Thu, 06 Apr 2023
On 4 April 2023, the Divisional Court (Macur LJ and Chamberlain J) held a further hearing in the case of R (Bailey and Morris) v Secretary of State for Justice, in which the same constitution of the Court had previously held ( EWHC 555 (Admin)) that new Rules and Guidance issued by the Secretary of State to prevent professionals from making recommendations in parole reviews were unlawfully made. For details see previous article here.
The two Claimants, represented by No5 barristers Philip Rule KC leading Michael Bimmler, had successfully challenged an amendment made to the Parole Board Rules in 2022 – specifically, Rule 2(22) of the Parole Board (Amendment) Rules 2022 – as well as two sets of internal guidance about the amendment, issued by the Secretary of State to his staff in July and October 2022 respectively.
In this further hearing, the Court considered questions relating relief, and contempt of court. In this important decision it has confirmed that powers exist to protect the judicial proceedings before the Parole Board from interference.
The Court handed down its second judgment on 5 April 2023 ( EWHC 821 (Admin)). It noted that the Secretary of State had withdrawn the guidance issued in July and October 2022 and had replaced it with new guidance. It also noted that the Secretary of State had recently made new rules, the Parole Board (Amendment) Rules 2023 (SI 2023/397) which came into force on 3 April 2023. The new Rules provide, as far as material:
“Reports relating to the prisoner should present all relevant information and a factual assessment pertaining to risk, as set out in the paragraphs of Part B of this Schedule. Report writers’ may include in the report their professional opinion on whether the prisoner is safe to be managed in the community, or moved to open prison conditions, provided that they feel able to give such an opinion. Any such opinion should be made by reference to their particular area of competence, as well as to their specific interactions with the prisoner.
Where considered appropriate, the Secretary of State, as a party to the proceedings, will present an overarching view on the prisoner’s suitability for release in accordance with the statutory release test.”
In light of the amendments to the Rules and the promulgation of new guidance, there remained no need for any quashing order; however, the Court granted declarations that the previous rule in issue – Rule 2(22) of the Parole Board (Amendment) Rules 2022 – and the previous guidance, were unlawful.
The Divisional Court then turned to the consideration of two questions relating to contempt, on which it had invited submissions in its first judgment:
- If a professional witness employed by the MoJ is directed to produce written evidence or answer questions orally as to their view on suitability for release, and the witness can reasonably be expected to have such a view, but declines to provide it, would the witness be in contempt of court?
- If so, by what procedure would the contempt be addressed? (Proceedings for contempt of other tribunals may be brought by the law officers before the High Court.)
The Court decided that the answer to the first question was “Yes”. It held in particular that the law of contempt applies to Parole Board proceedings, as the Parole Board exercises the judicial powers of the state.
The Court decided on the second question that the Parole Board did not have jurisdiction to deal with alleged contempt itself (not being a ‘court of record', as defined), but that it could refer any potential contempt to the High Court for consideration of its own motion pursuant to CPR r81.6. Moreover, the Law Officers (Attorney-General and Solicitor-General) as well as the parties to the Parole Board proceedings (the prisoner or the Secretary of State) could apply to the High Court to institute contempt proceedings pursuant to CPR 81.3.
In addition, the Court found – pursuant to CPR r81.6 – that a contempt of court may have been committed, in that HMPPS witnesses were told (in the Secretary of State’s) July and October Guidance) not to comply with directions to give recommendations in their reports, and not to answer questions seeking to elicit their recommendations at oral hearings. The Court noted that given that such refusal or non-compliance could amount to a contempt, the person giving the instruction not to comply or not to answer could also be guilty of contempt.
The Court directed the Secretary of State to file further evidence addressing by what process, or by whom, the July Guidance was drafted and whether it was approved by the Secretary of State, as well as the process leading to the amendment of the July Guidance and the promulgation of the October Guidance. The Court also required evidence as to the steps that had been undertaken since the first judgment of the Court.
Following receipt of that evidence and submissions by the Secretary of State by 3 May 2023, and any voluntary submissions by the Claimants and the Parole Board by 12 May 2023, the Court will decide whether to initiate contempt proceedings against any person(s) and/or whether to give further directions.
The Court’s formal Order declares that –
- The decision of the Secretary of State to introduce rule 2(22) of the Parole Board (Amendment) Rules (SI 2022/717) was unlawful.
- The Guidance issued by the Secretary of State in July 2022 and October 2022 (as identified in paragraphs 62 and 69 of, and Annexes A and B to the judgment) is unlawful.
- The law of contempt of court applies to proceedings before the Parole Board.
- The Parole Board does not itself have power to punish contempt but may refer a case of alleged contempt to the High Court for proceedings under CPR Part 81.