Mon, 15 Jun 2020
In R (on the application of EG) v The Parole Board of England and Wales and Secretary of State for Justice  EWHC 1457 (Admin) the High Court held that the Parole Board Rules 2019 contain a power for the Parole Board to appoint a litigation friend to act on behalf of prisoners who lack capacity to conduct their parole review. This is an important decision since, hitherto, this was widely thought not to be possible (not least by the Official Solicitor herself). The decision heralds practical consequences, which need to be carefully thought through.
The Claimant, EG, was a prisoner subject to an extended sentence. He was released on licence in August 2017, and recalled a month later. His case was referred to the Parole Board so that it could review the continued necessity of his detention. An oral hearing was ordered, but—by the time of his judicial review hearing, two and a half years later—no hearing had taken place.
Given EG’s learning difficulties, and lack of capacity to conduct his parole review, his solicitors made representations to the Parole Board asking for a litigation friend to be appointed. The Parole Board’s initial view was that, under the previous 2016 rules then in force, it lacked the power to appoint a litigation friend.
The Board maintained this view up until the Secretary of State for Justice wrote a letter in October 2018 indicating that, in his view, a purposive reading of the 2016 rules suggested that a litigation friend could in fact be appointed [29-31].
The well-known Worboys case generated a review of the Parole Board Rules which was, in part, supposed to include consideration of those prisoners who lack capacity to conduct their parole proceedings. The new 2019 rules were laid before Parliament on 24 June 2019. Any progress in EG’s parole essentially ceased at this stage, pending the outcome of his judicial review.
EG brought his case on the basis of three grounds of review:
- An unlawful failure to provide a mechanism for prisoners who lack capacity to conduct their parole proceedings so as to enable their active participation in the process.
- The failure to secure EG’s participation in his parole review process.
- The unlawful failure to provide EG with a speedy examination of the continued lawfulness of his detention.
In terms of the first two grounds of review, May J. focussed on the Claimant’s case that the 2019 Rules failed to permit the appointment of a litigation friend for the purposes of his parole proceedings, and thereby failed to provide a mechanism for EG (and other prisoners who lack capacity) to participate in them.
It was submitted on behalf of the Official Solicitor, the Equality and Human Rights Commission and the Law Society that the 2019 Rules were not drafted in such a way so as to provide the Parole Board the power to appoint a litigation friend on EG’s behalf . The proper construction of rule 10(6) of the 2019 Rules was central to this argument. This provides, in salient part, that—
‘If the prisoner has not appointed a representative, the panel chair or duty member may appoint a representative (solicitor or barrister or other representative) for the prisoner-
(a) with the prisoner's agreement, or
(b) where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner's best interests for the prisoner to be represented.’ [Emphasis added.]
The arguments against rule 10(6) providing the power for the Parole Board to appoint a litigation friend can be summarised as follows. First, the 2019 rules use the word ‘representative’ (underlined above), and this is a very different concept to a ‘litigation friend’: the two roles are usually seen as occupying legally and factually distinct roles. Secondly, the fact that there is no mention of the phrase ‘litigation friend’ in the rules as currently drafted should come as no surprise: the Secretary of State intended, and provided, for the appointment of a dual capacity “best interests” solicitor, to act in a manner akin to those who act in Mental Health Tribunals. The Explanatory Memorandum laid before Parliament accompanying the new rules made this clear (reproduced at ). Thirdly, since the possibility of appointing a litigation friend is excluded by the use of the term ‘representative’, there is no scope for a purposive interpretation of the rules so as to permit the appointment of a litigation friend.
Ultimately, because the system designed by the Secretary of State was for the appointment of solicitors acting in a “dual capacity”, with no thought put in to designing the proper means of ensuring that such solicitors can be accredited to act in that way (cf the position in the Court of Protection and the Mental Health Tribunals), or for a litigation friend to be appointed instead, ‘the mechanism was faulty and could not achieve what it had been intended to’ [78-81; 92]. EG, and prisoners like him, so the argument went, were left without a way in which they can effectively participate in their parole proceedings.
But May J disagreed. Whilst she was of the view that the rules were ‘considerably wanting in clarity’, she held that the 2019 rules do permit the appointment of a litigation friend where one is needed to facilitate access of a non-capacitous prisoner to his or her parole review . The words ‘or other representative’ (emphasis in judgment) were key to this, which were held to encompass both a solicitor acting in a prisoner’s best interests, or a litigation friend who can then instruct a lawyer to act [94-96]. In addition, and among other reasons, the obligation under section 3(1) of the Human Rights Act 1998—the requirement to construe legislation in a way that gives effect to Convention rights—meant that the rules must be read so as to provide for the appointment of a litigation friend when necessary to ensure a fair hearing [97-99]. A mechanism was thus present for EG to participate in his parole review, because the power existed for a litigation friend to be appointed. So, grounds 1 and 2 failed.
As for the third ground of review, the two and a half year delay in EG’s parole review was found to breach EG’s Article 5(4) ECHR rights to a speedy review .
There are three striking things about this judgment. The first is the fact that the High Court needed to resort to some fairly strained interpretation in order to find that the 2019 rules provide the power to appoint a litigation friend, rather than just a best interests representative, in parole proceedings. Arguably, the need for such an interpretation—and reliance on the obligation to construe legislation compatibly with Convention rights—should never have been necessary. This is because a review of the Parole Rules had been commissioned in the wake of Worboys, which included specific consideration of how incapacitous prisoners are to participate in their parole proceedings. The result of this was the 2019 rules, but these made no mention whatsoever of the phrase ‘litigation friend’, and were premised on a system where normally solicitors could act in dual capacity (but without the means by which they could be accredited to do so) [81; 143(2)]. The efficacy of the Government’s review of the rules in this area is questionable in light of this.
Secondly, the arguable deficiencies in the review bring about further practical consequences. As was made clear by the Official Solicitor in the course of these proceedings :
‘the OS has had no experience of acting for prisoners in their parole process, and little or no appreciation, therefore, of the type of evidence and issues arising in the evaluation of risk involved in that process. If the Lord Chancellor were to give her a direction to act she would do so, seeing as there would necessarily have to be a process of consultation and discussion about the training and other resources which her office would require in order to represent this new class of vulnerable persons.’
The High Court has now held that the 2019 rules provide theoretically for the power to appoint a litigation friend, but practitioners, and the Official Solicitor (and presumably the Parole Board itself), now need to devise new training schemes in order to make this work in practice. It would have instead been much better for the 2019 rules to provide a comprehensive system for dealing with the issue of ensuring an incapacitous prisoner’s participation in their review, and for that system to have been devised after proper consultation: see, by way of example, the detail provided in rule 1.2 of the Court of Protection Rules 2017 and Practice Direction 1A to the 2017 Rules. Indeed, these practical issues may well lead to further delays in parole proceedings in future, and so this is an area which could see future Article 5(4) challenges being made. The question also arises as to whether or not the ‘relevant information’ a prisoner needs to be able to understand, retain, use or weigh when conducting their parole review is the same as the traditional test for litigation capacity, as set out in Masterman-Lister v Brutton & Co.  EWCA Civ 1889? Parole proceedings are not traditionally thought of as “conducting litigation” in the usual sense (cf ) so there may be a need to differentiate the two forums with slightly different tests for capacity.
Thirdly, the decision in EG is striking for what it does not decide. The Equality and Human Rights Commission had invited the court to consider the position of potentially non-capacitous prisoners generally, raising questions (inter alia) of (1) how such prisoners were to be identified and (2) what the Public Sector Equality Duty requires in such circumstances . May J. offered some observations on the merits of these arguments at -, but specifically made no findings in relation to them. EG had also raised broader arguments for a failure to make reasonable adjustments under the Equality Act 2010 [122-124]. Whilst these important arguments were also left for another day, May J. said this at —
‘I do not at all wish to diminish the importance of all of the detailed points made at a late stage by Ms Gallagher [on behalf of EG] and Ms Weston [on behalf of the EHRC]. As I have pointed out above, the class of prisoners who may lack capacity to participate in their parole hearing are highly likely to be vulnerable to disadvantage of the kind(s) to which counsel refer in their later submissions…’.
It seems to me likely, then, that these arguments will resurface and fall for determination in the not too distant future.
Ben is a public law barrister at No5 Barristers' Chambers with a broad practice which includes both prison law and Court of Protection work.