Secretary of state admits parole board may ask for views or recommendations at oral hearings

Fri, 03 Mar 2023

In proceedings before the Divisional Court on 1 and 2 March 2023, at which the Claimants were represented by No5 barristers, Philip Rule leading Michael Bimmler, the Secretary of State for Justice has admitted that a Parole Board Rules change (and associated guidance) issued in the Summer of last year does not:

(1) prevent addenda reports providing recommendations or views on suitability for the release of the prisoner; nor

(2) prevent questions being answered at an oral hearing by which the probation officer, psychologist or psychiatrist may be asked and may give their opinion.

This admission of the effect (as the Secretary of State for Justice now confirms his interpretation is) of the rules and associated guidance may come as something of a surprise to practitioners and professionals, but now represents the maximum possible interference with the Board’s functioning as an independent court, and of the witnesses to do their legal duty to answer directions and questions of a judicial body such as the Board.

Whether even that narrow prohibition has effect awaits the actual judgment of the Court, but the above concession plainly has immediate importance for the panels of the Board, the parolees, legal representatives, and the witnesses themselves. The message is: witnesses can be asked to provide reports with views or recommendations, and can be asked questions of that nature, and if they have such evidence to give then they should provide it under their duty to do so.

The Secretary of State’s counsel advanced no submission that the original guidance had been lawful (through suggested its replacement, having only the limited effect above on the reading the Secretary of State now advances, could be lawful).

The message should now go out, loud and clear, to probation officers and others: any suggestion you were not permitted to provide recommendations when asked in Parole Board directions for reports or questions in a hearing is and was wholly wrong.

The Divisional Court’s judgment is awaited as to whether there is any lawfulness to the rule 2(22) amendment provision that the SSJ says does prohibit views or recommendations in the very initial dossier report which is provided under the Schedule to the Parole Board Rules, but does not prohibit anything else. The Claimants have identified why, on their case, even that construction of the rule does not render it lawful either.

This important development comes many months after a judgment on 9 August 2022 (R (Bailey) v SSJ [2022] EWHC 2125 (Admin)) by which the Administrative Court granted interim relief to ensure that the Parole Board hearing a review of the continued need or otherwise for detention of an individual would receive the evidence it chose to. More details are available at:

In the related claimants’ case before this same Divisional Court (Mr Morris) the Secretary of State agreed not to apply his guidance to the parole hearing (though he had at that time – before adopting his present construction argument for the rule – prevented the additional reports from including the recommendations ahead of that oral evidence).  

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 appeared the aim was 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.

That now falls away given the argument made by the Secretary of State in this case at the final hearing and in his skeleton argument.

Messrs Rule and Bimmler are instructed by Instalaw Solicitors.


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