach Art 5(4), as it required that a life sentence prisoner be able to challenge any evidence relevant to the legality of detention; and that the use of an SAA required statutory authority. The Board and the Home Secretary contended that the SAA procedure was incidental and conducive to the discharge of the Board's functions, and did not breach Art 5(4).
1. On 12 December 1966 the appellant, Mr Harry Roberts, was convicted on 3 counts of murder, having pleaded guilty to 2 counts and been convicted of the third. The victims in each case were police officers, killed in cold blood at Shepherd's Bush in August 1966 when, in the course of their duty, they stopped a car in which the appellant and 2 accomplices were travelling to commit an armed robbery. The trial judge rightly described these crimes, which aroused widespread public outrage, as heinous and suggested that the case was one in which the appellant might never be released. He formally recommended that the appellant serve a term of at least 30 years, and in due course the Home Secretary of the day fixed 30 years as the appellant's punitive or tariff term. That term expired in 1996, when the appellant was aged 60. The fifth review of his case by the Parole Board, still current, began in September 2001, and this appeal concerns the procedure to be followed in that review. The issue to be determined by the House is agreed to be whether the Parole Board, a statutory tribunal of limited jurisdiction, is able, within the powers granted by the Criminal Justice Act 1991, and compatibly with Art 5 of the European Convention on Human Rights (a) to withhold material relevant to the appellant's parole review from the appellant's legal representatives and (b) instead, to disclose that material to a specially appointed advocate, who would represent the appellant, in the absence of the appellant and his legal representatives, at a closed hearing before the Parole Board.
2. Since the House is called upon to decide issues of statutory construction and legal principle, the detailed facts of the appellant's case are of minor importance. In 2000, pursuant to a recommendation of the Parole Board in December 1999, the appellant was transferred to an open prison where he was held when the current Parole Board review began in September 2001. On 1 October 2001 a parole dossier was disclosed to the appellant's solicitors containing a number of reports, all favourable to the appellant and recommending his immediate release on life licence. However, on 2 October 2001 the appellant was removed from open to closed conditions, where he has since remained. The appellant has received a general indication of the allegations against him which led to his removal, but these have not been the subject of any criminal or disciplinary charge, they have not been investigated at any adversarial hearing and they have been consistently challenged by the appellant.
3. On 11 February 2002 the Secretary of State for the Home Department, who appears in this appeal as an interested party, disclosed to the appellant further material that had been submitted by him to the Parole Board for purposes of the parole review. The material related to alleged breaches of trust committed by the appellant while held in open conditions. The appellant was notified on 22 April 2002 that further material was to be withheld from both him and his legal representatives, but would be submitted to the Parole Board (henceforward "the Board") for its consideration. It is the treatment of this further material, conveniently described as "the sensitive material", which gives rise to this appeal. The ground upon which the sensitive material has been withheld is that the safety of the source of the information or evidence would be at risk if the material were to be disclosed. It has not been suggested that there is in this case any threat to national security.
4. In August 2002 the appellant applied for judicial review of the Secretary of State's decision to withhold from the appellant and his legal representatives material which would be considered by the Board. These proceedings were compromised in October 2002 when it was, in effect, agreed that issues of disclosure should be resolved by the Board and the possible appointment of a specially appointed advocate was envisaged.
5. On 15 November 2002 Scott Baker LJ, as vice-chairman of the Board, decided that before a decision was made on the procedure to be adopted in respect of the sensitive material at the substantive hearing before the Board, that material should in the first instance be disclosed to a specially appointed advocate agreeable to both parties, who could then make representations on the disclosure issues. The sensitive material was not to be disclosed to the appellant or his legal representatives or anyone else without the consent of the Board. Scott Baker LJ proposed that a hearing should then take place to resolve the disclosure issues. He acknowledged that the procedure for appointing special advocates was statutory in other fields but he could see no reason why it should not be used in the present circumstances.
6. With the agreement of the appellant and the Secretary of State, the Attorney General appointed Mr Nicholas Blake QC to act as "independent counsel", in effect as a special advocate. In an advice written for the Board before seeing the sensitive material Mr Blake advised that resort to the special advocate procedure infringed ordinary standards of fairness. After seeing the sensitive material he submitted to the Board that it be disclosed to the appellant's solicitor.
7. On 9 May 2003 a hearing took place before Sir Richard Tucker as chairman of the Board's mandatory lifer panel. The appellant and the Secretary of State were represented, and Mr Blake attended. The hearing consisted of an open session when the appellant's solicitor made representations on his behalf, and a closed session when submissions were made about the sensitive material by the Secretary of State's counsel and Mr Blake, in the absence of the appellant and his solicitor. A decision...
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