The King (on the application of Michael Chiswick) v Secretary of State for Justice

Hearing date: 23.4.24

Draft judgment: 9.5.24

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Introduction

This is a case about the legal impact, on the lawful decision-making function and process of the Parole Board, of unlawful action by the First Defendant (“the Justice Secretary”) which took place in June, July and October 2022 and was the subject of the Divisional Court's judgment in R (Bailey) v Secretary of State for Justice [2023] EWHC 555 (Admin) [2023] 1 WLR 2519 (“ Bailey”). That action (§4 below) involved a prohibition on state professional witnesses communicating to a parole board panel a view on suitability for release. I am using the phrase “state professional witnesses” to mean prison and probation officers and psychologists who are employed or engaged by an entity for which the Ministry of Justice is responsible ( Bailey §99). By “suitability for release” I mean the statutory test for release: whether it is no longer necessary for the protection of the public that the prisoner should remain in prison ( Bailey para 8). By “view on suitability for release” I mean an expression of an opinion or recommendation.

The target for judicial review is the decision made on 13 March 2023 by a Panel of the Second Defendant (“the Parole Board”), not to make a direction for the Claimant's release. The Panel was not satisfied that it was no longer necessary for the protection of the public that the Claimant should be confined. That was because it was not satisfied that his risks could be safely managed in the community. In considering the lawfulness of that impugned decision-making, I have been assisted by materials filed by all three parties, and by helpful and focused written and oral submissions by Counsel for the Claimant and the Justice Secretary.

Proceedings before the Parole Board can involve distinct stages. For present purposes it is helpful to distinguish three of these. Stage 1 involves the Justice Secretary serving reports which he considers relevant, pursuant to rule 16 of the Parole Board Rules 2019 (see Bailey §27). Stage 2 involves the Panel Chair making a direction for the submission of evidence or the attendance of a witness pursuant to rule 6 (see Bailey §26). Stage 3 involves an oral hearing in which the Panel may ask or allow questions (see Bailey §29). I will describe reports at the first stage as “Served Reports” and reports directed at the second stage as “Directed Reports”.

The unlawful action which was identified in Bailey involved the making of a rule and the issuing of two sets of Guidance. The rule was made on 28 June 2022. It said that a report writer “must not present a view or recommendation as to the prisoner's suitability for release or move to open prison conditions” (see Bailey §36). It came into effect from 21 July 2022. The July 2022 Guidance said that views on suitability for release (or transfer to open conditions) were no longer allowed in reports or at oral hearings (see Bailey §63). The October 2022 Guidance referred to the prohibition in written reports and said that report writers should not attempt to give a recommendation on suitability for release at an oral hearing (see Bailey §69).

In the present case there was an oral hearing on 27 February 2023, pursuant to Stage 2 (rule 6) directions made by the Panel Chair on 30 May 2022. Those “May 2022 Directions” required a Psychological Assessment Report, to be written by a Prison Psychologist (“PP”), among other things to assess risk levels and consider whether release could be justified based on current risk. The May 2022 Directions also required a Community Offender Manager (“COM”) Report, written by the COM, among other things to provide an updated risk assessment and risk management plan. I will use the phrase “Directed Report” to mean a report, such as these, which the Parole Board has directed be provided.

The Psychological Assessment Report was written by PP, Pavinpreet Owen. It was dated 8 November 2022. It recorded in a passage under the heading “conclusions”:

I am not able to make comment upon Mr Chiswick's suitability for release into the community or continuing suitability for closed conditions .

The COM Report was written by the new COM, Christy Shaw. It was dated 5 December 2022. It included this:

Following changes to legislation issued in June 2022, I am no longer able to comment on likelihood of compliance or manageability of risk in the community. I am also no longer able to make a recommendation as to the outcome of the Oral Hearing and Parole Board Decision .

So, the two Directed Reports were expressed as not “able” to answer a key question which the Panel had directed those report-writers to answer.

Under the May 2022 Directions the PP and COM who wrote the Directed Reports were required to attend the oral hearing. So was a third witness: the Prison Offender Manager (“POM”), Jennifer Williams. She was not being required to write a report, having written a POM Report for the Panel on 9 March 2022. I will use the phrase “Served Report” to mean one like the March 2022 Report, which was served by the Justice Secretary, not having been directed by the Parole Board. The POM was directed to attend the oral hearing, among other things to assess work undertaken to address offending behaviour and risk levels, and to answer questions relating to issues raised in the reports and in respect of any changes in presentation.

In its March 2023 Decision, the Panel refers to key aspects of the written reports and oral evidence which was given by the professional witnesses: the POM (Ms Williams), the PP (Ms Owen) and the COM (Ms Shaw). The Decision recorded that the Panel had itself conducted a robust and independent risk assessment, having received comprehensive evidence at the hearing from the professional witnesses.

The reason why in November 2022 the PP saw herself as “not able” to make a comment on suitability for release into the community, and the reason why in December 2022 the COM saw herself as “no longer able” to comment on matters such as manageability of risk in the community, nor make a recommendation, was because of actions of the Justice Secretary (§4 above) which were the subject of analysis in Bailey (§§10–14 below).

The Analysis in Bailey

The analysis in Bailey was, in essence, as follows. On its objectively and legally correct interpretation, the new rule prohibited only the giving of a view on suitability for release in a Served Report (§105). That was a narrow construction (§106) which had the consequence that the rule was within the Justice Secretary's rule-making power, compatible with the common law principle of the separation of powers and compatible with Article 5(4) of the ECHR (§117). Although the rule was lawful, the decision to make it was not. That rule-making decision was an unlawful exercise of the decision-making statutory power, for two reasons. First, a principal purpose in making the rule was to suppress or enable the suppression of relevant opinion evidence currently available to the Parole Board which differed from the single view being presented by the Justice Secretary to the Parole Board, which was improper and incompatible with Article 5(4) (§118). Secondly, because the Justice Secretary wrongly believed that the new rule contained a prohibition applicable to Directed Reports, he had failed to consider whether a rule limited to Served Reports was justified (§119).

The July and October 2022 Guidance were each unlawful on the recognised grounds of containing (i) a positive incorrect statement of law and (ii) a legally misleading picture portrayed as comprehensive (§§130, 138, 140). The July Guidance contained positively incorrect statements of law which would induce a person who followed the Guidance to breach their legal duty and which amounted to a serious and unwarranted interference with the Parole Board's judicial functions (§§131, 136). That was because the Guidance described a prohibition on giving a view on suitability for release even in a Directed Report and even at an oral hearing (§§132–135). The October Guidance failed to correct the position and itself described a prohibition including Directed Reports and at an oral hearing (§§141–143).

Central to the analysis which led to these conclusions in Bailey were the following key themes. (1) The Parole Board makes binding decisions about whether to release prisoners, where it has the function of a court (§§7, 14). (2) The Parole Board discharges a judicial task, of deciding what evidence is relevant and in what form that evidence can most usefully be given, including through Stage 2 rule 6 directions and Stage 3 rule 24 questioning at and conduct of oral hearings (§§26, 29, 104). (3) It is incompatible with the common law principle of the separation of powers and Article 5(4) for the Justice Secretary to exercise powers in such a way as to encroach upon or interfere with the exercise by the Parole Board of its judicial responsibilities when deciding whether or not to direct a prisoner's release (§24(b)). (4) This unlawful encroachment or interference can be one which influences the results reached by the Parole Board (§24(c)). (5) Alternatively, this unlawful encroachment or interference can be one...