The High Court has allowed the judicial review claim in R (Chiswick) v Secretary of State for Justice and the Parole Board [2024] EWHC 1223 (Admin), in what is the first case to have considered the impact upon an individual’s concluded parole hearing of the unlawful actions of the Secretary of State for Justice previously identified in the Bailey litigation.

Philip Rule KC, of No5 Chambers, acted for the Claimant, instructed and assisted by Martin Bridger of Luke and Bridger Law.

This judgment provides the only decided case about the legal impact on the lawful decision-making function and process of the Parole Board of the unlawful action by the then Justice Secretary in 2022 that 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. That action had imposed an unlawful prohibition on professional witnesses (such as probation officers and psychologists) communicating to a parole board panel their view on suitability for release.

Mr Justice Fordham records that he was assisted “by helpful and focused written and oral submissions by Counsel for the Claimant and the Justice Secretary”.

The target for this judicial review was the decision made on 13 March 2023 by a panel of the Parole Board. The Court gave careful thought to the analysis of the vitiating impact of the particular unlawfulness that the Bailey judgment exposed.

The Court identified the question to ask is: In the individual case, was the Bailey unlawfulness operative, in the sense of bearing on and being relevant to the Panel’s decision-making? But in the alternative, also asked: In the individual case, did the Bailey unlawfulness render the Panel’s decision-making procedurally unfair?

The answer to either question was Yes.

The Court also considered the value of fairness in the parole hearing context, and noted that three familiar values of fairness were relevant and were materially compromised, namely: (i) the liability to result in better outcomes by ensuring that the decision-maker receives all relevant information and that it is properly tested; (ii) the avoidance of a sense of injustice that the person who is the subject of the decision will otherwise feel; and (iii) the rule of law. The “sense of injustice” is a practical reality.

There were additional facts available to support the same outcome – though these were not essential elements. The Panel was not only deprived of the views on suitability for release, but was deprived of the changed position as to those views, in favour of release, subject to the third professional witness of whose view it and the other witnesses were also deprived. The Panel recorded and placed significant weight on those views which the professional witnesses were able to present, but without appreciating the bottom line view on acceptability for release on which it would surely also have placed significant weight.

Rejecting a line of argument advanced by the Secretary of State the learned Judge found there to be no evidence to support an inference that the Panel subsequently decided that views on suitability for release did not matter. The Panel got on with its own risk assessment in the absence of those views, the witnesses being known to have been prohibited – or inhibited – from giving their views. This evidence would have come in, while thinking was at a formative stage. The hearing would have been different. The deliberation stage would have been different. The reasoning would have been different.

The judgment also addressed and provides guidance concerning two procedural points.

First, regarding an agreed List of Issues (required by CPR PD54A §14.7) it was noted that this “is a helpful tool and an important discipline. But it should not become a straitjacket or a trap. The framework for the case is the grounds of claim and resistance, within which arguments crystallise in the skeleton arguments, and the judicial review court can look to get to a legally correct characterisation provided always there has been no ambush or unfairness”.

Secondly, there was also a finding of a failure of the duty of candour on the part of the Secretary of State. The judgment noted that there had been resistance to permission: “The Justice Secretary had a choice. Permission for judicial review does not have to be resisted (Judicial Review Guide 2023 §8.3.5). But if the choice is taken to resist permission, it is necessary to ensure candour due diligence, not defer it”

The Court was clear that “candour is the institutional responsibility of the public authority and internal communication is key”.

The defendant had chosen to ask the question of the witnesses: what would their views have been if not prohibited wrongly from providing them to the panel. The Summary Grounds and materials were finalised and served, without disclosure of the asking of the question or the POM’s answer which tended to undermine the defence and support the claim. Nor was the prison psychologist’s response then provided, filed and served. It was because the Claimant made his applications – following information directly given to him – that the emails emerged at the permission stage.

The Judge concluded that “I do not think the applicable duty of candour was discharged, as at the time of the filing of the summary grounds, nor as at 18.7.23. It is important to record this”.

Philip Rule KC is Head of Public Law at No5 Chambers.