Wed, 15 Mar 2023
In a judgment handed down on 15 March 2023, the Divisional Court (Lady Justice Macur and Mr Justice Chamberlain) held that the Secretary of State for Justice had acted unlawfully in preventing probation officers and prison psychologists from making recommendations in parole reviews as to whether a prisoner should be released or progressed to open prison conditions. The case reference is R (Bailey and Morris) v Secretary of State for Justice  EWHC 555 (Admin).
The two Claimants, represented by Philip Rule leading Michael Bimmler, had 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 August 2022, Mr Bailey, one of the two prisoners bringing the claim had obtained urgent interim relief to ensure that prison service witnesses were not prevented from giving recommendations at his imminent oral parole hearing.
In the course of the full hearing of the judicial review on 1 and 2 March 2023, the Secretary of State confirmed through Counsel that he had abandoned his previous view that Rule 2(22) prevented witnesses from expressing views on suitability for release orally, or in addendum reports. Instead, he now considered the rule change to only affect initial reports written at the time of referral to the Parole Board (“the narrow construction”).
In their judgment, Macur LJ and Chamberlain J held that the narrow construction was the correct construction of Rule 2(22). However, the rule change was made for an improper purpose, namely an impermissible interference with a judicial process and an attempt by a party (i.e. the Secretary of State) to judicial proceedings to influence to his own advantage the substance of the evidence given by witnesses employed or engaged by him.
Moreover, on its narrow construction, the reasons advanced for making Rule 2(22) did not provide a rational justification for it: if witnesses were able to give recommendations once directed to do so by the Parole Board in addendum reports or oral evidence, the basis advanced for the amendment – the Secretary of State’s intention to prevent professionals from giving views contradicting any single corporate view – was undermined.
The Court also considered guidance drawn up by the Secretary of State in July 2022 to be unlawful, as it had instructed employees of HM Prison and Probation Service (“HMPPS”), without any legal basis, to refuse to give views on release or progression to open conditions in any written report or to answer any questions deemed to be eliciting such views in an oral hearing. The Secretary of State had improperly sought to give mandatory language guidance to the witnesses in his employ.
New guidance issued in October 2022, ostensibly replacing the July guidance, was equally unlawful because HMPPS staff were never told that the July guidance had misstated the law nor that they should disregard the training given to them on the basis of that guidance. In any event, the October 2022 guidance would still be understood by its readers as an instruction or encouragement not to give a view or recommendation even if they felt able to give one and had been instructed by the Parole Board to do so. The October guidance thus also misstated the law and induced staff to breach their legal obligations.
The Court recorded that in the period from the Amendment Rules entering into force to the date of the withdrawal of the July Guidance, 3,933 cases were decided on the papers and in 912 cases, an oral hearing was directed. In the period from the issue of the October Guidance until the end of February 2023, 5,777 cases were decided on the papers and in a further 1,432, an oral hearing was directed.
The Court observed that “the July Guidance is bound to have had concrete effects in many of the thousands of other cases where reports were prepared, or oral hearings held, on or after 14 July 2022 and before 4 October 2022. If the guidance applied in these cases was unlawful, there is a public interest in a declaration to that effect” .
Together with the publication of its judgment, the Divisional Court invited the parties to make further submissions on (i) whether the guidance issued by the Secretary of State had induced HMPPS staff to commit contempt of court (in the form of ordering or encouraging them not to comply with Parole Board directions for recommendations in written reports or oral evidence) and (ii) on the Parole Board’s powers to enforce compliance with directions and to sanction witnesses who refuse to answer questions in oral hearings. A further hearing on these questions, the form of relief, and any application for permission to appeal will take place before the same constitution of the Court on 4 April 2023.
The Court noted “it is not satisfactory to leave hanging the question whether guidance issued by the Secretary of State has induced HMPPS staff to commit contempt of court” and “there is a strong public interest in resolving whether and, if so, how the Board can in the future enforce compliance with its directions and sanction refusals by the witnesses who appear before it to answer questions in oral hearings” .
The Court’s press release, judgment and annexes thereto have been placed online at