High Court protects right of parole Board to obtain evidence unhindered by Secretary of State

Tue, 09 Aug 2022

In a judgment urgently handed-down on 9 August 2022 (R (Bailey) v SSJ [2022] EWHC 2125 (Admin)) the Administrative Court has granted interim relief to ensure that the Parole Board hearing a review of the continued need or otherwise for detention of an individual shall receive the evidence it chooses to.

Philip Rule of No5 acts for the Claimant, instructed by Gintare Daukintyte, of Instalaw Solicitors.

The case follows the Secretary of State for Justice introducing changes to the Parole Board Rules in July 2022 (by statutory instrument S.I. 2022/717) without prior consultation by which it appears the aim is to prevent the expert report writers from providing their recommendations – positive or negative – to the judicial body which has hitherto received their evaluations of progress made and manageability of risk on licence. (Read more about the rule change here.

Beyond the rules a detailed guidance was delivered that sought to instruct witnesses as to what they could or could not say at a hearing, and which was accompanied by 15 training sessions run to ensure probation officers and psychologists were told what they should be saying in evidence and what the  Secretary of State wished to prevent them from answering.

Whilst the full claim is yet to be heard, the Court accepted that for the imminent parole hearing the witnesses must not be prevented from giving their full evidence and answering all questions put to them.

The Judge said:

"If I refuse relief, I would be permitting the Secretary of State to have independent control over the evidence given to the panel at the claimant’s hearing. There is a strong risk that I would therefore be allowing an interference with the judicial processes of the Board and an interference with its statutory duty to consider all evidence that might be adduced before it."

"If I grant interim relief, I would be allowing the Panel to deal with matters as it thinks appropriate and entrusting the Panel with the right to decide on its own procedure, to ask questions it wishes to ask and thereby to receive evidence it might consider relevant. It will then be in a position to deal with the evidence in accordance with the law and the rules as it interprets them."

"Bearing in mind that the guidance is not primary or secondary legislation, does not support the amended rules and appears to interfere with the judicial functions of the Board and bearing in mind the claimant’s right to a fair and impartial hearing pursuant to Art.5(4) the balance of convenience in my view comes down strongly in favour of granting the relief sought."

The Court also rejected an attempt by the Secretary of State to rewrite the guidance during the hearing of the application, by which the Secretary of State conceded parts of what the instruction said went further than it should and suggested officers would be provided with new instruction along amended lines – though it remains unclear when or if this suggested change shall be given effect.

The Judge expressed surprise at the hearing that the Parole Board itself remained a non-participating interested party in the proceedings and did not make any submissions to the Court.

It is anticipated that this judgment will be welcomed by the unions representing probation officers who have pointed out the risk to the public that the changes introduce in cases where they would wish to recommend remaining in custody, for example. Read more here.

The judgment on interim relief can be found here


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