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This case deals with high octane public law points including the separation of powers and the executive's interference with a judicial function, here that of the Parole Board. 

The judicial review challenge in R (on the application of Bailey and another) v Secretary of State for Justice [2023] EWHC 555 (Admin) related to a change to the rules which govern proceedings before the Parole Board (the Board) and the associated guidance made by the Secretary of State for Justice (SoS). This restricted the evidence available to the Parole Board when they were making an assessment on release, namely in prohibiting staff of HM Prison and Probation Service (HMPPS) from providing a view of whether a prisoner was suitable for release and allowing the SoS to have a singular view on that suitability. The rule and guidance in question was found to be unlawful on the basis that there was an impermissible interference with a judicial process and that the rule had no rational justification. 

What are the practical implications of this case?  

The rule (2(22) of the Parole Board (Amendment) Rules) and associated guidance prohibited HMPPS staff from including in their reports a view or recommendation on the question whether a prisoner is suitable for release or transfer to open conditions also known as ‘the ultimate issue’. The rule also allowed the SoS to, where considered appropriate, present a ’single view’ on the prisoner’s suitability for release. The court found this to be unlawful and therefore this could impact upon hundreds of parole decisions made to date. The High Court has given directions for a further hearing to determine what orders to make in light of its conclusions.  

In addition, this case raises practical as well as political questions around the separation of powers. The Court found that although the Board is a court for the purposes of Article 5(4) of the European Convention on Human Rights it has a relationship with the Ministry of Justice and therefore the SoS must tread a fine line in their interactions with the Board. The SoS is a party to each application for release and must not undermine the Board's independence from the executive. This therefore goes to broader questions around judicial functions which are closely linked to executive bodies and the imperative for the judicial body to remain independent. 

What was the background?  

The rule change had been implemented in July 2022 and guidance was issued alongside it. Both the claimants in this case were prisoners serving indeterminate sentences who were awaiting oral hearings before the Board. Bailey, the first claimant, made an application for interim relief and obtained a declaration from the High Court that the guidance had no effect on his case. The SoS then made a declaration to that effect in relation to the second claimant, Morris. The SoS thereafter issued a new set of guidance, in October 2022, but which was subject to many of the same criticisms as the earlier version. 

There was a lack of clarity for HMPPS staff on the status of the earlier guidance, and no updated training once the October guidance had been published. Seemingly staff understood this to be the same guidance in more concise form and were not aware that the earlier guidance was no longer in force. HMPPS staff believed that they could not offer their views on the ultimate issue even when they had been directed to do so at an oral hearing. This was a breach of their legal obligations. The judgment raises questions about possible contempt of court by staff and has given directions for a further hearing to determine this issue. 

What did the court decide?

This judgment comprises the final hearing where the claimants' challenge was upheld. The challenge succeeded on the following grounds: that the decision to make the rule amounted to an unlawful interference with the independent judicial determination of the legality of detention contrary to the common law and/or Article 5(4) and was irrational, and that the issued guidance was unlawful. 

The High Court said that the SoS was able to make rules governing proceedings before the Board as long as they did not interfere with the Board's judicial responsibility or ability to follow procedure. In this case the High Court interpreted the rule narrowly and said that the rule prohibiting the presentation of evidence from HMPPS staff only applied to reports which the SoS is required to serve when referring a case to the Board. Should the Board still have wanted to call a HMPPS witness who can give evidence on the ultimate issue they should be permitted to do so and this would not be contrary to the rule. 

Even so, the court still found the rule to be unlawful. The SoS's principal purpose was to suppress relevant opinion evidence which differed form his own view and this was held to be improper. As a party to the proceedings this was an attempt to obtain an advantage and thus interfere in those proceedings. In addition, the court found that the SoS had not considered whether it would be justified if the prohibition on evidence on the ultimate issue was limited to the initial report sent with the referral. There was therefore no rational justification for the rule even if narrowly interpreted as above. 

The judgment aptly quotes Sir Tom Bingham in R v Parole Board ex p Watson [1996] QB 906 ‘It is the judgment of the board…not the judgment of the Secretary of State as an arm of the executive, which matters’. 

Case details

  • Court: King's Bench Division, Administrative Court (London)
  • Judge: Lady Justice Macur and Mr Justice Chamberlain
  • Date of judgment: 15 March 2023

This article was first published by Lexis®PSL on 21/04/2023.