Szoma v Secretary of State for the Department of Work and Pensions
[3.MB]KWA WAKUBWA TU ,KUANGALIA VIDEO YAO WAKIBANDUANA CHUMBANI BONYEZA HAPA CHINI 18++
KUTIZAMA PICHA ZAKE NA VIDEO ZAKE ALIZO PIGA AKIWA UCHI NI RAHISI BONYEZA HAPA CHINI
[2005]
UKHL 64
IMMIGRATION: SOCIAL SECURITY
HOUSE OF LORDS
LORD
BINGHAM OF CORNHILL, LORD HUTTON, LORD RODGER OF EARLSFERRY, BARONESS HALE OF
RICHMOND AND LORD BROWN OF EATON-UNDER-HEYWOOD
27,
28 JULY, 27 OCTOBER 2005
Social security – Income support – Entitlement –
Nationals of specified states subject to immigration control not excluded from
entitlement to income support if lawfully present in United Kingdom – National
of specified state temporarily admitted – Statutory provision deeming those
temporarily admitted not to have entered United Kingdom – Whether national of
specified state entitled to income support – Whether lawfully present in United
Kingdom – Immigration Act 1971, s 11, Sch 2 – Social Security (Immigration and
Asylum) Consequential Amendments Regulations 2000, SI 2000/636, Schedule Pt I,
para 4.
The claimant was a national of Poland, a state which
had ratified the Council of Europe Social Charter. He arrived in the United Kingdom in 1998
seeking asylum and, as a person subject to immigration control and liable to
detention under the Immigration Act 1971, was temporarily admitted without
being detained, under the written authority of an immigration officer pursuant
to the powers conferred by Sch 2 to the 1971 Act. Section 11 of the 1971 Act provided that a
person who had not otherwise entered the United Kingdom was to be deemed not to
have done so as long as he was detained, or temporarily admitted or released
while liable to detention, under the powers conferred by Sch 2. The claimant applied for income support under
the benefit regime introduced by the Immigration and Asylum Act 1999. The Social Security (Immigration and Asylum)
Consequential Amendments Regulations 2000, which were made under the 1999 Act,
prescribed those who were not excluded from certain benefits, including income
support, notwithstanding that they were subject to immigration control. By para 4 of Pt I to the Schedule to the 2000
regulations these included persons who were nationals of a state which had
ratified the European Convention on Social and Medical Assistance or had
ratified the Council of Europe Social Charter and who
1
were lawfully present in the United Kingdom. The claimant was refused benefits on the
basis that he was not lawfully present in the United Kingdom. He appealed successfully to the Social
Security Appeal Tribunal. The Social
Security Commissioner allowed the Secretary of State’s appeal and the Court of
Appeal upheld the commissioner’s decision.
The claimant appealed. He
submitted that as he had received an immigration officer’s written authority to
be at large in the United Kingdom and there being no suggestion that he had
failed to comply with such restrictions as had been imposed upon him he fully
satisfied the condition that he be ‘lawfully present’. The Secretary of State contended (i) that
lawful presence for the purpose of para 4 of Pt I of the Schedule to the 2000
regulations was a status gained only by having lawfully entered the United
Kingdom with leave to enter, and that not having been granted leave to enter,
the claimant lacked the required immigration status, and was not to be regarded
as lawfully present; and (ii) that as s 11 of the 1971 Act deemed the claimant
not to have entered the United Kingdom, he must be deemed not to be ‘present’
either.
Held – On its true construction, para 4 of Pt
I of the Schedule to the 2000 regulations required no more by way of positive
legal authorisation for a person’s presence in the United Kingdom than that he
or she was at large in the United Kingdom pursuant to the express written
authority of an immigration officer provided for by statute. The purpose of s 11 of the 1971 Act was to exclude
a person temporarily admitted from the rights given to those granted leave to
enter. The s 11 fiction ought not to be
carried beyond that purpose so as to deem a person in fact lawfully in the
United Kingdom not to be in the country at all.
Accordingly, the appeal would be allowed (see [1]–[4], [23], [25],
[27]–[30], below).
Bugdaycay v Secretary of State for the Home Dept,
Musisi v Secretary of State for the Home Dept [1987] 1 All ER 940 and
Kaya v Haringey London BC [2002] HLR 1 criticised.
Notes
For support for asylum seekers: eligibility for social
security benefits, see 4(2) Halsbury’s Laws (4th edn) (2002 reissue)
para 249.
For the Immigration Act 1971, s 11, Sch 2, see 31 Halsbury’s
Statutes (4th edn) (2003 reissue) 127.
For the Social Security (Immigration and Asylum)
Consequential Amendments Regulations 2000, SI 2000/636, Schedule Pt I, para 4,
see 18 Halsbury’s Statutory Instruments (2005 issue) 340.
Cases referred to in opinions
Bugdaycay v Secretary
of State for the Home Dept, Musisi v Secretary of State for the Home Dept [1987]
1 All ER 940, [1987] AC 514, [1987] 2 WLR 606, HL.
Crafter v Kelly
[1941] SASR 237, S Aus Full Ct.
Kaya v Haringey
London BC [2001] EWCA Civ 677, [2002] HLR 1.
R v Secretary of
State for the Home Dept, ex p Singh [1987] Imm AR 489, DC.
Taikato v R
[1997] 1 LRC 433, Aus HC.
Cases referred to in list of authorities
Athanassiadis v Govt
of Greece [1969] 3 All ER 293, [1971] AC 282n, [1969] 3 WLR 544n, HL.
Brutus v Cozens
[1972] 2 All ER 1297, [1973] AC 854, [1972] 3 WLR 521, HL.
2
D v UK (1997) 2
BHRC 273, ECt HR.
European Roma Rights
Centre v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 1 All
ER 527, [2005] 2 AC 1, [2005] 2 WLR 1.
Fothergill v Monarch
Airlines Ltd [1980] 2 All ER 696, [1981] AC 251, [1980] 3 WLR 209, HL.
Gerhard, Re (No
2) (1901) 27 VLR 484, Vic SC.
Khaboka v Secretary
of State for the Home Dept [1993] Imm AR 484, CA.
Leng May Ma v Barber
(1958) 357 US 185, US SC.
Power v Provincial
Insurance plc [1998] RTR 60, CA.
R (on the
application of Khadir) v Secretary of State for the Home Dept [2005]
UKHL 39, [2005] 4 All ER 114, [2005] 3 WLR 1.
R (on the
application of Tum) v Secretary of State for the Home Dept, R (on
the application of Dari) v Secretary of State for the Home Dept
[2004] EWCA Civ 788, [2004] 2 CMLR 1131.
R (on the
application of Yiadom) v Secretary of State for the Home Dept Case
C-357/98, [2001] All ER (EC) 267, [2000] ECR I-9265, ECJ.
R v Lynsey [1995]
3 All ER 654, CA.
R v Secretary of
State for the Home Dept, ex p Adan, R v Secretary of State for the Home Dept,
ex p Aitseguer [2001] 1 All ER 593, [2001] 2 AC 477, [2001] 2 WLR 143, HL.
R v Secretary of
State for the Home Dept, ex p Connhye [1987] Imm AR 478, DC.
R v Secretary of
State for the Home Dept, ex p Kaur [1987] Imm AR 278, DC.
R v Secretary of
State for the Home Dept, ex p Khan [1985] Imm AR 104, CA.
R v Uxbridge
Magistrates’ Court, ex p Adimi, R v Secretary of State for the Home Dept, ex p
Sorani, R v CPS, ex p Sorani, R v Secretary of State for the Home Dept, ex p Kaziu
[1999] 4 All ER 520, [2001] QB 667, [2000] 3 WLR 434, DC.
R v Wandsworth London
BC, ex p O, R v Leicester City Council, ex p Bhikha [2000] 1 WLR 2539, CA.
Sauvage et Cie v Air
India Corp (1977) 77 ILR 406, Belgian Cour de Cassation.
Secretary of State for
Social Security v Remilien, Chief Adjudication Officer v Wolke [1998] 1 All
ER 129, [1997] 1 WLR 1640, HL.
Welch v UK (1995)
20 EHRR 247, ECt HR.
Appeal
Robert Szoma, acting by his litigation friend, Krystina
Huczko, appealed with permission of the House of Lords Appeal Committee given
on 8 July 2004 from the decision of the Court of Appeal (Pill, Carnwath LJJ and
Maurice Kay J) on 30 July 2003 ([2003] EWCA Civ 1131, (2003) All ER (D) 530
(Jul)) dismissing his appeal from the decision of a Social Security
Commissioner (RJC Angus) dated 10 October 2002 allowing the appeal of the
Secretary of State for Work and Pensions from the decision of a Social Security
Appeal Tribunal (chairman: G Pike) dated 26 January 2001 allowing Mr Szoma’s
appeal from the decision of the Secretary of State issued on 20 July 2000 that
Mr Szoma was not entitled to income support from 11 July 2000 as he was not
lawfully present in the United Kingdom for the purposes of para 4 of Pt I of
the Schedule to the Social Security (Immigration and Asylum) Consequential
Amendments Regulations 2000. The facts
are set out in the opinion of Lord Brown of Eaton-under-Heywood.
Richard Drabble QC
and Duran Seddon (instructed by Pierce Glynn) for the appellant.
Nigel Giffin QC
and Parishil Patel (instructed by Office of the Solicitor, Department
for Work and Pensions) for the Secretary of State.
3
Their Lordships took time for consideration.
27 October 2005.
The following opinions were delivered.
LORD BINGHAM OF CORNHILL.
[1] My Lords, I have had the advantage of
reading in draft the opinion of my noble and learned friend Lord Brown of
Eaton-under-Heywood. I agree with it,
and for the reasons which he gives would allow the appeal and make the order
which he proposes.
LORD HUTTON.
[2] My Lords, I have had the advantage of
reading in draft the speech of my noble and learned friend, Lord Brown of
Eaton-under-Heywood. I agree with it and
for the reasons which he gives I too would allow this appeal.
LORD RODGER OF EARLSFERRY.
[3] My Lords, I have had the advantage of
considering in draft the speech that is to be delivered by my noble and learned
friend, Lord Brown of Eaton-under-Heywood.
I agree with it and, for the reasons which he gives, I too would allow
the appeal.
BARONESS HALE OF RICHMOND.
[4] My Lords, for the reasons given in the
opinion of my noble and learned friend, Lord Brown of Eaton-under-Heywood, with
which I agree, I too would allow this appeal and reinstate the Tribunal’s
decision in favour of the appellant.
LORD BROWN OF EATON-UNDER-HEYWOOD.
[5] My Lords, is a person temporarily admitted
to the United Kingdom under the written authority of an immigration officer
pursuant to para 21 of Sch 2 to the Immigration Act 1971 ‘lawfully present in
the United Kingdom’ within the meaning of para 4 of the Schedule to the Social
Security (Immigration and Asylum) Consequential Amendments Regulations 2000, SI
2000/636? That is the single question
raised on this appeal. Before addressing
it, however, let me briefly indicate the particular context in which it arises
and the consequences of a decision either way.
[6] The appellant is a 29-year-old Polish
national from the Roma community who arrived in this country on 8 November 1998
and immediately claimed asylum. He was
temporarily admitted and in the event remained so under successive
authorisations for a total of six years until 18 November 2004 when, following
a Home Office concession made in October 2003 in favour of those who had
claimed asylum before October 2000, he was granted indefinite leave to
remain. Meantime, he had been refused
asylum and his appeal against that refusal had been dismissed.
[7] This appeal, however, concerns not (or at
least not directly) the appellant’s immigration status but rather his
entitlement to a particular non-contributory benefit, income support. Shortly after his arrival here the appellant
had claimed and received this benefit: in those days it was payable to asylum
seekers provided only that they claimed asylum ‘on their arrival’. But then a new benefit regime was introduced
by the Immigration and Asylum Act 1999 and the 2000 regulations made under it
and it was under these provisions that the appellant’s claim to income support
was refused. It was refused on the basis
that the appellant was not
4
‘lawfully present in the United Kingdom’. The appellant appealed against the refusal
and on 26 January 2001 his appeal was allowed by the Social Security Appeal
Tribunal. On 10 October 2002, however,
Mr Commissioner Angus allowed the Secretary of State’s appeal and on 30 July
2003 the Court of Appeal (Pill and Carnwath LJJ and Maurice Kay J [2003] EWCA
Civ 1131, [2003] All ER (D) 530 (Jul)) dismissed the appellant’s appeal against
the Commissioner’s decision. Your
Lordships having granted leave, the appellant now appeals again to this House.
[8] For reasons into which it is unnecessary
to go, only six weeks worth of income support now turns upon the outcome of
this appeal. The point at issue,
however, will undoubtedly affect many others besides the appellant and, indeed,
a number of other non-contributory benefits too.
[9] Whilst previously the appellant had been
entitled to income support simply by virtue of his presence in the United
Kingdom, the 1999 Act changed that position.
Section 115(1) of the Act, under the heading ‘Exclusion from Benefits’,
provided that no one is entitled to income support and a number of other
specified security benefits ‘while he is a person to whom this section
applies’. Subsection (3) provides that
‘This section applies to a person subject to immigration control unless he
falls within such category or description, or satisfies such conditions, as may
be prescribed’. Subsection (9) provides:
‘“A person subject to immigration control” means a person who is not a national
of an EEA State and who—(a) requires leave to enter or remain in the United
Kingdom but does not have it …’
(Paragraphs (b), (c), and (d) of s 115(9) refer to certain others who
do have leave to enter or remain.)
[10] The 2000 regulations prescribe those who,
pursuant to s 115(3), are not excluded from specified benefits notwithstanding
that they are subject to immigration control.
The various categories are described in Pt 1 of the Schedule to the
regulations and it is para 4 which is critical for present purposes:
‘A person who is a
national of a state which has ratified the European Convention on Social and
Medical Assistance (done in Paris on 11th December 1953) or a state which has
ratified the Council of Europe Social Charter (signed in Turin on 18th October
1961) and who is lawfully present in the United Kingdom.’
[11] It is sufficient for present purposes to
cite one article from each of those treaties.
Article 1 of the European Convention on Social and Medical Assistance
(TS 42 (1955); Cmd 9512) (ECSMA):
‘Each of the Contracting
Parties undertakes to ensure that nationals of the other Contracting Parties
who are lawfully present in any part of its territory to which this Convention
applies, and who are without sufficient resources, shall be entitled equally with
its own nationals and on the same conditions to social and medical assistance
(hereinafter referred to as “assistance”) provided by the legislation in force
from time to time in that part of its territory.’
Article 13 of the Council of Europe Social Charter (TS 38
(1965); Cmnd 2643) (CESC):
‘With a view to ensuring
the effective exercise of the right to social and medical assistance, the
Contracting Parties undertake … 4 to apply the provisions referred to in
paragraphs 1, 2 and 3 of this article on an equal footing with their nationals
to nationals of other Contracting Parties lawfully
5
within their
territories, in accordance with their obligations under [ECSMA].’
[12] It is not in dispute that para 4 was
included in the Schedule to the 2000 regulations specifically to meet the
United Kingdom’s obligations under those treaties and it is common ground too
that Poland had ratified one of them.
The appellant’s entitlement to benefit thus depended solely upon whether
or not he was ‘lawfully present in the United Kingdom’.
[13] The provision under which the appellant
was temporarily admitted to the United Kingdom was, as already mentioned, para
21 of Sch 2 to the 1971 Act. So far as
relevant this provides:
‘(1) A person liable to
detention … under paragraph 16 above may, under the written authority of an
immigration officer, be temporarily admitted to the United Kingdom without
being detained … but this shall not prejudice a later exercise of the power to
detain him.
(2) So long as a person
is at large in the United Kingdom by virtue of this paragraph, he shall be
subject to such restrictions as to residence, as to his employment or
occupation and as to reporting to the police or an immigration officer as may
from time to time be notified to him in writing by an immigration officer.’
[14] The appellant’s straightforward case is
that during the years in question he had received the immigration officer’s
‘written authority’ to be ‘at large in the United Kingdom’ and accordingly,
there being no suggestion that he had failed to comply with such restrictions
as had been imposed upon him, he fully satisfied the condition that he was
‘lawfully present’ here. Undoubtedly he
was present, such presence being pursuant to the written authority of an
immigration officer expressly provided for by the legislation; and he had
committed no breach of the law. Small
wonder that the Immigration and Nationality Directorate’s Asylum Policy
Instructions (API) provide that ‘applicants who have been granted temporary
admission … are lawfully present in the United Kingdom, provided they adhere to
the conditions attached to the grant of temporary admission’ (see API ‘Handling
claims’ para 3.2).
[15] The argument looks on its face
unanswerable but, submits the Secretary of State, there is an answer to it and
this is to be found in s 11 of the 1971 Act and two decisions closely in point:
first that of your Lordships’ House in Bugdaycay v Secretary of State for
the Home Dept [1987] 1 All ER 940, [1987] AC 514 and secondly that of the Court
of Appeal in Kaya v Haringey London BC [2001] EWCA Civ 677, [2002] HLR
1. These are the three key planks in the
Secretary of State’s argument and it is convenient to identify them in
turn. Section 11(1) of the 1971 Act
provides:
‘A person arriving in
the United Kingdom by ship or aircraft shall for purposes of this Act be deemed
not to enter the United Kingdom unless and until he disembarks, and on
disembarkation at a port shall further be deemed not to enter the United
Kingdom so long as he remains in such area (if any) at the port as may be
approved for this purpose by an immigration officer; and a person who has not
otherwise entered the United Kingdom shall be deemed not to do so as long as he
is detained, or temporarily admitted or released while liable to detention,
under the powers conferred by Schedule 2 to this Act …’
6
[16] Most materially therefore, s 11 ‘for
purposes of this Act’ deems a person ‘who has not otherwise entered the United
Kingdom … not to do so as long as he is … temporarily admitted’.
[17] The Secretary of State’s main argument is
that the phrase ‘lawfully present’ in para 4 of the Schedule to the 2000
regulations has to be read as a whole and that lawful presence for this purpose
is a status gained only by having lawfully entered the United Kingdom with
leave to enter (and having subsequently remained within the terms of that
leave). Not having been granted leave to
enter, the appellant accordingly lacks the required immigration status and is
not to be regarded as lawfully present.
The Secretary of State’s fallback argument is that, even if one takes
the words ‘lawfully present’ separately, the appellant was not to be regarded
as ‘present’: s 11(1) deems him not to have entered the United Kingdom and, not
having entered, he must be deemed not to be present either.
[18] One of the group of cases decided by your
Lordships’ House under the title Bugdaycay v Secretary of State for the Home
Dept was Musisi v Secretary of State for the Home Dept where the
question arose whether Mr Musisi, a Ugandan asylum seeker who had arrived in
this country via Kenya, was someone whom the Home Secretary could return to
Kenya as a safe third country for that country rather than the United Kingdom
to determine his entitlement to refugee status.
One ingenious argument raised on his behalf was that his return to Kenya
was precluded by art 32(1) of the Convention Relating to the Status of Refugees
(Geneva, 28 July 1951; TS 39 (1953); Cmnd 9171) (the Refugee Convention): ‘The
Contracting States shall not expel a refugee lawfully in their territory save
on grounds of national security or public order’. Mr Musisi was, his counsel argued, ‘a refugee
lawfully in’ the United Kingdom.
[19] The argument was given short shrift. If well-founded, Lord Bridge of Harwich
pointed out ([1987] 1 All ER 940 at 948, [1987] AC 514 at 526), it would follow
that any asylum seeker arriving in the United Kingdom would have ‘an
indefeasible right to remain here’.
That, he observed, would be ‘very surprising’ and he concluded rather
that ‘the deeming provision enacted by s 11(1) makes [the argument] quite
untenable’.
[20] The argument rejected in Musisi’s
case had also been advanced in R v Secretary of State for the Home Dept, ex
p Singh [1987] Imm AR 489. Because,
however, Ex p Singh came before the Divisional Court three months after
the decision in Musisi’s case the argument had become impossible. Noting counsel’s concession on the point
Woolf LJ summarised (at 494–496) his understanding of Musisi’s case:
‘Each of the present
applicants had only been granted temporary admission and they required, but had
not received, leave to enter under section 3 of the Immigration Act 1971 and by
section 11 (1) of that Act a person is deemed not to have entered the United
Kingdom so long as he is detained or temporarily admitted or released
while liable to detention under the powers conferred by schedule 2 of the
Act. For the purposes of the Convention,
a person temporarily admitted is therefore not to be regarded as lawfully in
the territory. He is instead in an
intermediate position which also differs from those in the country illegally …’
[21] Kaya v Haringey London BC [2002]
HLR 1, the second of the two authorities principally relied on by the
respondent, raised and decided the identical question now before your
Lordships. It arose there in the context
of a Turkish asylum seeker’s claim for housing under homelessness legislation
based on his pregnant
7
wife’s priority need and there, as here, the claim
turned on whether the claimant, temporarily admitted to the United Kingdom
pending the resolution of his asylum claim, was ‘lawfully present’ here within
the meaning of the 2000 regulations: Turkey had ratified ECSMA—besides Croatia
the only non-EU or EEA country to do so.
Rejecting the claim, Buxton LJ (with whose judgment Peter Gibson LJ and
Jonathan Parker LJ agreed) saw ‘absolutely no reason not to apply the same
reasoning [as Lord Bridge in Musisi’s case]’, and again founded his
conclusions squarely upon s 11. The
‘function and role’ of this section he described as follows:
‘[33] … In the whole
context of the Immigration Act it is admittedly a device, but it is a device to
prevent persons who have not been granted leave to enter, but whose case has to
be further considered, from committing what would otherwise be a criminal
offence under national law. So section
11 does go to the lawfulness of the person’s presence and is directly relevant
to the question of whether, under national rules, the seeker for asylum is
‘unlawfully present’ in this country. As
I have already indicated, in my judgment the purpose and intention of the ECSMA
rule is that that should be a matter for the contracting state.’
[22] The decision in Kaya’s case, of
course, stood foursquare in the appellant’s path in the present case. Mr Drabble QC, on his behalf, sought to
contend that it had been reached per incuriam but the Court of Appeal, rightly
in my view, rejected that contention and regarded themselves as bound by
it. Pill LJ and Maurice Kay J, I should
add, thought the decision not merely binding but also correct. That, however, was not Carnwath LJ’s view: he
agreed to the appeal being dismissed ‘simply because’ the court was bound by
Kaya’s case. In addition he
described (at [36]) the context in which the issue arose in Musisi’s
case as ‘quite different’, and the House of Lords reasoning there as ‘very
brief, no doubt partly influenced by the very unattractive consequences of the
argument’.
[23] Mr Drabble criticises the reasoning, but
not the actual decision, in Musisi’s case and its adoption in Kaya’s
case, and he criticises too Buxton LJ’s analysis in Kaya’s case of the
role of s 11 in the scheme of the 1971 Act.
[24] For my part I accept Mr Drabble’s
arguments. Musisi v Secretary of State for the Home Dept was rightly
decided but for the wrong reasons. The
term ‘refugee’ in art 32(1) of the Refugee Convention can only mean someone
already determined to have satisfied the art 1 definition of that term (as, for
example in art 2 although in contrast to its meaning in art 33). Were it otherwise, there would be no question
of removing asylum seekers to safe third countries and a number of
international treaties, such as the two Dublin Conventions (Convention
determining the State responsible for examining Applications for Asylum lodged
in one of the Member States of the European Communities (Dublin; TS 72 (1997);
Cm 3806) and Regulation 343/2003 (OJ 2003 L 50 p 1) (for determining the EU
state responsible for examining applications lodged in one member state) would
be unworkable. In short, Mr Musisi
failed to qualify as ‘a refugee lawfully in’ the United Kingdom not because he
was not lawfully here but rather because, within the meaning of art 32(1), he
was not a refugee.
[25] The decision in Kaya v Haringey London
BC [2002] HLR 1 rests in part upon its application to the 2000 regulations
of the reasoning in Musisi’s case (erroneous reasoning as already
indicated) and in part upon Buxton LJ’s view (at [33]) that s 11 of the 1971
Act ‘does go to the lawfulness of the person’s presence’ in the United Kingdom
on the basis that but for s 11 the person temporarily admitted
8
would have committed the criminal offence of entering
the United Kingdom without leave (under s 24).
In my opinion, however, s 11’s purpose is not to safeguard the person
admitted from prosecution for unlawful entry but rather to exclude him from the
rights (in particular the right to seek an extension of leave) given to those
granted leave to enter. Even assuming
that s 11’s deemed non-entry ‘for purposes of this Act’ would otherwise be
capable of affecting the construction of the 1999 Act and the 2000 regulations
(as legislation in pari materia), it would in my judgment be quite wrong to
carry the fiction beyond its originally intended purpose so as to deem a person
in fact lawfully here not to be here at all.
‘The intention of a deeming provision, in laying down a hypothesis, is
that the hypothesis shall be carried as far as necessary to achieve the
legislative purpose, but no further’—the effect of the authorities as
summarised by Bennion Statutory Interpretation (4th edn, 2002), p 815
(section 304).
[26] To my mind the only way the respondent
could succeed in these proceedings would be to make good his core argument,
that the word ‘lawfully’ in this context means more than merely not unlawfully;
rather it should be understood to connote the requirement for some positive
legal underpinning. Mr Giffin QC
illustrates the argument by reference to Taikato v R [1997] 1 LRC 433, a
decision of the High Court of Australia on very different facts. The question there was whether an individual
carrying a formaldehyde spray possessed it ‘for a lawful purpose’, and it was
held that she did not do so even though her purpose (self-defence) was one not
prohibited by law. Brennan CJ (at 440)
said:
‘“Lawful purpose” in
[the relevant legislation] should be read as a purpose that is authorised, as
opposed to not forbidden, by law because that meaning best gives effect to the
object of the section. The meaning of “lawful” depends on its context, as
Napier J pointed out in Crafter v Kelly [1941] SASR 237 at 243. As a result, a “lawful purpose” may mean a
purpose not forbidden by law or not unlawful under the statute that enacts the
term … or it can mean a purpose that is supported by a positive rule of law …
As a general rule,
interpreting “lawful purpose” in a legislative provision to mean a purpose that
is not forbidden, rather than positively authorised, by law is the
interpretation that best gives effect to the legislative purpose of the
enactment. This is because statutes are
interpreted in accordance with the presumption that Parliament does not take
away existing rights unless it does so expressly or by necessary implication …
Nevertheless, the purpose, context or subject matter of a legislative provision
may indicate that Parliament has used the term “lawful purpose” to mean a
purpose that is positively authorised by law.’
[27] So too here, submits the respondent: para
4 of the Schedule to the 2000 regulations confers an entitlement to certain
state benefits (or, more accurately, displaces a prima facie disqualification
from receiving such benefits) upon persons who are nationals of a relevant
state and who are ‘lawfully present’ in the United Kingdom. Unless, submits Mr Giffin, the applicant’s
presence in the United Kingdom has been positively authorised by a specific
grant of leave to enter, rather merely than by temporary admission, his
disqualification from the benefits should not be found displaced.
[28] I would reject this argument. There is to my mind no possible reason why
para 4 should be construed as requiring more by way of positive legal
authorisation for someone’s presence in the United Kingdom than that they are
9
at large here pursuant to the express written
authority of an immigration officer provided for by statute. (Much of the argument before the House
assumed that if a temporarily admitted applicant were ‘lawfully present’ in the
United Kingdom for para 4 purposes, so too would be any asylum seeker even were
he in fact detained under Sch 2 to the 1971 Act: he too would be legally
irremovable unless and until his asylum claim were rejected. It now occurs to me that that assumption may
be ill-founded: certainly Mr Giffin’s Taikato-based argument would have
greater force in that type of case. For
present purposes, however, it is unnecessary to decide the point.)
[29] Although these conclusions are sufficient
to dispose of the appeal, I would add just this about the various benefits
provided for by the 1999 Act to which, pursuant to para 4 of the Schedule to
the 2000 regulations as I would construe it, temporarily admitted asylum
seekers are entitled. For my part I
accept that these benefits go further than is strictly required to meet the
United Kingdom’s international obligations under ECSMA and CESC. For one thing those treaties make a
distinction (not recognised in our law) between lawful presence and lawful
residence, certain benefits having to be made available only to those lawfully
resident in the state. For another thing
the respondent may well be right in saying that the basic care and emergency
needs of asylum seekers are catered for by other benefits than those described
in s 115 of the 1999 Act so that the United Kingdom’s treaty of obligations
would be met even if asylum seekers are excluded from the latter (although
there are strong arguments to the contrary too). In my judgment, however, none of this is to
the point: the court’s task is to construe the legislation as it stands, not as
it might more stringently have been enacted.
[30] I would allow this appeal and reinstate
the original decision of the Social Security Appeal Tribunal in the appellant’s
favour.
Appeal allowed.
Dilys
Tausz Barrister.
10
[2006] 1 All ER 11
R (on the application of Girling) v Parole Board and
another
[2005]
EWHC 5469 (Admin)
CRIMINAL: Criminal Procedure: HUMAN RIGHTS; Liberty:
PRISONS
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
WALKER
J
1, 4
FEBRUARY, 8 APRIL 2005
Prison – Release on licence – Refusal to release
on licence – Post-tariff mandatory life prisoner – Right to liberty and
security – Directions given by Secretary of State to Parole Board identifying
matters to be taken into account by Parole Board – Whether legislation
empowering Secretary of State to give directions applicable to Parole Board’s
judicial functions – Whether Parole Board in error in relying on directions –
Whether error vitiating Parole Board’s decision – Whether breach of right to
liberty – Criminal Justice Act 1991, s 32(6) – Crime (Sentences) Act
1997, s 28(6)(b) – Human Rights Act 1998, Sch 1, Pt 1, art 5(4).
The claimant was a post-tariff mandatory life
prisoner. While serving his sentence,
the claimant was diagnosed with acute leukaemia. Following a review, the first defendant, the
Parole Board, refused to direct the claimant’s release on the grounds that
there were outstanding risk factors including alcohol abuse, violence,
relationships with women, anger and sexual attitudes and behaviour that the
claimant had failed to address. The
board also stated that it was concerned as to the lack of any suitable release
plan, which was felt to be indicative of the insufficient realism and insight
on the part of the claimant into his offending behaviour. The claimant, in a letter before action,
criticised the linking by the board of risk factors with the lack of a release
plan. The board replied that the second
defendant, the Secretary of State for the Home Department, had issued
directions in August 2004, pursuant to s 32(6)a of the Criminal Justice Act 1991, that, by
para 7(b)b,
required the board to consider the content of the resettlement plan and the
suitability of the release address before directing release on life
licence. Section 32(6) provided that the
Secretary of State might ‘give to the Board directions as to the matters to be
taken into account by it in discharging any functions’ under the Act. The board stated that in the vast majority of
cases those arrangements would be an integral part of the decision to release
or not and concluded that there was nothing irrational in the board’s
decision. The claimant applied for
judicial review. It was agreed that the
board’s functions in relation to the claimant could be treated as if they had
arisen under s 28c of the Crime
(Sentences) Act 1997. By s 28(6)(b) the
board was not to direct a prisoner’s release unless it was satisfied that it
was no longer necessary for the protection of the public that the prisoner
should be confined. The issue arose,
inter alia, as to whether the existence of directions issued by the Secretary
of State to the board in the discharge of its judicial functions under s 28 of
the 1997 Act infringed the independence of the board so as to vitiate its
decision in that it was
________________________________________
a Section 32, so far as material, is set out at
[29], below
b Paragraph 7, so far as material, is set out at
[25], below
c Section 28, so far as material, is set out at
[13], below
________________________________________
11
incompatible with the right to liberty contained in
art 5(4)d of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998).
________________________________________
d Article 5, so far as material, is set out at
[4], below
________________________________________
Held – Section 32(6) of the 1991 Act should be
read as inapplicable to the Parole Board’s judicial functions and in particular
to its functions under s 28 of the 1997 Act.
The subsection contained no express authority to give directions as to
matters to be taken into account where the board was exercising its functions
of a judicial nature. It did refer in
general terms to ‘any functions’, however, those functions included cases where
the board’s role was advisory rather than judicial. In those circumstances, the subsection could
be given ample effect without encroaching upon the common law principles underlying
the rule of law by reading it as confined to those cases where the board was
not exercising functions of a judicial nature.
When exercising its functions under s 28, the applicable test was that
the board had to be satisfied under s 28(6)(b) that it was no longer necessary
for the protection of the public that the prisoner should be confined. The matters that were to be taken into
account for that purpose would ordinarily depend on the true construction of
that subsection, which was something that had to be determined by the Board in
its judicial role. In the instant case,
while it had been legally erroneous for the board to have thought that the
Secretary of State’s directions applied to functions of a judicial nature,
there had been no detriment caused to the claimant. It followed that its decision was not
vitiated. In any event, the contents of
the directions were innocuous; they had plainly been drafted with great care,
and accurately reflected appropriate legal principles. Moreover, having regard to the content of the
directions, there was no breach of art 5(4) of the convention. It was true that there had been an
inadvertent trespass on the board’s independence, but that had not led to any
harmful consequence and was not so substantial as to deprive the board when
acting under s 28 of its true character as a judicial body. Accordingly, the application would be
dismissed and a declaration granted that s 32(6) should be construed so as not
to apply to the judicial functions of the board (see [76], [78]–[81] and [83],
below).
Notes
For the constitution and functions of the Parole Board and
the duty to release life sentence prisoners, see 36(2) Halsbury’s Laws
(4th edn reissue) paras 618, 621 and for the right to liberty and security of
the person, see 8(2) Halsbury’s Laws (4th edn reissue) paras 127, 128.
For the Criminal Justice Act 1991, s 32(6), see 34
Halsbury’s Statutes (4th edn) (2001 reissue) 805.
For the Crime (Sentences) Act 1997, s 28, see, see 34
Halsbury’s Statutes (4th edn) (2001 reissue) 914.
For the Human Rights Act 1998, Sch 1 Pt I, art 5, see
7 Halsbury’s Statutes (4th edn) (2004 reissue) 705.
Cases referred to in judgment
Associated Provincial
Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223,
CA.
Benjamin v UK (2003)
13 BHRC 287, ECt HR.
12
Blackstock v UK [2005]
All ER (D) 218 (Jun), ECt HR.
Oldham v UK (2001)
31 EHRR 813, [2000] ECHR 36273/97, ECt HR.
R v Parole Board, ex
p Robinson (29 July 1999, unreported), DC.
R v Parole Board, ex
p Watson [1996] 2 All ER 641, [1996] 1 WLR 906, CA.
R v Secretary of
State for the Home Dept, ex p Benson [1989] COD 329, DC.
R v Secretary of
State for the Home Dept, ex p Hickey (No 1), R v Secretary of
State for the Home Dept, ex p H, F, B and W [1995] 1 All ER 479, [1995] QB
43, [1994] 3 WLR 1110, CA.
R (on the
application of Al-Hasan) v Secretary of State for the Home Dept, R (on
the application of Carroll) v Secretary of State for the Home Dept [2005]
UKHL 13, [2005] 1 All ER 927.
R (on the
application of Anderson) v Secretary of State for the Home Dept [2002]
UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC 837, [2002] 3 WLR 1800.
R (on the
application of D) v Secretary of State for the Home Dept [2002] EWHC
2805 (Admin), [2003] 1 WLR 1315.
R (on the
application of Day) v Secretary of State for the Home Dept [2004]
EWHC 1742 (Admin), [2004] All ER (D) 274 (Jun).
R (on the
application of H) v Secretary of State for Health [2004] EWCA Civ
1609, [2005] 3 All ER 468, [2005] 1 WLR 1209.
R (on the
application of H) v Secretary of State for the Home Dept [2002] EWCA
Civ 646, [2003] QB 320, [2002] 3 WLR 967; affd [2003] UKHL 59, [2004] 1
All ER 412, [2004] 2 AC 253, [2003] 3 WLR 1278.
R (on the
application of K) v Camden and Islington Health Authority [2001]
EWCA Civ 240, (2001) 61 BMLR 173, [2002] QB 198, [2001] 2 WLR 553.
R (on the
application of Murray) v Parole Board [2003] EWCA Civ 1561, [2003]
All ER (D) 84 (Nov).
R (on the
application of Spence) v Secretary of State for the Home Dept [2003]
EWCA Civ 732, [2003] All ER (D) 354 (May).
Singh v UK, Hussain v
UK Joined cases App No 23389/94 and App No 21928/93 (1996) 22 EHRR 1, ECt
HR.
Spence v UK App
No 1190/04 (30 November 2004, unreported), ECt HR.
Stafford v UK (2002)
13 BHRC 260, ECt HR.
Thynne v UK (1991)
13 EHRR 666, [1990] ECHR 11787/85, ECt HR.
Application for judicial review
The claimant, Norman Girling, applied with permission
granted on paper on 7 January 2005, limited to a question of whether the first
defendant, the Parole Board, who on 8 October 2004 refused to order the
claimant’s release on licence, should be ordered to reconsider its decision,
and with permission of the court granted on 1 February 2005, for judicial
review of that decision on the following issues: (i) whether the decision of
the Board was vitiated by failure to take account of the claimant’s medical
condition as it impacted on risk; (ii) whether the linking of risk with a
release plan was lawful when applying the test of risk to life and limb; and
(iii) whether the existence of directions by the second defendant, the
Secretary of State for the Home Department, to the Board in the discharge of
its functions under s 28 of the Crime (Sentences) Act 1997 and the inability of
the claimant to have access to the Parole Board without first passing through
the Secretary of State raised any questions as to the true independence of the
Board. Against the Secretary of State
the claimant sought: (i) a declaration that directions given by the Secretary
of State to the Board contravened art 5(4)
13
of the European Convention for the Protection of Human Rights
and Fundamental Freedom 195017
; and (ii) declarations of incompatibility under s 4 of
the Human Rights Act 1998 in that art 5(4) was contravened by s 28(6)(a) and
(7) of the 1997 Act and s 32(6) of the Criminal Justice Act 1991. The facts are set out in the judgment of
Walker J.
Florence Krause
(instructed by Nelsons, Nottingham) for the claimant.
Steven Kovats
(instructed by the Treasury Solicitor) for the defendants.
Cur adv
vult
8 April 2005.
The following judgment was delivered.
WALKER J.
[1] Since 1965 it has been mandatory for all
persons convicted of murder to be sentenced to imprisonment for life. However it has long been the case that the
Home Secretary, as a member of the executive, has released such prisoners
before expiry of their sentence where this has been thought appropriate. In 1983 procedures (subsequently refined)
were introduced to separate consideration of retribution and deterrence from
consideration of risk to the public. On
the former advice was sought from the judiciary and on the latter advice was
sought from the Parole Board.
[2] On 25 September 1984 the claimant was
sentenced to life imprisonment for the murder of his female partner in a
drunken rage. Thereafter a minimum
period before he could be considered for parole was set at 12 years. His status in the penal system was that of a
‘mandatory lifer’. The minimum period
was commonly known as the ‘tariff,’ and from late 1996 onwards he was a ‘post-tariff
mandatory lifer’.
[3] The Parole Board is now charged with
determining (among other things) whether such a prisoner should be given parole
by being released on licence. In the
case of the claimant a decision of the Parole Board dated 8 October 2004
refused his release. In this application
for judicial review the claimant says that when deciding not to order his
release the Parole Board failed to take proper account of medical evidence, and
improperly had regard to the lack of a release plan.
[4] The claimant also relies on art 5 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 (as set out in Sch 1 to the Human Rights Act 1998). Article 5 states, so far as material:
‘(1) Everyone has the
right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and
in accordance with a procedure prescribed by law: (a) the lawful detention of a
person after conviction by a competent court …
(4) Everyone who is
deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.’
[5] It has recently been established that in
circumstances applicable to the claimant art 5(4) of the convention applies: as
the prisoner is post-tariff, detention
14
is no longer necessary in order to punish. There may from time to time be changes in the
facts relevant to those matters which are thought to warrant continued
detention. Accordingly there must be an
entitlement to take proceedings by which the lawfulness of detention will be
decided speedily by a court and release ordered if the detention is not
lawful. The claimant says that the
Parole Board fails to meet the criteria of a ‘court’ under art 5(4), being insufficiently
independent of the Home Secretary.
THE RELIEF SOUGHT BY THE CLAIMANT
[6] The Parole Board is the first
defendant. Against this defendant the
claimant seeks an order requiring that it reconsider its decision of 8 October
2004 forthwith.
[7] The second defendant is the Home
Secretary. Against this defendant four
declarations are sought. First, the
claimant seeks a declaration that directions given by the Home Secretary to the
Parole Board contravene art 5(4). These
directions identify matters which are to be taken into account by the Parole
Board in discharging its functions concerning post-tariff lifers. They include an instruction that before
directing release on life licence, the Parole Board shall consider the content
of the resettlement plan and the suitability of the release address. The second, third and fourth declarations
sought are declarations of incompatibility under s 4 of the 1998 Act. The second and (by amendment) the fourth
assert that art 5(4) is contravened by s 28(6)(a) and (7) of the Crime
(Sentences) Act 1997 (the 1997 Act) respectively. Under these provisions the Parole Board can
only direct the release of relevant prisoners on licence if the Secretary of
State has referred the prisoner’s case to the Board, and such prisoners have
only limited entitlements to require a reference. The third declaration sought (also by
amendment) returns to the directions given by the Home Secretary to the Parole
Board. If, contrary to the claimant’s
primary submission, s 32(6) of the Criminal Justice Act 1991 (the 1991 Act)
permits the Home Secretary to give directions applicable to the claimant’s
case, then the claimant seeks a declaration that this contravenes art 5(4).
THE FACTS
[8] In June 2000, while serving his sentence,
the claimant was diagnosed with acute leukaemia. On 5 October 2004 the claimant had a Parole
Board review. The Parole Board had power
to direct that he be released, and to recommend licence conditions to apply on
release, if satisfied that it was no longer necessary for the protection of the
public that he be confined. A letter
from the Parole Board dated 8 October 2004 recorded that it was not so
satisfied and therefore had not directed his release. Reasons were given which included the
following:
‘3. You were convicted
by a jury in 1984 of murder of your common-law wife and sentenced to life
imprisonment, with the tariff set at 12 years.
You have spent 20 years in prison and, therefore, are 8 years beyond
tariff.
4. This conviction was
preceded by a lengthy history of offending during which on several occasions
you failed to comply with the terms of suspended sentences. This offending commenced at an early age and
included two of a sexual nature and a further one of assault.
5. Previous panels held
by the Parole Board have been concerned that your index offence was linked to
alcohol abuse, pathological sexual jealousy, use of violence, problems with
women and that you had not dealt with these risk
15
areas. Since the last panel you have refused
assessment for the R & R programme, the Sex Offender Treatment Programme
and have not had any involvement with the CARAT team.
6. The panel notes that
your health has deteriorated over the past few years and read two recent
reports commissioned by your legal representative giving some details of your
illness. The first report was compiled
by Dr D Somekh, consultant forensic psychiatrist, and the second by Dr A
Abdul-Calder, consultant haematologist.
Although Dr Somekh asked the panel to consider release on compassionate
grounds, your solicitor acknowledged that this was beyond the Board’s
remit. The panel considered that
notwithstanding your current state of health, you still present a substantial
risk to the community if you are released or transferred to open conditions.
7. Your outstanding risk
factors have been identified as alcohol abuse, violence, relationships with
women, anger, previous life style, and sexual attitudes and behaviour. In July 2001 a panel found little in reports
to convince it that your risk level had been reduced to recommend release or a
transfer to open conditions. From the
latest reports this panel found no change to these risk levels and, therefore,
the only new factor that remains to be considered is whether your poor state of
health has reduced these risks to a level at which it would be manageable in
the community or open conditions.
8. The panel was
concerned as to the lack of any suitable release plan or realistic relapse
prevention strategies, both of which are essential before release is
possible. Additionally, the panel
considered the lack of such a release plan to be indicative of the insufficient
realism and insight into your offending behaviour.
9. The panel is
concerned about the lack of progress since the last review, even accounting for
the deterioration in your health. The
panel would like to see some constructive work undertaken to address the
outstanding risk areas and to develop a realistic and structured release plan.’
[9] Paragraph 6 quoted above referred to the
report of Dr Somekh. This is a lengthy
document. For present purposes all I
need say about it and the report of Dr Abdul-Calder is that neither of these
doctors stated that the claimant was so ill that he was incapable of causing
physical harm to others.
[10] The Parole Board’s decision led on 10
December 2004 to a letter before action sent by the claimant’s solicitors
asserting a failure to give proper consideration to the claimant’s seriously
deteriorating health, and seeking that the Parole Board should direct the
claimant’s release as a matter of extreme urgency taking into account his bad
medical prognosis.
[11] On 16 December 2004 the Parole Board
replied to the claimant’s solicitors refuting criticisms made in the letter of
10 December. One such criticism concerned
risk of harm in the event that the claimant were released, and was that the
Parole Board had linked such risk to the lack of a release plan. In reply the letter of 16 December observed
that ‘[i]n the vast majority of cases the arrangements for supervising a life
sentence prisoner, including the nature of the release address, are an integral
part of the decision to release or not’.
The letter of 16 December 2004 added that ‘the Home Secretary’s
Directions to the Board,
16
issued in August 2004, require the Board to take such
factors into account when making its decision’.
After dealing with other criticisms, the letter concluded:
‘I find nothing
irrational in the Board’s decision.
Furthermore, as your firm well knows, your request for the Board to now
release your client is one that the Board has no power to deliver. Without a reference to the Board by the
Secretary of State under section 28 of the Crime (Sentences) Act 1997, the
Board is powerless to direct Mr Girling’s release.’
THE LEGAL PROCEEDINGS AND THE ISSUES WHICH ARISE
[12] On 31 December 2004 the claimant began
these proceedings. Following
consideration of the matter on paper, on 7 January 2005 the court directed an
expedited hearing, and granted permission ‘limited to the question whether the
Parole Board should be directed to reconsider its decision of 8 October
2004’. At a hearing before me on 1
February 2005 I concluded that arguable points arose in addition to those for
which permission had been given on 7 January, and accordingly I granted
permission on all aspects of the claim.
The hearing resumed on 4 February.
The issues identified on behalf of the claimant can be summarised as
follows: issue 1: Whether the decision of the Parole Board is vitiated by
failure to take account of the claimant’s medical condition as it impacts on
risk; issue 2(i): Whether the linking of risk with a release plan is lawful
when applying the test of risk to life and limb; issue 2(ii): Whether the
existence of directions by the Home Secretary to the Parole Board in the
discharge of its functions under s 28 of the 1997 Act and the inability of the
claimant to have access to the Parole Board without first passing through the
Home Secretary raise any questions as to the true independence of the Parole
Board.
FUNCTIONS OF THE PAROLE BOARD UNDER SECTION 28 OF THE
1997 ACT
[13] Both sides agreed that the Parole Board’s
functions in relation to the claimant could be treated as if they had arisen
under s 28 of Ch II of Pt II of the 1997 Act, as amended by the Criminal
Justice Act 2003. As so amended Pt II of
the 1997 Act includes the following:
‘CHAPTER II
Life Sentences
Release on licence
28. Duty to
release certain life prisoners.—(1A) This section applies to a life
prisoner in respect of whom a minimum term order has been made; and any
reference in this section to the relevant part of such a prisoner’s sentence is
a reference to the part of the sentence specified in the order.
(1B) But if a life
prisoner is serving two or more life sentences—(a) this section does not apply
to him unless a minimum term order has been made in respect of each of those
sentences; and (b) the provisions of subsections (5) to (8) below do not apply
in relation to him until he has served the relevant part of each of them …
(5) As soon as—(a) a
life prisoner to whom this section applies has served the relevant part of his
sentence; and (b) the Parole Board has directed his
17
release under this
section, it shall be the duty of the Secretary of State to release him on
licence.
(6) The Parole Board
shall not give a direction under subsection (5) above with respect to a life
prisoner to whom this section applies unless—(a) the Secretary of State has
referred the prisoner’s case to the Board; and (b) the Board is satisfied that
it is no longer necessary for the protection of the public that the prisoner
should be confined.
(7) A life prisoner to
whom this section applies may require the Secretary of State to refer his case
to the Parole Board at any time—(a) after he has served the relevant part of
his sentence; and (b) where there has been a previous reference of his case to
the Board, after the end of the period of two years beginning with the disposal
of that reference; and (c) where he is also serving a sentence of imprisonment or
detention for a term, after he has served one-half of that sentence; and in
this subsection “previous reference” means a reference under subsection (6)
above or section 32(4) below.
(8) In determining for
the purpose of subsection (5) or (7) above whether a life prisoner to whom this
section applies has served the relevant part of his sentence, no account shall
be taken of any time during which he was unlawfully at large within the meaning
of section 49 of the Prison Act 1952.
(8A) In this section
“minimum term order” means an order under—(a) subsection (2) of section 82A of
the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum
term in respect of life sentence that is not fixed by law), or (b) subsection
(2) of section 269 of the Criminal Justice Act 2003 (determination of minimum
term in respect of mandatory life sentence).’
[14] The tariff set for the claimant was not a
‘minimum term order’ within sub-ss (1A) and (8A) of s 28. However it was common ground that under the
transitional provisions of the 2003 Act he could be treated as if his tariff of
12 years were such an order.
ISSUE 1
[15] Miss Krause for the claimant submitted
that the Parole Board failed to attach any weight to the claimant’s serious
medical condition when assessing risk, alternatively it failed to attach
sufficient weight to the claimant’s debilitating medical condition when
assessing his risk to life and limb, therefore failing to perform the requisite
balancing exercise. In written
submissions she said that had the Parole Board taken the claimant’s medical
condition into account, it could not have come to the conclusion that he still
presented a risk to life and limb. It
attached great weight to the risk evidenced by the index offence (static risk)
and the claimant’s behaviour early in his prison sentence, but had failed to
see how such pre-existing risk had become an academic issue in light of the
claimant’s physical degenerative condition: ‘the claimant is physically
incapable of causing any physical harm.’
[16] On the latter point, however, Miss Krause
accepted orally that there was no medical evidence before the Parole Board
which could help them either way on whether the claimant posed a risk to the
public: neither Dr Somekh nor the psychiatrist member of the Board could give a
medical opinion. In these circumstances
it was submitted that the Parole Board should have adjourned in order to obtain
a proper medical opinion. Miss Krause
was unable to say whether
18
the claimant’s representative suggested adjourning in
order to obtain such an opinion.
[17] I find against the claimant on issue
1. The Parole Board’s letter of 8
October 2004 identified the outstanding risk factors as including ‘alcohol
abuse, violence, relationships with women, anger … and sexual attitudes and
behaviour’. If it was to be suggested
that the claimant’s medical condition eliminated any one or more of these risk
factors it was for the claimant to put forward evidence to that effect. The evidence before the Board did not
establish that these risk factors had been removed or reduced to the point
where the claimant posed no risk to life or limb. The claimant and his advisers had known long
before October 2004 of the Board’s concern about these risk factors. The Board was entitled to expect that if
there were any evidence showing that these risk factors no longer applied it
would have been obtained in good time for the hearing. Nothing in the circumstances gave rise to any
duty on the part of the Board to adjourn in order to see if any such evidence
could be found.
SUBMISSIONS ON ISSUES 2(i) AND 2(ii)
[18] Opening the argument on issues 2(i) and
2(ii) Miss Krause said that these issues concerned the separation of powers,
and it was indicative of the defendants’ position that they were both
represented by the same solicitors and counsel at the present hearing.
[19] The first aspect of issue 2(i) was the
suggested linking by the Parole Board of risk and the lack of a release
plan. The case of R v Secretary of
State for the Home Dept, ex p Benson [1989] COD 329 identified as the sole
test for release the question whether there was a risk to life and limb. That this was indeed the test was accepted by
Mr Kovats for the defendants. Miss
Krause said that this meant that the Parole Board must look at the level of
risk posed irrespective of whether the lifer had a release plan. If the Parole Board is satisfied that the
lifer’s risk is sufficiently low to be released, it must make the release
direction. If there is no satisfactory
release plan, the correct course for the Parole Board to follow is to make the
release direction conditional upon a satisfactory release plan being presented.
[20] In R v Parole Board, ex p Robinson (29
July 1999, unreported) a man found guilty of manslaughter had been sentenced to
life imprisonment. As this is not a
mandatory sentence he was a ‘discretionary lifer’. A panel of the Parole Board chaired by
Alliott J heard an application for release and concluded that there was ‘no
evidence of significant risk to life or limb’ and that such risk as did exist
(‘a risk of committing minor sexual offences under the influence of alcohol
indulged as a result of stress’) ‘should be susceptible to management in a
structured release plan not necessarily involving hostel accommodation and
preferably within range of your work placement’. Alliott J retired from the Parole Board
shortly after this decision. A second
panel, chaired by Judge Cotton, was convened for the formulation of an
appropriate structured release plan.
That panel revisited the question of risk and on essentially the same
evidence as that before the first panel reached an opposite conclusion, namely
that if the applicant ‘were to be released without the support and supervision
of the Probation Service, you would present a more than minimal risk of
committing sexual offences involving a danger to life and limb’. The question for the court (Simon Brown LJ
and Newman J) was whether the second panel were entitled to address this
question afresh. The court held that
they were not. Following the decision of
the
19
European Court of Human Rights in Thynne v UK (1991)
13 EHRR 666, the Parole Board’s decision in cases of discretionary lifers
(having previously only been advisory) had been made determinative. The first panel’s decision was not
preliminary or provisional: rather it was final and conclusive. In particular, that panel’s conclusion as to
risk was not dependent upon a successful structured release plan being devised. The first panel had concluded that the ‘risk
of committing minor sexual offences’ was a risk not itself sufficient to have
justified continued detention. The
court’s view was that the first panel had been wrong in thinking that it could
not actually direct release until a release plan was in place. An argument that risk assessment was so
fundamental to the exercise of power under s 28 that a different perception of
risk by a second panel entitled the later panel to override the earlier panel
was rejected. There was room for two
views and each panel’s conclusion was rational and tenable, but the question
was whether the second panel was entitled to revisit the issue. If not, then necessarily its conclusions upon
that issue were immaterial. A further
argument that s 12(1) of the Interpretation Act 1978 entitled the panel to
revisit the matter was also rejected.
The first panel decided a question which vitally affected the
applicant’s fundamental rights. It was
doing so, moreover, as an independent statutory body whose functions were
designed to satisfy the requirements of art 5 of the convention. Justice to discretionary life prisoners in
the post-tariff period required that once a prisoner succeeded in the face of
opposition in satisfying a panel he could safely be released, that decision must
be regarded as final and conclusive, subject only to the Secretary of State
demonstrating that it was fundamentally flawed or pointing to a supervening
material change of circumstances. Once a
panel had decided that a prisoner could safely be released irrespective of
whether a particular form of release plan is feasible, then the Prison Service
and the Probation Service must faithfully accept that determination and do
their best to achieve its successful implementation.
[21] Plainly R v Parole Board, ex p
Robinson is authority that the Parole Board can reach a conclusion that
there is no significant risk even without there being a release plan. Whilst Miss Krause sought to derive more than
this from the R v Parole Board, ex p Robinson decision, she acknowledged
that the decision was based on the Parole Board having made a conclusive
determination on the first occasion. She
accepted that there might be some cases in which the Parole Board could say
under s 28(6)(b), ‘without seeing a release plan we cannot be satisfied’. Taking that approach however would lead to
delays prolonging unnecessarily the detention of the prisoner—there would
always be residual concerns which would need to be dealt with by a release plan.
[22] Miss Krause then turned to issue 2(ii),
the relationship between the Home Secretary and the Parole Board. She began with the question whether the Home
Secretary could lawfully give directions to the Parole Board when it was acting
judicially, and submitted that the legal principles had been correctly
identified in a letter of 1 April 1993 sent by the Prison Service to ‘Governors
of all Lifer Establishments’. This
letter had been sent after the 1991 Act had altered relevant statutory
provisions so as to comply with the European Court of Human Rights decision in
Thynne v UK. Prior to 1 April 1993,
directions given by the Home Secretary to the Parole Board on the release,
transfer to open conditions, and recall of life sentence prisoners had applied
to all lifers. In Thynne v UK the
European court had been considering the case of discretionary lifers whose
tariff
20
had expired.
In the light of that decision the 1991 Act made the Parole Board’s view
determinative. The letter of 1 April
1993 was written in order to set out directions for mandatory lifers and for
those discretionary lifers whose tariff had not expired. This was made clear in the penultimate
paragraph, which went on to explain:
‘You will, of course,
know that in the case of discretionary lifers whose tariff has expired, the
Home Secretary plays no part in their release.
In these circumstances, it is not appropriate for him to give the Parole
Board directions in relation to tariff-expired discretionaries.’
[23] Following the decision in Thynne v UK
subsequent cases in the European Court of Human Rights widened the
circumstances where decisions of the Parole Board were to be
determinative. In Singh v UK, Hussain
v UK Joined cases App No 23389/94 and App No 21928/93 (1996) 22 EHRR 1, the
court was concerned with those detained at Her Majesty’s pleasure. At that time, such prisoners were categorised
as ‘mandatory lifers’. The European
court concluded that once the tariff for such persons had expired, they were in
the same position as discretionary lifers.
This led to the 1997 Act giving effect to the Singh v UK decision
by treating such persons as discretionary lifers falling within s 28 of the
Act, while mandatory lifers were dealt with under the provisions of s 29. In Stafford v UK (2002) 13 BHRC 260
the European Court of Human Rights had held that mandatory lifers were to be
dealt with in the same way as discretionary lifers. Applying this decision, the House of Lords
concluded in R (on the application of Anderson) v Secretary of
State for the Home Dept [2002] UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC
837 that s 29 of the 1997 Act was incompatible with the convention. Accordingly the Criminal Justice Act 2003 had
repealed s 29 of the 1997 Act.
[24] What ought to have happened, said Miss
Krause, was that applying the principle set out in the letter of 1 April 1993,
the Home Secretary ought to have recognised that he played no part in the
release of any life prisoner whose tariff had expired, and that in these
circumstances it was not appropriate for him to give the Parole Board
directions in relation to any such prisoner.
Far from recognising this, the Home Secretary’s directions of August
2004 applied to all such prisoners (see ‘Directions to the Parole Board under
Section 32(6) of the Criminal Justice Act 1991: Release and Recall of Life
Sentence Prisoners’).
[25] At this point it is convenient to set out
relevant passages in the directions:
‘4. The test to be
applied by the Parole Board in satisfying itself that it is no longer necessary
for the protection of the public that the prisoner should be confined, is
whether the lifer’s level of risk to the life and limb of others is considered
to be more than minimal.
5. Before directing a
lifer’s release under supervision on life licence, the Parole Board must
consider:–
a) all information
before it, including any written or oral evidence obtained by the Board;
b) each case on its
merits, without discrimination on any grounds;
c) whether the release
of the lifer is consistent with the general requirements and objectives of supervision
in the community, namely;
21
protecting the public by
ensuring that their safety would not be placed unacceptably at risk;
securing the lifer’s
successful re-integration into the community.
6. In assessing the
level of risk to life and limb presented by a lifer, the Parole Board shall
consider the following information, where relevant and where available, before
directing the lifer’s release, recognising that the weight and relevance
attached to particular information may vary according to the circumstances of
each case:
a) the lifer’s
background, including the nature, circumstances and pattern of any previous
offending;
b) the nature and
circumstances of the index offence, including any information provided in
relation to its impact on the victim or victim’s family;
c) the trial judge’s
sentencing comments or report to the Secretary of State, and any probation,
medical, or other relevant reports or material prepared for the court;
d) whether the lifer has
made positive and successful efforts to address the attitudes and behavioural
problems which led to the commission of the index offence;
e) the nature of any
offences against prison discipline committed by the lifer;
f) the lifer’s attitude
and behaviour to other prisoners and staff;
g) the category of
security in which the lifer is held and any reasons or reports provided by the
Prison Service for such categorisation, particularly in relation to those
lifers held in Category A conditions of security;
h) the lifer’s awareness
of the impact of the index offence, particularly in relation to the victim or
victim’s family, and the extent of any demonstrable insight into his/her
attitudes and behavioural problems and whether he/she has taken steps to reduce
risk through the achievement of life sentence plan targets;
i) any medical,
psychiatric or psychological considerations (particularly if there is a history
of mental instability);
j) the lifer’s response
when placed in positions of trust, including any absconds, escapes, past
breaches of temporary release or life licence conditions and life licence
revocations;
k) any indication of
predicted risk as determined by a validated actuarial risk predictor model, or
any other structured assessments of the lifer’s risk and treatment needs;
l) whether the lifer is
likely to comply with the conditions attached to his or her life licence and
the requirements of supervision, including any additional non-standard
conditions;
m) any risk to other
persons, including the victim, their family and friends.
7. Before directing
release on life licence, the Parole Board shall also consider:–
a) the lifer’s
relationship with probation staff (in particular the supervising probation
officer), and other outside support such as family and friends;
b) the content of the
resettlement plan and the suitability of the release address;
22
c) the attitude of the
local community in cases where it may have a detrimental effect upon
compliance;
d) representations on
behalf of the victim or victim’s relatives in relation to licence conditions.’
[26] The crucial element, said Miss Krause,
was independence. In Benjamin v UK (2003)
13 BHRC 287 the European Court of Human Rights was concerned with patients
detained under the Mental Health Act 1983.
It held that there was a violation of art 5(4) where the power to
release lay with the Home Secretary, even though his practice was to follow the
recommendation of the mental health review tribunal which independently
undertook the review of the applicant’s continued detention. The United Kingdom argued that this practice
meant that the tribunal’s lack of power to order release ‘was a matter of form
not substance’. Paragraph 36 of the
judgment (at 295–296) rejected this argument:
‘… In this case, the
power to order release lay with the Secretary of State, even though he may have
been under some constraints of administrative law … The ability of an applicant
to challenge a refusal by the Secretary of State to follow his previous policy
in the courts would not remedy the lack of power of decision in the tribunal …
Similarly, although both parties appear to agree that the Secretary of State,
following entry into force of the [Human Rights Act] 1998, would not be able
lawfully to depart from the tribunal’s recommendation, this does not alter the
fact that the decision to release would be taken by a member of the executive
and not by the tribunal. This is not a
matter of form but impinges on the fundamental principle of separation of
powers and detracts from a necessary guarantee against the possibility of abuse
…’
[27] In para 33 of the judgment (at 295) it
was said that the ‘court’ referred to in art 5(4) did not necessarily have to
be a court of law of the classic kind integrated within the judicial machinery
of the country. The use of this word denoted
bodies which exhibited the necessary judicial procedures and safeguards
appropriate to the kind of deprivation of liberty in question, including most
importantly independence of the executive and of the parties. At para 34 the court, although dealing with a
mental health case, cited the Singh v UK decision.
[28] In oral argument Miss Krause clarified
the basis on which issue 2 would warrant an order requiring the Parole Board to
reconsider its decision of 8 October 2004 forthwith. First, such an order would flow from success
by the claimant on issue 2(i). Second,
such an order would flow from a finding that the directions were invalid
because they contravened art 5(4). Third,
such an order would flow from a finding that the statutory provisions limiting
referrals to the Parole Board contravened art 5(4). I pointed out that on this third argument a
declaration of incompatibility would not lead to an order requiring the Parole
Board to reconsider the matter, for until amendment the statute would remain in
force despite any declaration of incompatibility.
[29] At this point Mr Kovats for the
defendants intervened to observe that the same problem arose on the second
argument, for there was statutory authority for the Home Secretary’s directions
in s 32(6) of the 1991 Act. For
convenience I set out here the provisions of s 32 of that Act:
23
‘PART II
EARLY RELEASE OF PRISONERS
Preliminary
32. The Parole
Board.—(1) The Parole Board shall be, by that name, a body corporate and as
such shall—(a) be constituted in accordance with this Part; and (b) have the
functions conferred by the Part in respect of long-term and short-term
prisoners and by Chapter II of Part II of the Crime (Sentences) Act 1997
(“Chapter II”) in respect of life prisoners within the meaning of that Chapter.
(2) It shall be the duty
of the Board to advise the Secretary of State with respect to any matter
referred to it by him which is connected with the early release or recall of
prisoners.
(3) The Board shall deal
with cases as respects which it makes recommendations under this Part or
Chapter II on consideration of—(a) any documents given to it by the Secretary
of State; and (b) any other oral or written information obtained by it, and if
in any particular case the Board thinks it necessary to interview the person to
whom the case relates before reaching a decision, the Board may authorise one
of its members to interview him and shall consider the report of the interview
made by that member.
(4) The Board shall deal
with cases as respects which it gives directions under this Part or Chapter II
on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to
subsections (3) and (4) above, the Secretary of State may make rules with
respect to the proceedings of the Board, including provision authorising cases
to be dealt with by a prescribed number of its members or requiring cases to be
dealt with at prescribed times.
(6) The Secretary of
State may also give to the Board directions as to the matters to be taken into account
by it in discharging any functions under this Part or Chapter II and in giving
any such directions the Secretary of State shall in particular have regard
to—(a) the need to protect the public from serious harm from offenders; and (b)
the desirability of preventing the commission by them of further offences and
of securing their rehabilitation.
(7) Schedule 5 to this
Act shall have effect with respect to the Board.’
[30] Miss Krause responded that on its true
construction s 32(6) did not apply to the present case. However, if that were wrong, she would seek
to amend and ask for a declaration of incompatibility in relation to s 32(6).
[31] The argument then turned to the alleged
incompatibility of s 28(6)(a) and (7) of the 1997 Act with the convention, and
two recent admissibility decisions of the European Court of Human Rights: Blackstock
v UK [2005] All ER (D) 218 (Jun) and Spence v UK App No
1190/04 (30 November 2004, unreported), decided by the court on 27 May 2004 and
30 November 2004 respectively. The court
observed in the former case that art 5(4) required that the lawfulness of
detention had to be decided by an independent tribunal. In the latter it observed that review of
detention must be conducted by a ‘court-like’ body. There was an implied requirement under art
5(4) not only that competent courts must reach their decisions ‘speedily’ but
also that, where an automatic review of the
24
lawfulness of detention has been instituted, their
decisions must follow ‘at reasonable intervals.’ In both cases, however, the court held that
art 5(4) did not contain any requirement for ‘the court’ to have the power to
set the timing of subsequent reviews of detention. In Spence v UK the court noted that
reasonableness is to be determined in the light of the circumstances of each
case, and that the court has therefore refrained from attempting to rule as to
the maximum period of time between reviews.
In a case where the Parole Board had recommended a review within a year
the commission found that a period of almost two years was not justified. By contrast a 24-month period for a prisoner
who had been recently transferred to category C conditions and with whom
ongoing work towards release was in progress was found in one case not to show
a failure to apply standards of reasonable expedition. Mr Spence had demonstrated a pattern of
behaviour linked with alcohol which continued to give rise to serious concern;
after his transfer to open prison aspects of his conduct requiring further work
and close monitoring were identified.
The domestic courts had found that the authorities had not applied a
blanket policy of two years but had addressed the individual circumstances of
the case. The European Court of Human
Rights was satisfied that the question of review and progress towards release
had been approached with flexibility and due regard to the applicant’s
particular problems and potential for progress, and accordingly there was no
breach of art 5(4).
[32] Prior to the decisions of the European
Court of Human Rights in Blackstock v UK and Spence v UK, the
Court of Appeal in R (on the application of Murray) v Parole
Board [2003] EWCA Civ 1561 at [20], [2003] All ER (D) 84 (Nov) at [20] said
this:
‘It is clear from the
Strasbourg jurisprudence that a review date must itself be subject to review if
the prisoner’s progress warrants it. It
is not immediately obvious why reconsideration of the review date is not as
much a judicial function as the review itself.
If so, we would respectfully question whether internal procedures by
which the prisoner can request the Home Secretary to review the interval which
has been set meet the standard set by the European Court of Human Rights. While we appreciate that the prisoner has the
initiating role in the procedure, it seems to us that from that point on the
review of the interval is entirely in the hands of the executive. The fact that on judicial review the court
would retake the decision about the continuing reasonableness of the set
interval may not be an answer to the want of a court (which the Parole Board is
for these purposes) to take it in the first place.’
[33] Miss Krause commented that it was
difficult to know the origin of the suggestion that there were internal
procedures by which the prisoner could request the Home Secretary to review the
interval. In Oldham v UK (2001)
31 EHRR 813 at 819–820 (para 36) the European court had recorded that while the
discretionary lifers panel could recommend earlier review and the Home
Secretary could direct an earlier date, there was no possibility for an
applicant himself to apply for a review within the two-year period.
[34] Miss Krause said that on this aspect her
arguments were not about timing as such.
They focused on the prohibition on access to the Parole Board other than
through the Home Secretary. It was
submitted that this prohibition was of itself a breach of art 5(4) and further
showed a lack of independence on the part
25
of the Board.
She accepted that the points made in the present case in that regard and
on independence generally could have been taken in the cases about timing. Nevertheless they were not taken, and she was
not aware of any European court or domestic case on the question whether the
Parole Board has the independence stressed in Benjamin v UK.
[35] Miss Krause referred to the most recent
English case on timing, R (on the application of Day) v
Secretary of State for the Home Dept [2004] EWHC 1742 (Admin), [2004] All
ER (D) 274 (Jun). In that case a
mandatory lifer sought judicial review on alternative grounds: (1) that it was
unlawful for the Home Secretary to exercise the power to fix the date of the
next review, because that infringed the claimant’s right under art 5(4) to have
the lawfulness of his detention decided speedily by a court, the appropriate
body to fix the review date being the Parole Board; or (2) alternatively, if it
was lawful for the Home Secretary to exercise the power to fix the review date,
then in the particular circumstances the way in which that power was exercised
deprived the claimant of a speedy decision in breach of art 5(4).
[36] Gibbs J rejected ground 1, but on ground
2 concluded that in the case before him the decision had not provided for
speedy determination of the lawfulness of the claimant’s detention. For this purpose he set out the relevant test
(at [42] and [43]):
‘Finally, on the
question of the test which the court should apply to the lawfulness of the
review interval provided by the Secretary of State counsel are helpfully in
agreement, both counsel agree that it is not appropriate for me to apply the
Wednesbury test (Associated Provincial Picture Houses Ltd v Wednesbury
Corp [1947] 2 All ER 680, [1948] 1 KB 223), ie it is not right to say that
the claim can only succeed by establishing that the Secretary of State’s
decision is outside the range of reasonable decision making.
[43] The proper test by
common consent is whether the court decides that the Secretary of State’s
decision succeeds or fails in providing a speedy review as required by art 5(4)
having regard to all the circumstances of the case giving due weight to the
views of the Secretary of State, the Secretary of State being the person who
through his servants or agents is in a good position to assess all the relevant
circumstances.’
[37] Miss Krause submitted that Gibbs J had
been wrong, when rejecting ground 1, to hold that the availability of judicial
review meant that any restriction on access to the review process resulting
from the statutory scheme did not restrict or reduce access to such an extent
that the very essence of the right of review was impaired. She commented that seeking judicial review
can take too long—one has to go through the executive, then to the
administrative court and then back to the Home Secretary in order to get in
front of the art 5(4) court, the Parole Board, and six months may be required
from the Home Secretary to the Parole Board.
[38] After the short adjournment Miss Krause
put forward proposed amendments to the claim form, including additional grounds
for relief. In order to differentiate
them from the original grounds, I shall prefix each with a capital A. These were as follows:
A2. The claimant’s challenge is to the lack of
independence of the Parole Board. The
claimant has expressed this through two matters: (a) the issuing of directions
by the Secretary of State to the Parole Board in respect of the discharge
26
of the latter’s statutory judicial functions; and (b)
the discretionary power of the Secretary of State to refer a lifer’s case to
the Parole Board upon tariff expiry and thereafter.
A3. The Secretary of State relies upon s 32(6) of the
1991 Act for the purpose of the directions referred to at paragraph A2(a)
above.
A4. If the Secretary of State is right in placing
reliance on s 32(6) of the 1991 Act, the claimant seeks a declaration of
incompatibility in respect of that statutory provision, for the reasons set out
in his grounds and his supplementary skeleton argument.
A5. The claimant however contends, notwithstanding
the wide wording of s 32(6) of the 1991 Act, that it applies only to cases
referred under s 32(2) of the 1991 Act (namely advice cases) and cases
involving the early release of determinate sentence prisoners (caught by s
32(4) of the 1991 Act) where the Secretary of State had made directions for the
exercise of the Parole Board’s advisory functions and/or functions exercised
under delegated powers.
A6. If the claimant is correct on this
interpretation, there is no need for a declaration of incompatibility since
there is no power in law for the Secretary of State to issue directions to the
Parole Board in the discharge of judicial functions.
A7. In respect of para A2(b) above, the claimant
further seeks a declaration of incompatibility in respect of s 28(7) of the
1997 Act as a logical consequent step to his claim that s 28(6)(a) is
incompatible.
[39] Mr Kovats did not object to this
amendment and I granted permission for it.
Miss Krause confirmed that the matters set out at A2(a) and (b) were the
only grounds on which the claimant asserted lack of independence in these
proceedings.
[40] Miss Krause said that on lack of access
to a court she relied on R (on the application of D) v
Secretary of State for the Home Dept [2002] EWHC 2805 (Admin), [2003] 1 WLR
1315. That case concerned a
discretionary lifer who was the subject of a restriction direction under s 49
of the Mental Health Act 1983. Under
that Act a mental health review tribunal could notify the Home Secretary
whether in its opinion the patient was entitled to be discharged and if the
patient was entitled to be conditionally discharged, could recommend under s
74(1)(b) of the Act that in the event of the patient not being discharged the
patient should continue to be detained in hospital. However in these circumstances the tribunal
did not have power to order the patient’s discharge. It had been held in R v Secretary of State
for the Home Dept, ex p Hickey (No 1), R v Secretary of State for
the Home Dept, ex p H, F, B and W [1995] 1 All ER 479, [1995] QB 43 that
prisoners detained under the 1983 Act do not have the benefit of s 34(5) of the
1991 Act, which would otherwise have entitled a tariff-expired discretionary
lifer to require the Home Secretary to refer his case to the Parole Board. However, it was the Home Secretary’s policy
to refer to the Board cases of all restricted patients who remained in hospital
following a tribunal recommendation under s 74(1)(b) of the 1983 Act. Stanley Burnton J made a declaration that, in
the class of case in question, the absence of any power in s 74 of the 1983 Act
or any other provision enabling a ‘court’, for the purposes of art 5 of the
convention, to order the release of a prisoner was incompatible with the right
to have the lawfulness of detention decided speedily by a court under art 5(4).
[41] Having noted the European Court of Human
Rights decision in Benjamin v UK (2003) 13 BHRC 287 that art 5(4)
requires the ‘court’ to have the legal power
27
to direct the release of a prisoner, Stanley Burnton
J said ([2003] 1 WLR 1315 at [24]):
‘The word “entitled” in
article 5(4) connotes an enforceable right.
If an act of the executive is required for a person to have access to a
court, that person is not “entitled” to take proceedings to test the lawfulness
of his detention unless the executive is under a legal duty to grant that
access. The [Home Secretary] is under no
such duty in respect of discretionary life prisoners in the circumstances I am
considering: he has a discretionary power.
In exercising that power, he follows a policy that he has formulated and
adopted and that in theory he could modify or abrogate. That he has no intention of doing so, and
would never do so, is besides the point.
The word “entitled” in article 5(4) is not satisfied unless there is a
legal right of access to a court that can determine the lawfulness of detention
and direct the prisoner’s release if his detention is not justified.’
[42] Stanley Burnton J held that it was not
possible to interpret the relevant legislation so as to avoid incompatibility
with art 5(4), and accordingly he made a declaration of incompatibility. Miss Krause relied on this case as showing
that both timing and substance of the referral are linked. She submitted that the Parole Board could
easily screen applications, and that there was no need for the Secretary of
State to have a role in this.
[43] On issue 2(i) Mr Kovats for the
defendants relied on the decisions in the Court of Appeal and House of Lords in
R (on the application of H) v Secretary of State for the Home
Dept [2002] EWCA Civ 646, [2003] QB 320, [2002] 3 WLR 967; [2003] UKHL 59,
[2004] 1 All ER 412, [2004] 2 AC 253.
That case concerned patients detained under mental health legislation,
where the tribunal considered that the appropriate course was to direct
discharge subject to specified conditions, but that release should be deferred
in order to enable their implementation.
If the conditions were not met the patient would remain in
hospital. This was held to involve no
breach of art 5(1)(e) of the convention.
(In that particular case however, the delay in complying with conditions
was a violation of art 5(4).) The Court
of Appeal ([2003] QB 320 at [86]) had identified the same test as for the
release of prisoners: ‘life or limb’.
The last sentence of [86] recognised that danger to life or limb may
depend upon whether a controlled regime, including supervision and psychiatric
treatment, would be available to the patient in the community. In the House of Lords Lord Bingham of Cornhill
cited with approval (at [28]) the judgment of Lord Phillips of Worth Matravers
MR in R (on the application of K) v Camden and Islington
Health Authority [2001] EWCA Civ 240 at [32]–[34], (2001) 61 BMLR 173 at
[32]–[34], [2002] QB 198, including the conclusion (at [34]):
‘If a health authority
is unable, despite the exercise of all reasonable endeavours, to procure for a
patient the level of care and treatment in the community that a tribunal
considers to be a prerequisite to the discharge of the patient from hospital, I
do not consider that the continued detention of the patient in hospital will
violate the right to liberty conferred by art 5.’
[44] Mr Kovats submitted that there was a
valid analogy between the regime for those detained in mental health hospitals
and that for those detained in prison.
There was no reason of logic or policy why release should be viewed in
isolation of what would happen, and what would happen is set out in the release
plan. The
28
case of R v Parole Board, ex p Robinson (29
July 1999, unreported) could be distinguished, because in that case the first
panel had found no risk to life or limb regardless of any release plan.
[45] As to issue 2(ii) Mr Kovats observed that
far from suggesting that the Parole Board was not independent, the cases had
assumed that it was a court within art 5(4).
He cited R (on the application of Murray) v Parole
Board [2003] All ER (D) 84 (Nov) at [20] and R (on the
application of Day) v Secretary of State for the Home Dept [2004]
All ER (D) 274 (Jun) at [20]. He was not
aware of any case where the power to give a direction was challenged (as
opposed to complaints about the application of a direction). It could be seen on examination that the
directions were general and were not directed to any specific case. He accepted that direction 4 indicated what
the outcome should be on a general basis but no other directions went that
far. They simply assisted the Parole
Board to give a structured approach to consideration of the case before it. The ratio of both Benjamin v UK and
R (on the application of D) v Secretary of State for the Home
Dept [2003] 1 WLR 1315 was that the power to direct release did not lie
with a court.
[46] Mr Kovats said that the claimant had not
identified any particular direction allegedly compromising the judicial
independence of the Parole Board apart from direction 7(b). As to that direction, ‘resettlement plan’ and
‘release plan’ were the same thing. It
was sensible to require the Parole Board to consider whether a release plan
might meet their concerns if any.
Direction 7(b) would not prevent the first tribunal in R v Parole
Board, ex p Robinson from doing what it did, which was to adjourn the case
so that an appropriate structured release plan could be formulated with
appropriate conditions in addition to the standard ones. Indeed the first panel, said Mr Kovats, could
have complied with direction 7(b) by saying that they had regard to a release
plan, albeit one with no content.
[47] Parliament had left the power to give
directions in place. In any event the
letter of 1993 had been superseded. Mr
Kovats likened the directions to the CPR.
It would be for the Home Secretary to change direction 4 if the courts
changed the test. There was no express
obligation on the Parole Board to comply with a direction. Any implicit obligation might be overridden
by human rights considerations. The
directions actually given imposed no exclusion limiting the matters to be taken
into account by the Parole Board. When
assessing whether a power of the kind found in s 32(6) compromises
independence, the court looks at what actually happens, not what might
theoretically happen. He submitted that
s 32(6) had a legitimate purpose. There
was no reason why the Home Secretary should not be involved with identifying
matters for consideration just as much as with the timing of referrals. Further the Home Secretary was politically
accountable—if things went wrong, it was the Home Secretary who would be
criticised.
[48] Mr Kovats concluded by saying that
following the Criminal Justice Act 2003 art 5(4) did not apply to lifers prior
to the expiry of tariff, nor to determinate prisoners in certain circumstances,
nor to compassionate release. Section
32(5) of the 1991 Act permitted the Secretary of State to make rules with
respect to the proceedings of the Board, including provision authorising cases
to be dealt with by a prescribed number of its members or requiring cases to be
dealt with at prescribed times. As that
could be monitored by judicial review, similarly s 32(6) could be so
monitored. The claimant’s argument
proved too much. If a mere power in the
Home Secretary to give directions disabled the Parole Board from being a court
then all prisoners whose cases had been dealt with by the Parole
29
Board on the assumption that it was a court had had
their rights infringed—even those who were released.
[49] Miss Krause in reply on issue 2(i) said
that under domestic law a patient can receive an absolute discharge from a
mental health review tribunal. This
differed from the position as regards release of post-tariff lifers. As to issue 2(ii) the directions themselves
assumed there was an obligation to comply: direction 5 used the word ‘must’,
directions 6 and 7 the word ‘shall’. The
Parole Board themselves had interpreted the directions as mandatory in their
letter of 16 December 2004. If there
were a dispute as to what the law required—for example on the release plan—the
directions fettered the Parole Board’s discretion. There was the potential for a direction to be
issued saying, for example, that the Board should pay particular attention to a
prisoner’s use of cannabis. Miss Krause
contrasted s 32(5) with s 32(6)—the former did not go to the substance of the
decision-making power. The court should
not limit itself to simply what happened in practice. She referred to the Benjamin v UK (2003)
13 BHRC 287 decision at 295–296 (para 36).
This observed that where issues arose as to whether certain measures
were ‘in accordance with the law’ under art 8 of the convention, the existence
of administrative practices may have a bearing on the conditions of lawfulness
of measures. Under art 5(4) however, the
plain wording of the provision referred to the decision-making power of the
reviewing body, and it presupposed the existence of a procedure in conformity
with its provisions without the necessity to institute separate legal
proceedings in order to bring it about.
[50] When this judgment was in course of
preparation counsel drew my attention to three additional cases. These were R (on the application of
H) v Secretary of State for Health [2004] EWCA Civ 1609, [2005] 3
All ER 468, [2005] 1 WLR 1209, R v Parole Board, ex p Watson [1996] 2
All ER 641, [1996] 1 WLR 906 and R (on the application of Al-Hasan) v
Secretary of State for the Home Dept, R (on the application of Carroll)
v Secretary of State for the Home Dept [2005] UKHL 13, [2005] 1 All ER
927. I have considered these cases, but
I do not find them of assistance on the specific questions which I must decide.
ANALYSIS: ISSUE 2(i)
[51] I take as the first part of issue 2(i)
the question whether, leaving out of account entirely the Home Secretary’s
directions, the Parole Board was legally entitled to adopt the approach to a
release plan set out in para 8 of its letter of 8 October 2004. The first sentence of this paragraph included
the observation that a suitable release plan, among other things, was essential
before release was possible.
[52] The context for that observation was that
previous panels held by the Parole Board had been concerned that the index
offence was linked to alcohol abuse, sexual jealousy, use of violence, and
problems with women. Those panels had
noted that the claimant had failed to deal with these risk areas. That failure had continued since the last panel. In particular, the claimant had refused
assessment for two relevant programmes and had not had any involvement with the
appropriate team.
[53] I agree with Miss Krause that R v
Parole Board, ex p Robinson (29 July 1999, unreported) shows that there may
be cases where a release plan is not a pre-condition to a decision in the
claimant’s favour. However I do not
agree with her submission that in this case the Parole Board adopted an
approach
30
inconsistent with R v Parole Board, ex p
Robinson. In context the first
sentence of para 8 simply observes that in relation to this particular claimant
both a suitable release plan and realistic relapse prevention strategies were
essential before his release was possible.
In the light of the risk factors identified by the Parole Board, and the
claimant’s failure to deal with them, in my view this observation was not
merely reasonable: it was plainly right.
I do not read the Parole Board’s letter of 8 October 2004 as saying that
in every case a suitable release plan is essential.
[54] Even if the Parole Board had mistakenly
believed that in every case a suitable release plan is a pre-requisite to
release I would not have held its decision in this case to be invalid. What was said in para 8 was not put forward
by the Parole Board as the sole, or even the principal, reason for its
decision. Paragraphs 5, 6 and 7 of the
letter of 8 October 2004 contain findings to the effect that the claimant
continued to refuse to deal with risk areas, that there had been no change to
previous risk levels other than the claimant’s poor state of health, and that
notwithstanding his current state of health he would still present a
substantial risk to the community if he were to be released or transferred to
open conditions. These findings, as it
seems to me, go hand in hand with an inevitable conclusion on the facts of this
case that a suitable release plan would be essential before this claimant could
be considered no longer to pose a substantial risk to life or limb. Apart from issue 1, which I have resolved
against the claimant, there was no challenge to these findings, nor could there
have been. How, in these circumstances,
could the Parole Board’s decision have been affected by any mistaken belief
that in every case a suitable release plan is a pre-requisite to release? It seems to me that any such mistaken belief
would not have been causative in any sense of the decision not to release, for
there would simply have been no room for it to come into play.
[55] Thus I find against the claimant on the
first part of issue 2(i). This brings me
to the remainder of issue 2(i). Miss
Krause argued that the Parole Board linked the lack of a release plan with risk
to life and limb because in direction 7(b) the Home Secretary told it that in
every case it must do so. As direction
7(b) was invalid—either because of what it said or because the whole of the
directions were invalid for reasons unconnected with the terms of direction
7(b)—it followed that the Parole Board had acted unlawfully.
[56] I shall consider the alleged general
invalidity of the directions under issue 2(ii).
So far as direction 7(b) is concerned, it requires the Parole Board to
consider the content of the resettlement plan and the suitability of
the release address (my emphases). I
do not regard this as inconsistent with R v Parole Board, ex p
Robinson. Direction 7(b) does not
say that there must in every case be a resettlement plan and a release
address. I read this direction as saying
that where there is either a resettlement plan, or a resettlement address, or
both, then the Parole Board must consider them before directing release on
licence. When read in this way direction
7(b) involves no error of law.
[57] No part of the directions other than
direction 7(b) is said by the claimant to have involved any misinterpretation
of the law concerning lack of a release plan.
In the claimant’s case there is strong evidence that the Parole Board
did not regard direction 7(b) as laying down that in every case a suitable release
plan is a pre-requisite to release. The
Board’s letter of 16 December 2004 said:
‘In the vast majority
of cases, the arrangements for supervising a life sentence prisoner
including the nature of the release address are an integral part of the
31
decision to release or
not. Indeed the [directions] require the
Board to take such factors into account when making its decision.’
The words I have italicised make it clear that the Parole
Board did not regard itself as bound by a universal rule. Accordingly I conclude on issue 2(i) as a
whole that the approach taken by the Parole Board to the linking of risk with a
release plan was lawful.
[58] Moreover it seems to me that in this case
any invalidity of direction 7(b), or the directions as a whole, would not have
played a part in the Parole Board’s inevitable conclusion on the facts of this
case that a suitable release plan would be essential before this claimant could
be considered no longer to pose a substantial risk to life or limb. On the first part of issue 2(i) I concluded
that any error of law would not have been causative, and should therefore not
lead to invalidity of the Parole Board’s decision. On the remainder of issue 2(i) it equally
seems to me that the Parole Board’s decision not to release the claimant was
not influenced by anything in the directions.
Accordingly even if direction 7(b)—or the whole of the directions—were
invalid, this would not lead me to hold that the Parole Board’s decision was unlawful
because it linked risk with the absence of a release plan.
ANALYSIS: ISSUE 2(ii)
[59] Following the decisions of the European
Court of Human Rights in Stafford v UK (2002) 13 BHRC 260 and the House
of Lords in R (on the application of Anderson) v Secretary of
State for the Home Dept [2002] 4 All ER 1089, [2003] 1 AC 837 it is common
ground that the convention requires that the lawfulness of the claimant’s
continued detention be the subject of examination by a court satisfying the
requirements of art 5(4). It is also
common ground that one such requirement is independence of the executive and of
the parties.
[60] The body which in England and Wales is
said to constitute such a court is the Parole Board. The claimant gives two reasons for asserting
that the Parole Board does not have the independence required by art 5(4), and
that accordingly questions arise under the 1998 Act as to whether his detention
has been the subject of the examination required by the convention. The first reason is that the Parole Board
acts, or is required to act, in accordance with directions of the Home
Secretary as to the matters to be taken into account by it in discharging its
functions. The second reason is the
inability of the claimant to have access to the Parole Board without first
passing through the Home Secretary.
[61] It may seem surprising that two parties
required to be independent of each other have appeared by the same solicitors
and counsel. They are, however, entitled
to do this if both are satisfied that they are in agreement on the issues which
arise. I proceed on the footing that the
Home Secretary and the Parole Board share a common stance on the legal
principles advanced by Mr Kovats.
[62] I begin with the claimant’s second reason
for challenging the independence of the Parole Board. It is well established that art 5(4) does not
require a court of law of the classic kind.
It is equally well established that art 5(4) requires that the ‘court’
must be independent and must reach its decision speedily, and where there is an
automatic review of the lawfulness of detention it implies that decisions must
follow at ‘reasonable intervals’. Under
our domestic law, s 28(6) of the 1997 Act makes the Home Secretary a necessary
‘gateway’ to reach the Parole Board, and s 28(7) imposes an obligation to open
32
the gate in certain circumstances. Do these provisions lead to the conclusion
the Board lacks the independence required under art 5(4)?
[63] The key to answering this question is
found in the European Court of Human Rights decisions in Blackstock v UK [2005]
All ER (D) 218 (Jun) and Spence v UK App No 1190/04 (30 November 2004,
unreported). In each of those
cases the court stressed that the right set out in art 5(4) is a procedural one
and it is for the State to ensure that it will be made effective. That article does not, however, require the
‘court’ itself to have the power to set the timing of subsequent reviews of
detention. It is true that the ruling in
both those cases focused on a proposition that the body controlling timing of
references had to be independent, rather than Miss Krause’s proposition that
the Home Secretary’s gateway role deprived the Parole Board of
independence. In each of these two
cases, however, the court has rejected the argument that an executive body
should not determine what the interval should be. Implicit in this must be rejection of any
argument that art 5(4) is incompatible with any executive fetter on access to
the ‘court’. At para [45] of his
judgment in R (on the application of Day) v Secretary of State
for the Home Dept [2004] All ER (D) 274 (Jun) Gibbs J concluded that there
are aspects of the release procedures which remain and properly remain
administrative procedures under the control of the executive. I agree.
That conclusion does not mean that the executive has a free hand. It is under a duty to ensure that the right
set out in art 5(4) is made effective.
To my mind the undertaking of that duty by the executive does not have
the consequence that the Parole Board is any the less judicial and independent.
[64] As to Benjamin v UK (2003) 13 BHRC
287 and R (on the application of D) v Secretary of State for
the Home Dept [2003] 1 WLR 1315, I consider that Mr Kovats rightly
distinguishes the former case as being concerned with whether the suggested
‘court’ has the power to order release.
Such a power is an essential feature of a ‘court’ for the purposes of
art 5(4), and an administrative practice is no substitute. Turning to R (on the application of
D) v Secretary of State for the Home Dept, despite the formal terms
of the declaration granted in that case it seems to me that Stanley Burnton J,
especially at [24] of his judgment, was concerned with the question of access
to the ‘court’. The analogy between R
(on the application of D) v Secretary of State for the Home Dept
and the present case is strong, for the terms of s 34(4)(a) and (5) mirror
those of s 28(6)(a) and (7). It seems
clear, however, that Stanley Burnton J would have regarded the statutory
entitlement found in s 34(5) as adequate to comply with art 5(4): see his
judgment at [26] which envisages that compliance with the convention could be
achieved if R v Secretary of State for the Home Dept, ex p Hickey (No
1), R v Secretary of State for the Home Dept, ex p H, F, B and W [1995]
1 All ER 479, [1995] QB 43 were declared to be no longer good law—that is, if a
prisoner such as D were entitled to invoke s 34(5). The same must be true for a prisoner entitled
to invoke s 28(7). In these
circumstances the decision in R (on the application of D) v Secretary
of State for the Home Dept does not assist Miss Krause.
[65] I add that of course R (on the
application of D) v Secretary of State for the Home Dept was decided
before the European Court of Human Rights decisions in Blackstock v UK
and Spence v UK. The reasoning
([2003] 1 WLR 1315 at [24]) may need to be revisited following those
decisions. There is a further
distinction to be made from the present case.
It proved impossible in R (on the application of D) v
Secretary of State for the Home Dept to identify a legal duty on the
executive to put D’s case before a ‘court’ with power to order his
release. In the present case the
33
claimant says that no express obligation to put his
case before the Parole Board will arise under s 28(7) until 8 October
2006. However I consider that the
combination of the 1998 Act and s 28(7) imposes a legal duty on the Home
Secretary to refer cases to the Parole Board at reasonable intervals, and in
any event within two years of the last determination by the Parole Board. The test of what is a ‘reasonable period’ for
this purpose is that described by Gibbs J in his judgment in R (on
the application of Day) v Secretary of State for the Home Dept
[2004] All ER (D) 274 (Jun) at [42] and [43].
Accordingly I conclude that in any event in this case the claimant’s
entitlement to access to the Parole Board is legally secure and meets the test
put forward in R (on the application of D) v Secretary of
State for the Home Dept [2003] 1 WLR 1315 at [24]. By way of aside, I note that the judgment in
R (on the application of Day) v Secretary of State for the Home
Dept [2004] All ER (D) 274 (Jun) at [9] and the Court of Appeal judgment in
R (on the application of Spence) v Secretary of State for the
Home Dept [2003] EWCA Civ 732, [2003] All ER (D) 354 (May) at [34] (quoted
in the Court of Appeal judgment in R (on the application of Murray)
v Parole Board [2003] All ER (D) 84 (Nov) at [16]) suggest that there is
now in place a procedure for reconsideration of the proposed referral date by
the Home Secretary at the request of the prisoner.
[66] As to enforcement of the legal duty to
grant access, if the claimant considers that the Home Secretary has kept the
gate shut in circumstances where it ought to have been opened, his remedy is to
seek judicial review. On an application
for judicial review this court will—if appropriate—ensure that the Home
Secretary complies with the obligation to refer at reasonable intervals, just
as it will ensure compliance with the express words of s 28(7). This court can act speedily should the need
arise.
[67] I turn to the claimant’s first reason for
alleging lack of independence. The Home
Secretary has given to the Parole Board directions as to matters which it is to
take into account in deciding whether to direct release. In deciding whether to direct release the
Parole Board, if it is to constitute the ‘court’ required by art 5(4), must be
independent of the executive and of the parties. The Home Secretary is both a member of the
executive and a party to the case before the Parole Board. At first sight any directions by the Home
Secretary to the Parole Board ‘as to the matters to be taken into account by
it’ in this context would involve a double breach of the requirement as to
independence inherent in art 5(4).
[68] The defendants’ first answer was that
other cases had assumed that the Parole Board was sufficiently independent to
constitute a ‘court’ for the purposes of art 5(4). That is undoubtedly true, but the defendants
were unable to identify any case where a court has previously been asked to
consider whether directions by the Home Secretary might compromise that
independence.
[69] I shall examine the remaining answers by
the defendants in a different order from that in which they were presented.
[70] A second suggested answer concerns the
role of the Home Secretary, who is politically accountable for the penal
system. It is said that directions by
the Home Secretary as to matters to be taken into account no more compromise
the Board’s independence than the Home Secretary’s role as gateway to the
Board. Here it seems to me that there is
a fundamental difference of character.
The gateway role is simply concerned with access to the Board, and in
this case it is concerned with ensuring that a prisoner is given access to the
Board at reasonable intervals. The
directions purport to govern how the Board actually
34
decides cases once access has been given. This involves what would ordinarily be
regarded as a trespass into the judicial sphere. Political accountability for the penal system
is of great importance. It does not,
however, entail that the Home Secretary should give directions as to judicial
functions: on the contrary, when the Parole Board is exercising judicial
functions the common law and recognised principles of political accountability
both require that the Home Secretary and other members of the executive respect
the judicial nature of those functions.
[71] A third suggested answer concerned the
nature of the directions. The primary
point here is that the directions are general, they are not directed to any
specific case, and they impose no exclusion limiting the matters to be taken
into account by the Parole Board. A
subsidiary point is the suggestion that any implicit obligation on the Parole
Board to comply with a direction might be overridden by human rights
considerations. It is said that the
directions simply assist the Parole Board to give a structured approach to the
case before it. As to that, it may well
be that mandatory directions would be appropriate for cases where the Home
Secretary is seeking advice from the Board.
I have great difficulties in understanding how directions by the Home
Secretary as to matters to be taken into account can be appropriate where the
Board is performing a judicial function, especially when that function requires
the Board to resolve a dispute between the Home Secretary on the one hand and
the prisoner on the other. The
difficulties do not start with the convention—I shall turn to that later. They start with the fundamental common law
principles which underlie the rule of law, and what those principles say about
the role of a court. A party may of
course make submissions offering assistance to a ‘court’ as to how to give a
structured approach to the decision it has to make in that particular
case. The directions, as their name
implies, are in a different category altogether. Absent clear Parliamentary authority it is
simply inconsistent with the Home Secretary’s status as a party to judicial
proceedings that the Home Secretary should purport to direct the ‘court’ as to
the approach it should take. Turning to
the Home Secretary’s status as a member of the executive, elementary principles
as to the separation of powers come into play.
In the domestic context, they mean that unless Parliament plainly enacts
otherwise the executive has no business giving directions as to matters to be
taken into account in performing a judicial task. Accordingly, as it seems to me, before one
comes to examine independence for the purposes of art 5(4) there is a question
of domestic law as to whether the directions have Parliamentary authority. I shall return to this question shortly, and
in that context will also deal with the suggestion that an implicit obligation
to comply with the directions could be overridden by human rights
considerations.
[72] A fourth suggested answer was that the
directions could be likened to the CPR or to the rules which the Home Secretary
has made under s 32(5). The analogy with
the CPR breaks down, however, for those rules are not an act of the executive,
and less still are they an act of a party to litigation. They are delegated legislation. They are subject to the supervisory
safeguards which apply to delegated legislation. Given their subject matter, it is not
surprising to find that they are made by a body which is predominantly
judicial.
[73] As to the rules made under s 32(5), they
are not the subject of challenge in these proceedings. The distinction drawn by Miss Krause in reply
was that the rules did not go to the substance of the decision-making
power. I do not need to
35
consider the rules for the purposes of the present
case, and I express no view on whether the suggested distinction is sound.
[74] A fifth suggested answer observed that
nothing in any particular direction was suggested to be a compromise of
judicial independence of the Board, save for direction 7(b). That is true, in the sense that there is no
suggestion by Miss Krause that any other direction led the Board in this case
to do anything of which her client could complain. Moreover I have held that the terms of
direction 7(b), properly understood, do not involve any unlawfulness. This point, however, does not answer my
concerns about the common law principles underlying the rule of law. These principles are, it seems to me,
infringed if without clear Parliamentary authority the Home Secretary directs
the Parole Board as to the matters it should take into account.
[75] Finally there was the suggested answer
that the challenge proves too much. As
to that I need only say that if I were persuaded that the challenge is sound in
law then the claimant would be entitled to whatever remedy legally followed
from that conclusion, and I did not understand Mr Kovats to contend otherwise.
[76] I turn to the question of Parliamentary
authority for the directions. The
defendants say that this is to be found in s 32(6) of the 1991 Act. This subsection contains no express authority
to give directions as to matters to be taken into account where the Parole
Board is exercising functions of a judicial nature. It is true that it refers in general terms to
‘any functions’. These functions, however,
include cases where the Parole Board’s role is advisory rather than judicial
(see, for example, s 35 of the 1991 Act and s 30 of the 1997 Act). In these circumstances s 32(6) can be given
ample effect without encroaching upon the common law principles underlying the
rule of law by reading it as confined to those cases where the Board is not
exercising functions of a judicial nature.
[77] Might there be some other legitimate
interpretation of s 32(6) which would avoid encroaching on those
principles? In oral argument Mr Kovats
noted that s 32(6) contained no express obligation on the Parole Board to
comply with the directions, and suggested—without giving any greater
detail—that an implicit obligation to that effect could be overridden by human
rights considerations. The difficulties
which might arise in this regard were not explored in argument. An obvious difficulty in the present case is
that the directions of August 2004 use the language of obligation. In context it is plain that in s 32(6) the
word ‘directions’ means instructions that must be complied with. Such a meaning is sensible where the
directions concern advisory functions.
If human rights considerations were to have the effect suggested by Mr
Kovats, this would deprive the word ‘directions’ of that sensible meaning. Rather than produce such an unfortunate result
it seems to me preferable to interpret s 32(6) as confined to those cases where
the Board is not exercising functions of a judicial nature.
[78] In the present case I am concerned with
the Parole Board’s functions under s 28 of the 1997 Act. The test applicable to this case, as laid
down in that section, is that the Board must be satisfied under s 28(6)(b) that
it is no longer necessary for the protection of the public that the prisoner
should be confined. The matters that are
to be taken into account for that purpose will ordinarily depend upon the true
construction of s 28(6)(b). Questions of
statutory construction are pre-eminently judicial. The true construction of s 28(6)(b) is
something which the Parole Board in its judicial role must consider. Even more
36
fundamentally, the true construction of s 28(6)(b) is
something which must ultimately be determined by the courts. The relevant principles are so deep-rooted
that I have no doubt that s 32(6) of the 1991 Act should be read as inapplicable
to the Parole Board’s judicial functions, and in particular to its functions
under s 28 of the 1997 Act.
[79] What are the consequences of this
analysis? I have concluded that the
letter of April 1993 was right, and that the stance now taken on applicability
of s 32(6) by the defendants is wrong, for under our domestic law that
subsection does not empower the Home Secretary to give directions to the Parole
Board as to matters to be taken into account in the exercise of judicial
functions. However, this is not a case
where either of the defendants has acted in bad faith or in any other way
merited censure. The Parole Board has
made an error in thinking that the Home Secretary’s directions were legally
applicable to this case and to other cases where the Parole Board’s role is
judicial. In this particular case that
error has made no difference whatever to the course taken by the Parole Board:
as noted above, I have dismissed the complaint about direction 7(b), and the
claimant has accepted that he could not complain about the content of the
remaining directions. On the facts of
the present case the content of the directions has been innocuous. Indeed it is difficult to envisage a case
where the content of the directions would be anything other than innocuous:
they have plainly been drafted with great care, and so far as I can see they
accurately reflect appropriate legal principles. That being so, and putting on one side the
convention, I do not regard the error made by the Parole Board as vitiating the
decision of 8 October 2004.
[80] Is the result any different under the
convention? The Home Secretary has, as a
result of misunderstanding domestic law, erroneously issued directions
applicable to the Parole Board’s judicial functions under art 5(4). I must consider whether this has so
fundamentally deprived the Parole Board of independence as to vitiate the
decision of 8 October 2004. Here too I
regard it as important that the content of the directions in this case has been
innocuous, and that it is difficult to envisage a case where their content will
have been other than innocuous. On this
basis I do not consider that there has been a breach of art 5(4). It is true that there has been an inadvertent
trespass on the Parole Board’s independence, but this has led to no harmful
consequence. I consider that the
trespass has not been so substantial as to deprive the Parole Board when acting
under s 28 of the 1997 Act of its true character as a judicial body. Miss Krause reminded me that in Benjamin v
UK (2003) 13 BHRC 287 the European Court of Human Rights held that
there was a violation of art 5(4) where the power to release lay with the Home
Secretary, even though his practice was to follow the recommendation of the
mental health review tribunal. That was
a case where domestic law failed to comply with the convention in a fundamental
respect. The conclusion in Benjamin v
UK that administrative practice could not rescue such a defect in domestic
law is not in point in the present case.
Here my conclusion is that when properly understood domestic law
complies with the convention. I do not
read Benjamin v UK as requiring me to hold that an erroneous
administrative practice which has had no harmful effect has nevertheless
resulted in breach of art 5(4).
CONCLUSION
[81] The claimant fails in his application for
an order that the Parole Board reconsider its decision of 8 October 2004. There was no legal error in its approach
37
to medical evidence, nor in its approach to the lack
of a release plan. It was legally
erroneous for the Parole Board to think that the Home Secretary’s directions of
August 2004 applied to functions of a judicial nature, but this caused no
detriment to the claimant and does not vitiate the decision of 8 October 2004.
[82] It follows from my conclusions on issue
2(ii) that the claimant is incorrect in asserting that s 28 of the 1997 Act
(the gateway and timing provisions) contravenes the convention. The claim to declarations in that regard fails. Nor, having regard to all the circumstances,
do the Home Secretary’s directions of August 2004 give rise to a breach of art
5(4) of the convention. My conclusion as
to the true construction of s 32(6) of the 1991 Act means that the alternative
application for a declaration of incompatibility in that regard does not arise.
[83] I invited written submissions from
counsel as to whether any other declaration was appropriate and as to
consequential matters. The claimant
suggests that it would be appropriate to make a declaration as to the unlawfulness
of the directions of August 2004. As I
have concluded that the unlawfulness of the directions has not led to any
invalid decision in this case, I think it preferable to make the declaration
suggested by the defendants, which is that s 32(6) of the 1991 Act should be
construed so as not to apply to the judicial functions of the Parole
Board. As to costs, all parties agree
that there should be a detailed assessment of the claimant’s publicly-funded
costs. The claimant sought an order for
all or part of his costs to be paid by the defendants. However, I agree with the defendants that as
the claimant has failed on all points argued save one the appropriate course is
to make no order for payment by any party of any other party’s costs. Finally, all parties have sought permission
to appeal. In that regard, while aspects
of this case have involved important questions, I do not consider that the test
under CPR 52.3(6) is met. Accordingly I
decline to grant any party permission to appeal.
Orders accordingly.
Christian
Metcalfe Barrister.
38
[2006] 1 All ER 39
Roberts v Parole Board
[2005]
UKHL 45
CRIMINAL; Sentencing: HUMAN RIGHTS; Liberty: PRISONS
HOUSE OF LORDS
LORD
BINGHAM OF CORNHILL, LORD WOOLF, LORD STEYN, LORD RODGER OF EARLSFERRY AND LORD
CARSWELL
20,
21 APRIL, 7 JULY 2005
Prison – Release on licence – Life sentence –
Mandatory life sentence – Right to liberty and security – Secretary of State
putting information about prisoner before Parole Board but not disclosing
information to prisoner – Parole Board directing disclosure of information to
specially appointed advocate – Whether Parole Board acting ultra vires –
Whether breach of right to liberty and security – Criminal Justice Act 1991, s
32 – Human Rights Act 1998, Sch 1, Pt I, art 5(4).
The claimant was a prisoner sentenced to life
imprisonment. In the course of the
Parole Board review under the Criminal Justice Act 1991 of his eligibility for
release on licence the board decided that certain sensitive material, which had
been put before it by the Secretary of State for the Home Department, should be
withheld from the claimant and his solicitor and disclosed only to a specially
appointed advocate. The 1991 Act
contained provision, in s 32a, for rules to be made with respect to the
proceedings of the board, and for directions to be given to it as to the
matters to be taken into account by it in discharging its functions. The claimant applied for judicial review of
the board’s decision as ultra vires and in breach of art 5(4)b of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998) which guaranteed that everyone who was deprived of his liberty
by detention was entitled to take proceedings by which the lawfulness of his
detention was to be decided by a court.
His application was dismissed and his appeal to the Court of Appeal was
unsuccessful. He appealed to the House
of Lords. Before the House, as an issue
of principle only, was whether the board was able, within the powers granted by
the Criminal Justice Act 1991, and compatibly with art 5 of the convention, (a)
to withhold material relevant to a prisoner’s parole review from his legal
representatives and (b) instead, to disclose that material to a specially
appointed advocate who would represent the prisoner, in his absence, at a
closed hearing before the board.
________________________________________
a Section 32, so far as material, is set out at
[52], below
b Article 5, so far as material, provides: ‘(4)
Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful.’
________________________________________
Held – (1) (Per Lord Bingham of Cornhill, Lord
Woolf, Lord Rodger of Earlsferry and Lord Carswell) So far as art 5(4) of the
convention was concerned, the need to examine the facts as a whole, including
any appellate process, before coming to a decision, was critical. Whether, in principle, a full hearing of the
Parole Board involving a specially appointed advocate would meet the
requirements of art 5(4) could not be decided in advance (see [19], [77],
[112], [144], below).
39
(2) (Lord Bingham and Lord Steyn dissenting) Where
there should be, for public reasons which satisfied the board, non-disclosure
not only to the prisoner but also to his representatives, and the board
concluded that the nature of the proceedings and the extent of the
non-disclosure did not mean that the prisoner’s right to fair hearing would
necessarily be abrogated, the board had an implicit or an express power to give
directions as to withholding of information and, if it would assist the
prisoner, as to the use of a specially appointed advocate. Whether in a particular case withholding
material relevant to a prisoner’s parole review from his legal representatives
and instead disclosing it to a specially appointed advocate was permissible or
not could only be identified after examining all the circumstances. The appeal would therefore be dismissed (see
[48], [56], [65], [66], [72], [76], [83], [107], [109], [113], [129], [131],
[132], [144], [145], below).
Decision of the Court of Appeal [2004] 4 All ER 1136
affirmed.
Notes
For the constitution and functions of the Parole Board and
its power to release mandatory life prisoners, see 36(2) Halsbury’s Laws
(4th edn reissue) paras 618, 622, and for the right to liberty and security of
the person, see 8(2) Halsbury’s Laws (4th edn reissue) paras 127, 128.
For the Criminal Justice Act 1991, s 32, see 34 Halsbury’s
Statutes (4th edn) (2001 reissue) 805.
For the Human Rights Act 1998, Sch 1, Pt I, art 5,
see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 705.
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A-G v Great Eastern
Railway Co (1880) 5 App Cas 473, HL.
Al-Nashif v Bulgaria
(2002) 36 EHRR 655, [2002] ECHR 50963/99, ECt HR.
Bouamar v Belgium (1987)
11 EHRR 1, [1988] ECHR 9106/80, ECt HR.
Brandstetter v
Austria (1991) 15 EHRR 378, ECt HR.
Brown v Stott (Procurator
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Chahal v UK
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Coles v Odhams Press
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D (minors)
(adoption reports: confidentiality), Re [1995] 4 All
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Doody v Secretary of
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3 WLR 154, HL.
Doorson v Netherlands
(1996) 22 EHRR 330, [1996] ECHR 20524/92, ECt HR.
Edwards v UK
(2003) 15 BHRC 189, ECt HR.
Edwards v UK (1992)
15 EHRR 417, [1992] ECHR 13071/87, ECt HR.
Garcia Alva v Germany
(2001) 37 EHRR 335, [2001] ECHR 23541/94, ECt HR.
Hazell v Hammersmith
and Fulham London BC [1991] 1 All ER 545, [1992] 2 AC 1, [1991] 2 WLR 372,
HL.
Hussain v UK (1996)
22 EHRR 1, [1996] ECHR 21928/93, ECt HR.
Jasper v UK (2000)
30 EHRR 441, [2000] ECHR 27052/95, ECt HR.
Klass v Germany
(1978) 2 EHRR 214, [1978] ECHR 5029/71, ECt HR.
Kostovski v
Netherlands (1989) 12 EHRR 434, [1989] ECHR 11454/85, ECt HR.
Lamy v Belgium (1989)
11 EHRR 529, [1989] ECHR 10444/83, ECt HR.
Lucà v Italy (2001)
36 EHRR 807, [2001] ECHR 33354/96, ECt HR.
40
M v Secretary of
State for the Home Dept [2004] EWCA Civ 324, [2004] 2 All ER 863.
McCarthy & Stone (Developments)
Ltd v Richmond upon Thames London BC [1991] 4 All ER 897, [1992] 2 AC 48,
[1991] 3 WLR 941, HL.
Megyeri v Germany (1992)
15 EHRR 584, [1992] ECHR 13770/88, ECt HR.
Montgomery v HM
Advocate, Coulter v HM Advocate (2000) 9 BHRC 641, [2003] 1 AC 641, [2001]
2 WLR 779, PC.
Nikolova v Bulgaria (2001)
31 EHRR 64, [1999] ECHR 31195/96, ECt HR.
Official Solicitor v
K [1963] 3 All ER 191, sub nom Re K (infants) [1965]
AC 201, [1963] 3 WLR 408, HL; rvsg [1962] 3 All ER 1000, [1962] 3 WLR
1517, CA; rvsg [1962] 3 All ER 178, [1963] Ch 381, [1962] 3 WLR 752.
Pierson v Secretary
of State for the Home Dept [1997] 3 All ER 577, [1998] AC 539,
[1997] 3 WLR 492, HL.
R v A [2001] UKHL
25, [2001] 3 All ER 1, [2002] 1 AC 45, [2001] 2 WLR 1546.
R v Davis [1993]
2 All ER 643, [1993] 1 WLR 613, CA.
R v H, R v C
[2004] UKHL 3, [2004] 1 All ER 1269, [2004] 2 AC 134, [2004] 2 WLR 335.
R v Lichniak, R v
Pyrah [2002] UKHL 47, [2002] 4 All ER 1122, [2003] 1 AC 903, [2002] 3 WLR
1834.
R v Parole Board, ex
p Watson [1996] 2 All ER 641, [1996] 1 WLR 906, CA.
R v Parole Board, ex
p Wilson [1992] 2 All ER 576, [1992] QB 740, [1992] 2 WLR 707, CA.
R v Secretary of
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[1995] 1 WLR 734, DC.
R v Secretary of
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[1999] 3 WLR 328, HL.
R v Shayler [2002]
UKHL 11, [2002] 2 All ER 477, [2003] 1 AC 247, [2002] 2 WLR 754.
R (on the
application of D) v Camberwell Green Youth Court, R (on the
application of the Director of Public Prosecutions) v Camberwell Green
Youth Court [2005] UKHL 4, [2005] 1 All ER 999, [2005] 1 WLR 393.
R (on the
application of Girling) v Parole Board [2005] EWHC 5469 (Admin),
[2006] 1 All ER 11.
R (on the
application of S) v Waltham Forest Youth Court [2004] EWHC 715
(Admin), [2004] 2 Cr App R 335.
R (on the
application of Smith) v Parole Board, R (on the application of
West) v Parole Board [2005] UKHL 1, [2005] 1 All ER 755, [2005] 1
WLR 350.
Sanchez-Reisse v
Switzerland (1986) 9 EHRR 71, [1986] ECHR 9862/82, ECt HR.
Secretary of State
for the Home Dept v Rehman [2001] UKHL 47, [2002] 1 All ER 122, [2003] 1 AC
153, [2001] 3 WLR 877.
Sheffield v UK
(1998) 5 BHRC 83, ECt HR.
Sporrong v Sweden
(1982) 5 EHRR 35, [1982] ECHR 7151/75, ECt HR.
Stafford v UK
(2002) 13 BHRC 260, ECt HR.
Tinnelly & Sons
Ltd v UK (1998) 4 BHRC 393, ECt HR.
US v Rabinowitz (1950)
339 US 56, US SC.
Van Mechelen v
Netherlands (1997) 2 BHRC 486, ECt HR.
Waite v UK (2003)
36 EHRR 1001, [2002] ECHR 53236/99, ECt HR.
Weeks v UK (1987)
10 EHRR 293, [1987] ECHR 9787/82, ECt HR.
41
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A v Secretary of
State for the Home Dept, X v Secretary of State for the Home Dept [2004]
UKHL 56, [2005] 3 All ER 169, [2005] 2 AC 68, [2005] 2 WLR 87.
Adair, Re [2003]
NIQB 16.
Bremer Vulkan
Schiffbau Und Maschinenfabrik v South India Shipping Corp [1981] 1 All ER
289, [1981] AC 909, [1981] 2 WLR 141, HL.
Campbell (John)
v Jamaica (Communication No 307/1988) [1993] UNHRC 12.
Connelly v DPP
[1964] 2 All ER 401, [1964] AC 1254, [1964] 2 WLR 1145, HL.
Croissant v Germany
(1992) 16 EHRR 135, [1992] ECHR 13611/88, ECt HR.
De Haes v Belgium
(1997) 25 EHRR 1, [1997] ECHR 19983/92, ECt HR.
Dombo Beheer BV v
Netherlands (1993) 18 EHRR 213, ECt HR.
Fitt v UK (2000)
30 EHRR 480, [2000] ECHR 29777/96, ECt HR.
Goldberg v Kelly
(1970) 397 US 254, US SC.
Imbrioscia v
Switzerland (1993) 17 EHRR 441, [1993] ECHR 13972/88, ECt HR.
Karttunen v Finland
(Communication No 387/1989) [1992] UNHRC 41.
Kioa v West
(1985) 159 CLR 550; sub nom Kioa v Minister for Immigration and Ethnic
Affairs (1985) 62 ALR 321, Aust HC.
McClean, Re
[2004] NICA 14, [2005] NI 1.
Morael v France
(Communication No 207/1986) [1989] UNHRC 16.
Osman v UK (1998)
5 BHRC 293, ECt HR.
Perterer v Austria (Communication
No 1015/2001) [2004] UNHRC 36.
R v Davis, R v Rowe,
R v Johnson (2000) Times, 25 July.
R v G [2004] EWCA
Crim 1368, [2004] 1 WLR 2932.
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Take-overs and Mergers, ex p Guinness plc [1989] 1 All ER 509, [1990] 1 QB
146, [1989] 2 WLR 863, CA.
R v Parole Board, ex
p Davies (27 November 1996, unreported).
R v Secretary of
State for the Home Dept, ex p Leech [1993] 4 All ER 539, [1994] QB 198,
[1993] 3 WLR 1125, CA.
R v Sellick
[2005] EWCA Crim 651, [2005] All ER (D) 223 (Mar)
R v Smith (Joe)
[2001] 1 WLR 1031, CA.
R v St Edmundsbury
and Ipswich Diocese (Chancellor), ex p White [1947] 2 All ER
170, [1948] 1 KB 195, CA.
R (on the
application of A) v Lord Saville of Newdigate (Bloody Sunday
Inquiry) [2001] EWCA Civ 2048, [2002] 1 WLR 1249.
R (on the
application of Anderson) v Secretary of State for the Home Dept
[2002] UKHL 46, [2002] 4 All ER 1089, [2003] 1 AC 837, [2002] 3 WLR 1800.
R (on the
application of Brooks) v Parole Board [2004] EWCA Civ 80, [2004] All
ER (D) 142 (Feb).
R (on the
application of Daly) v Secretary of State for the Home Dept [2001]
UKHL 26, [2001] 3 All ER 433, [2001] 2 AC 532, [2001] 2 WLR 1622.
R (on the
application of Day) v Secretary of State for the Home Dept [2004]
EWHC 1742 (Admin), [2004] All ER (D) 274 (Jun).
R (on the
application of Giles) v Parole Board [2003] UKHL 42, [2003] 4 All ER
429, [2004] 1 AC 1, [2003] 3 WLR 736.
R (on the
application of McCann) v Crown Court at Manchester [2002] UKHL 39,
[2002] 4 All ER 593, [2003] 1 AC 787, [2002] 3 WLR 1313.
R (on the
application of Noorkoiv) v Secretary of State for the Home Dept
[2002] EWCA Civ 770, [2002] 4 All ER 515, [2002] 1 WLR 3284.
42
R (on the
application of Officer A) v HM Coroner for Inner South London [2004]
EWCA Civ 1439, [2004] All ER (D) 27 (Nov).
R (on the
application of Sim) v Parole Board [2003] EWCA Civ 1845, [2004] QB
1288, [2004] 2 WLR 1170.
R (on the
application of the DPP) v Havering Magistrates’ Court [2001] 3 All
ER 997, [2001] 1 WLR 805, DC.
R (on the
application of West) v Parole Board [2002] EWCA 1641, [2003] 1 WLR
705.
Rameka v New Zealand
(Communication No 1090/2002) [2003] UNHRC 62.
Rowe v UK (2000)
8 BHRC 325, ECt HR.
S (Minors)
(Care Order: Implementation of Care Plan), Re [2002]
UKHL 10, [2002] 2 All ER 192, [2002] 2 AC 291, [2002] 2 WLR 720.
Taylor v Lawrence
[2002] EWCA Civ 90, [2002] 2 All ER 353, [2003] QB 528, [2002] 3 WLR 640.
Appeal
The claimant, Harry Maurice Roberts, a prisoner serving
mandatory sentences of life imprisonment, appealed with permission of the House
of Lords Appeal Committee given on 16 November 2004 from the decision of the
Court of Appeal (Tuckey, Clarke LJJ and Jackson J) on 28 July 2004 ([2004] EWCA
Civ 1031, [2004] 4 All ER 1136) dismissing his appeal from the decision of
Maurice Kay J on 19 December 2003 ([2003] EWHC 3120 (Admin), [2004] 2 All ER
776) dismissing his claim for judicial review of the decisions of the Parole
Board contained in a letter dated 13 June 2003 directing that certain material
relating to the board’s review provided to the board by the Secretary of State
for the Home Department should not be disclosed to the appellant or his legal
representatives but only to a specially appointed advocate. The Secretary of State appeared as an
interested party. Justice appeared as
intervener. The facts are set out in the
opinions of Lord Bingham of Cornhill and Lord Carswell.
Tim Owen QC and
Alison McDonald (instructed by Bhatt Murphy) for the appellant.
Michael Fordham
(instructed by the Treasury Solicitor) for the Parole Board.
James Eadie and
Kate Gallafent (instructed by the Treasury Solicitor) for the
Secretary of State.
Keir Starmer QC
and Eric Metcalfe (instructed by Justice) for Justice.
Their Lordships took time for consideration.
7 July 2005.
The following opinions were delivered.
LORD BINGHAM OF CORNHILL.
[1] My Lords, on 12 December 1966 the
appellant, Mr Harry Roberts, was convicted on three counts of murder, having
pleaded guilty to two counts and been convicted of the third. The victims in each case were police
officers, killed in cold blood at Shepherd’s Bush in August 1966 when, in the
course of their duty, they stopped a car in which the appellant and two
accomplices were travelling to commit an armed robbery. The trial judge rightly described these
crimes, which aroused widespread public outrage, as heinous and suggested that
the case was one in which the appellant might never be released. He formally recommended that the appellant
serve a term of at least 30 years, and in due course the Home Secretary of the
day fixed 30 years as the appellant’s punitive or tariff term. That
43
term expired in 1996, when the appellant was aged
60. The fifth review of his case by the
Parole Board, still current, began in September 2001, and this appeal concerns
the procedure to be followed in that review.
The issue to be determined by the House is agreed to be whether the
Parole Board, a statutory tribunal of limited jurisdiction, is able, within the
powers granted by the Criminal Justice Act 1991, and compatibly with art 5 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (a) to
withhold material relevant to the appellant’s parole review from the
appellant’s legal representatives and (b) instead, to disclose that material to
a specially appointed advocate, who would represent the appellant, in the
absence of the appellant and his legal representatives, at a closed hearing
before the Parole Board.
[2] Since the House is called upon to decide
issues of statutory construction and legal principle, the detailed facts of the
appellant’s case are of minor importance.
In 2000, pursuant to a recommendation of the Parole Board in December
1999, the appellant was transferred to an open prison where he was held when
the current Parole Board review began in September 2001. On 1 October 2001 a parole dossier was
disclosed to the appellant’s solicitors containing a number of reports, all
favourable to the appellant and recommending his immediate release on life
licence. However, on 2 October 2001 the
appellant was removed from open to closed conditions, where he has since
remained. The appellant has received a
general indication of the allegations against him which led to his removal, but
these have not been the subject of any criminal or disciplinary charge, they
have not been investigated at any adversarial hearing and they have been
consistently challenged by the appellant.
[3] On 11 February 2002 the Secretary of State
for the Home Department, who appears in this appeal as an interested party,
disclosed to the appellant further material that had been submitted by him to
the Parole Board for purposes of the parole review. The material related to alleged breaches of
trust committed by the appellant while held in open conditions. The appellant was notified on 22 April 2002
that further material was to be withheld from both him and his legal
representatives, but would be submitted to the Parole Board (henceforward ‘the
board’) for its consideration. It is the
treatment of this further material, conveniently described as ‘the sensitive
material’, which gives rise to this appeal.
The ground upon which the sensitive material has been withheld is that
the safety of the source of the information or evidence would be at risk if the
material were to be disclosed. It has
not been suggested that there is in this case any threat to national security.
[4] In August 2002 the appellant applied for
judicial review of the Secretary of State’s decision to withhold from the
appellant and his legal representatives material which would be considered by
the board. These proceedings were
compromised in October 2002 when it was, in effect, agreed that issues of
disclosure should be resolved by the board and the possible appointment of a
specially appointed advocate was envisaged.
[5] On 15 November 2002 Scott Baker LJ, as
vice-chairman of the board, decided that before a decision was made on the
procedure to be adopted in respect of the sensitive material at the substantive
hearing before the board, that material should in the first instance be
disclosed to a specially appointed advocate agreeable to both parties, who
could then make representations on the disclosure issues. The sensitive material was not to be
disclosed to the appellant or his legal
44
representatives or anyone else without the consent of
the board. Scott Baker LJ proposed that
a hearing should then take place to resolve the disclosure issues. He acknowledged that the procedure for
appointing special advocates was statutory in other fields but he could see no
reason why it should not be used in the present circumstances.
[6] With the agreement of the appellant and
the Secretary of State, the Attorney General appointed Mr Nicholas Blake QC to
act as ‘independent counsel’, in effect as a special advocate. In an advice written for the board before
seeing the sensitive material Mr Blake advised that resort to the special
advocate procedure infringed ordinary standards of fairness. After seeing the sensitive material he
submitted to the board that it be disclosed to the appellant’s solicitor.
[7] On 9 May 2003 a hearing took place before
Sir Richard Tucker as chairman of the board’s mandatory lifer panel. The appellant and the Secretary of State were
represented, and Mr Blake attended. The
hearing consisted of an open session when the appellant’s solicitor made
representations on his behalf, and a closed session when submissions were made
about the sensitive material by the Secretary of State’s counsel and Mr Blake,
in the absence of the appellant and his solicitor. A decision was made by Sir Richard the same
day, but complaints about the conduct of the hearing led to a further hearing
attended by counsel for the appellant and the Secretary of State on 30 May
2003. In a detailed letter dated 13 June
2003 the board communicated its decision, which was that the sensitive material
should not be disclosed to the appellant or his legal representatives, but should
be disclosed to the specially appointed advocate. The board directed that there should be a
two-stage hearing, one considering the open material and the other the
sensitive material, the specially appointed advocate appearing at both stages.
[8] The judicial review proceedings giving
rise to this appeal were initiated to challenge this decision of 13 June. It was agreed that the judge (Maurice Kay J)
should read the sensitive material and hear submissions on it in closed session
by counsel for the board and the Secretary of State, and by Mr Blake. There was again a two-stage hearing, one
addressed by counsel for the appellant and the other, in the absence of the
appellant and his counsel, directed to the sensitive material. The judge delivered two judgments on 19
December 2003. In the first, open,
judgment he upheld the lawfulness of the proposed procedure and dismissed the
appellant’s application (see [2003] EWHC 3120 (Admin), [2004] 2 All ER 776). The second was a closed judgment, not
disclosed to the appellant or his legal representatives, but disclosed to Mr
Blake who advised the appellant that there was no basis for challenging the
findings in the closed judgment on appeal.
[9] The appellant challenged the lawfulness of
the proposed procedure in principle on appeal to the Court of Appeal. It was agreed between the parties that this
challenge did not call for disclosure of the sensitive material to the Court of
Appeal, and that material was not placed before the court. For reasons given by Tuckey LJ, with which
Clarke LJ and Jackson J agreed, the Court of Appeal dismissed the appellant’s
appeal (see [2004] EWCA Civ 1031, [2004] 4 All ER 1136, [2005] QB 410).
[10] The House had the benefit of submissions
on behalf of the appellant, the board and the Secretary of State, and also on
behalf of JUSTICE which was granted leave to intervene. It received no submissions by Mr Blake or any
45
specially appointed advocate, and did not read or
receive submissions on the sensitive material.
[11] As a mandatory life sentence prisoner who
has served the punitive or tariff term imposed upon him, the appellant has two
important rights: a right to be released if and when it is judged that he can
safely be released without significant risk to the safety of the public; and a
right ‘to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful’. The first of these rights is a
product of domestic law, which now provides for the imposition of a punitive or
tariff term of imprisonment on convicted murderers, on completion of which (as
is now accepted by the board and the Secretary of State: see R (on
the application of Girling) v Parole Board [2005] EWHC 5469 (Admin)
at [19], [2006] 1 All ER 11 at [19]) risk to life and limb provides the sole
ground for continued detention (see R v Lichniak, R v Pyrah [2002] UKHL
47 at [8], [29], [2002] 4 All ER 1122 at [8], [29], [2003] 1 AC 903). The second right derives from art 5(4) of the
convention, which I have quoted above and to which domestic law seeks to give
effect. Thus a tariff-expired mandatory
life sentence prisoner such as the appellant has a right to bring proceedings
to challenge the lawfulness of his continued detention and a right to be
released, no matter what the enormity of the crime or crimes for which he was
imprisoned, if he is judged to present no continuing threat to the safety of
the public.
[12] Whether or not it is safe to release a
prisoner such as the appellant cannot be ascertained with scientific
accuracy. It calls for an exercise of
informed and experienced judgment. Under
our domestic law, that judgment is entrusted to the board, which has authority
under s 28(5) of the Crime (Sentences) Act 1997 as amended to direct the
release of a tariff-expired mandatory life sentence prisoner, but may not do so
unless (s 28(6)(b)) it is ‘satisfied that it is no longer necessary for the
protection of the public that the prisoner should be confined’.
[13] The board is not in any ordinary sense a
court. But it is accepted as being a
court for purposes of art 5(4) because, and so long as, it has the essential
attributes of a court in performing the function of directing release and other
functions not in issue in this appeal.
Thus it is independent of the Secretary of State, and the Prison Service
and the prisoner (see Weeks v UK (1987) 10 EHRR 293 at 316 (para
62)). It is impartial, in the sense that
it decides cases on the material before it without any prejudice or predilection
against or for any party. In cases such
as the appellant’s oral hearings are now routinely held. The board is obliged to act in a manner that
is procedurally fair (Weeks v UK (1987) 10 EHRR 293 at 315–316 (para
61)), as it is when resolving challenges to revocation of parole licences (see
R (on the application of Smith) v Parole Board, R (on the
application of West) v Parole Board [2005] UKHL 1 at [1], [2005] 1
All ER 755 at [1], [2005] 1 WLR 350). In
contrast with the position which obtained in the past (Weeks v UK (1987)
10 EHRR 293 at 317 (para 64)), the board now has the power to direct the
release of a tariff-expired mandatory life sentence prisoner and not merely to
advise or make a recommendation to the Secretary of State.
[14] It was submitted on behalf of the board
(in an argument adopted and elaborated by the Secretary of State) that the
requirement of procedural fairness under art 5(4) does not impose a uniform,
unvarying standard to be applied irrespective of the context, facts and circumstances. This is undoubtedly so. Lord Mustill so held, in an opinion with
which the other members of the House agreed, in Doody v Secretary of State
for the Home Dept [1993] 3 All ER 92 at 106, [1994]
46
1 AC 531 at 560.
The House referred to this passage with approval in R (on the
application of Smith) v Parole Board, R (on the application of
West) v Parole Board [2005] 1 All ER 755 at [27], [2005] 1 WLR
350. The European Court of Human Rights
has ruled to similar effect in cases such as Bouamar v Belgium (1987) 11
EHRR 1 at 19 (para 60) and Chahal v UK (1996) 1 BHRC 405 at 432 (para
127). The board also submitted, again
correctly, that decision-making procedures may, so long as they are fair, be
adapted to take account of interests other than those of the defendant,
prisoner or applicant. This proposition
too is vouched by compelling authority.
Thus in R v Parole Board, ex p Watson [1996] 2 All ER 641 at 650,
[1996] 1 WLR 906 at 916–919, the Court of Appeal recognised the paramount duty
of the board to protect innocent members of the public against any significant
risk of serious injury, while also recognising the hardship and injustice of
continuing to imprison a person who is unlikely to cause serious injury to the
public. In Brown v Stott (Procurator
Fiscal, Dunfermline) [2001] 2 All ER 97 at 115, 118–119, [2003] 1 AC
681 at 704, 707–708, the Privy Council emphasised the need for balance between
the rights of the individual and the wider rights of the community, a point
repeated in the House in R v A [2001] UKHL 25 at [91], [94], [99],
[2001] 3 All ER 1 at [91], [94], [99], [2002] 1 AC 45. In R v H, R v C [2004] UKHL 3 at [23],
[2004] 1 All ER 1269 at [23], [2004] 2 AC 134, the House acknowledged the need
to reconcile an individual defendant’s right to a fair trial with such secrecy
as is necessary in a democratic society in the interests of national security
or the prevention or investigation of crime.
In Doorson v Netherlands (1996) 22 EHRR 330 at 358 (para 70), and
again in Van Mechelen v Netherlands (1997) 2 BHRC 486 at 503 (para 53),
the European Court has recognised the life, liberty and security of witnesses
as an interest to be taken into consideration.
In Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393 at 417 (para
76) the court was mindful of national security considerations. In Jasper v UK (2000) 30 EHRR 441 at
471 (para 52) it was held that national security and the need to protect
witnesses at risk of reprisals must be weighed against the rights of the
accused. Thus convention rights are to
be applied not in a vacuum but in the world as, for better or worse, it is.
[15] In making a decision on the release of a
tariff-expired mandatory life sentence prisoner such as the appellant, the
board is not determining a criminal charge (see R (on the application
of Smith) v Parole Board, R (on the application of West) v
Parole Board [2005] 1 All ER 755 at [38]–[41], [56], [76], [90], [91],
[2005] 1 WLR 350 at [38]–[41], [56], [76], [90], [91]). The criminal limb of art 6(1) of the
convention is not engaged. It follows
that the board is not bound to follow the procedure which would be required in
a criminal trial. But, as was said in
R (on the application of Smith) v Parole Board, R (on the
application of West) v Parole Board at [35]:
‘The prisoner should
have the benefit of a procedure which fairly reflects, on the facts of his
particular case, the importance of what is at stake for him, as for society.’
What is at stake in this instance is, on the one hand, the
safety and security, perhaps the life, of a witness, and, on the other, the
real possibility that the appellant may remain in prison until he dies. In this case, as in R v H, R v C
[2004] 1 All ER 1269 at [33], [2004] 2 AC 134:
‘The overriding
requirement is that the guiding principles should be respected and observed …
the touchstone is to ascertain what justice requires in the circumstances of
the particular case.’
47
[16] The ordinary principle governing the
conduct of judicial inquiries in this country is not, in my opinion, open to
doubt. In Official Solicitor v K [1962]
3 All ER 1000 at 1008–1009, sub nom Re K (infants) [1962]
Ch 381 at 405–406, Upjohn LJ expressed it thus:
‘It seems to be
fundamental to any judicial inquiry that a parent or other properly interested
party must have the right to see all the information put before the judge, to
comment on it, to challenge it, and if needs be to combat it, and to try to
establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in
part. If it is so withheld and yet the
judge takes such information into account in reaching his conclusion without
disclosure to those parties who are properly and naturally vitally concerned,
the proceedings cannot be described as judicial.’
On appeal to the House in the same case, Lord Devlin
referred ([1963] 3 All ER 191 at 208, [1965] AC 201 at 237) to ‘the fundamental
principle of justice that the judge should not look at material that the
parties before him have not seen’, and ([1963] 3 All ER 191 at 208, [1965] AC
201 at 238), referring to ‘the ordinary principles of a judicial inquiry’, he
continued:
‘They include the rules
that all justice shall be done openly and that it shall be done only after a
fair hearing; and also the rule that is in point here, namely, that judgment
shall be given only on evidence that is made known to all parties. Some of these principles are so fundamental
that they must be observed by everyone who is acting judicially, whether he is
sitting in a court of law or not; and these are called the principles of
natural justice. The rule in point here
is undoubtedly one of those.’
Lord Mustill, with the agreement of all other members of
the House, spoke in similar vein in Re D (minors) (adoption
reports: confidentiality) [1995] 4 All ER 385 at 388, [1996]
AC 593 at 603–604, when he described it as—
‘a first principle of
fairness that each party to a judicial process shall have an opportunity to
answer by evidence and argument any adverse material which the tribunal may
take into account when forming its opinion.
This principle is lame if the party does not know the substance of what
is said against him (or her), for what he does not know he cannot answer.’
Later in the same opinion ([1995] 4 All ER 385 at 399,
[1996] AC 593 at 615) he said:
‘It is a fundamental
principle of fairness that a party is entitled to the disclosure of all
materials which may be taken into account by the court when reaching a decision
adverse to that party.’
This principle has been upheld in such domestic cases as
R v Parole Board, ex p Wilson [1992] 2 All ER 576 at 584, [1992] QB 740 at
751, per Taylor LJ (disclosure of reports to the board), whose reasoning was
adopted by the House in Doody v Secretary of State for the Home Dept [1993]
3 All ER 92 at 108, [1994] 1 AC 531 at 562, and R v Secretary of
State for the Home Dept, ex p Hickey (No 2) [1995] 1 All ER 490 at
501, [1995] 1 WLR 734 at 746 (disclosure of evidence elicited by the Secretary
of State following a conviction), where Simon Brown LJ said: ‘The guiding principle should always be that
sufficient disclosure should be given to enable the petitioner properly to
present his best case.’ In dismissing a
challenge to special
48
measures directions for the protection of juvenile
witnesses in R (on the application of D) v Camberwell Green
Youth Court, R (on the application of the DPP) v Camberwell Green
Youth Court [2005] UKHL 4, [2005] 1 All ER 999, [2005] 1 WLR 393, the House
attached importance to the fact that the defendant was able to challenge and
cross-examine the witnesses and that the evidence was produced at trial in the
presence of the accused, who could see and hear it all: see the opinion of
Baroness Hale of Richmond (at [49]), with which all members of the House
agreed.
[17] The European Court of Human Rights has
affirmed the importance of this principle in criminal cases governed by art
6(1) of the convention, holding that as a general rule all evidence must be
produced in the presence of the accused at a public hearing with a view to
adversarial argument, giving him an adequate and proper opportunity to
challenge and question witnesses against him (see, for example, Lamy v
Belgium (1989) 11 EHRR 529 at 538–539 (para 29); Kostovski v Netherlands
(1989) 12 EHRR 434 at 447–448 (para 41); Brandstetter v Austria (1991)
15 EHRR 378 at 413 (paras 66–67); Edwards v UK (1992) 15 EHRR 417 at
431–432 (para 36); Van Mechelen v Netherlands (1997) 2 BHRC 486 at 502
(para 51); Lucà v Italy (2001) 36 EHRR 807 at 815 (para 39); Garcia
Alva v Germany (2001) 37 EHRR 335 at 352 (para 39)). In non-criminal art 5(4) cases the approach
of the court has been similar, generally requiring disclosure of adverse
material and an adversarial procedure of a judicial character in which the
person affected has the effective assistance of his lawyer and has the
opportunity to call and question witnesses (see, for example, Sanchez-Reisse
v Switzerland (1986) 9 EHRR 71 at 83–84 (para 51); Bouamar v Belgium (1987)
11 EHRR 1 at 18–19 (para 60); Weeks v UK (1987) 10 EHRR 293 at 317–318 (para
66); Megyeri v Germany (1992) 15 EHRR 584 at 593 (para 23); Hussain v
UK (1996) 22 EHRR 1 at 26 (paras 58–60); Al-Nashif v Bulgaria (2002)
36 EHRR 655 at 677–679 (paras 90–98)).
It is quite true, as the board insisted in argument, that the court accepted
that these rights were not absolute or incapable of valid qualification. But in Tinnelly & Sons Ltd v UK
(1998) 4 BHRC 393 at 415 (para 72), the court pointed out that any limitations
must not ‘restrict or reduce the access [to the court] left to the individual
in such a way or to such an extent that the very essence of the right is
impaired’.
[18] It is in my opinion plain that the
procedure which the board propose to adopt in resolving the appellant’s parole
review will infringe the principles discussed in the foregoing paragraphs. The board will receive and be free to act on
material adverse to the appellant which will not, even in an anonymised or
summarised form, be made available to him or his legal representatives. Both he and his legal representatives will be
excluded from the hearing when such evidence is given or adduced, denying him
and them the opportunity to participate in the hearing, by questioning any
witness or challenging any evidence called or adduced to vouch the sensitive
material, or by giving or calling evidence to contradict that material, or by
addressing argument. The appellant and
his legal representatives are free to instruct the specially appointed advocate
(whose integrity and skill are not in question) so long as none of them knows
anything of the case made against the appellant on the basis of the sensitive
material, but the specially appointed advocate is forbidden to communicate with
the appellant or his legal representatives once he knows the nature of the case
against the appellant based on the sensitive material. It is only at that stage that meaningful
instructions can be given, unless the appellant has successfully predicted the
nature of the case in advance, in which case he may well have
49
identified the source and undermined the need for
secrecy. The Parole Board assert that
the specially appointed advocate may call witnesses, and in the absence of any
warrant or authority to adopt the specially appointed advocate procedure that
may be so. This was not, however, the
understanding of the House of Commons Constitutional Affairs Committee (see
The operation of the Special Immigration Appeals Commission (SIAC)
and the use of Special Advocates: Seventh Report of the Session 2004–2005
(HC paper 323-I), p 22 (para 52(iii)).
But even if a specially appointed advocate is free to call witnesses, it
is hard to see how he can know who to call or what to ask if he cannot take
instructions from the appellant or divulge any of the sensitive material to the
witness. In M v Secretary of State
for the Home Dept [2004] EWCA Civ 324 at [13], [2004] 2 All ER 863 at [13],
the Court of Appeal acknowledged that a person appealing to the SIAC, in much
the same position as the appellant would be under the proposed procedure, was
‘undoubtedly under a grave disadvantage’ and, at [16], that ‘[t]o be detained
without being charged or tried or even knowing the evidence against you is a
grave intrusion on an individual’s rights’.
In its decision letter challenged in these proceedings the board
realistically accepted that as compared with the appellant’s solicitor a
specially appointed advocate would be at a ‘serious disadvantage’ and that
adoption of the special advocate procedure would result in prejudice to the
appellant. I regard these observations
as amply justified. In the vivid
language used by Lord Hewart CJ in a very different context in Coles v
Odhams Press Ltd [1936] 1 KB 416 at 426, [1935] All ER Rep 598 at 601, the
specially appointed advocate would inevitably be ‘taking blind shots at a
hidden target’.
[19] In view of what the European Court in
Garcia Alva v Germany (2001) 37 EHRR 335 at 352 (para 39), called ‘the
dramatic impact of deprivation of liberty on the fundamental rights of the
person concerned’, I would doubt whether a decision of the board adverse to the
appellant, based on evidence not disclosed even in outline to him or his legal
representatives, which neither he nor they had heard and which neither he nor
they had had any opportunity to challenge or rebut, could be held to meet the
fundamental duty of procedural fairness required by art 5(4). ‘It is of crucial importance that the
Convention is interpreted and applied in a manner which renders its rights
practical and effective, not theoretical and illusory’ (see Stafford v UK
(2002) 13 BHRC 260 at 277 (para 68)). If
the procedure proposed is fully adopted, the appellant’s rights under art 5(4)
could be all but valueless. The
Secretary of State might have to make the difficult choice between not
disclosing information to the board and ensuring effective protection of its
source. But I would decline the
appellant’s invitation to rule, at this stage, that the adoption of the
proposed procedure is necessarily incompatible with art 5(4). The practice of the European Court is to
consider the proceedings in question as a whole, including the decisions of
appellate courts (see Edwards v UK (1992) 15 EHRR 417 at 431 (para
34)). Thus its judgment is almost
necessarily made in retrospect, when there is evidence of what actually
happened. This reflects the acute
sensitivity of the court to the facts of a given case. Save where an issue of compatibility turns on
a pure question of statutory construction, the House should in my opinion be
similarly reluctant to rule without knowing what has actually happened. This seems to me important because there are
some outcomes which would not in my opinion offend art 5(4) despite the
employment of a specially appointed advocate.
It might, for instance, be that the board, having heard the sensitive
material tested by the specially appointed advocate, wholly rejected it. Or having heard the material tested in
50
that way the board might decline to continue the
review unless the sensitive material, or at least the substance of it, were
disclosed at least to the appellant’s legal representatives, relying on the
court’s observation in Doorson v Netherlands (1996) 22 EHRR 330 at 359
(para 74), that ‘the Convention does not preclude identification—for the
purposes of Article 6(3)(d)—of an accused with his Counsel’. Or the board might, with the assistance of
the specially appointed advocate, devise a way of anonymising, redacting or
summarising the sensitive material so as to enable it to be disclosed to the
appellant or his legal representatives.
Or the board might, in a manner that was procedurally fair, reach a
decision without relying at all on the sensitive material. If any of these possibilities were to eventuate,
I do not think there would be a violation of art 5(4).
[20] That conclusion makes it necessary to
consider the other major question debated in argument, whether the board has
power to adopt this procedure. The board
was first established by s 59 of the Criminal Justice Act 1967, and was
continued in existence by s 32 of the Criminal Justice Act 1991, which was in
force when the appellant’s current parole review began. Section 32, so far as material and as
amended, provided:
‘(1) The Parole Board
shall be, by that name, a body corporate and as such shall—(a) be constituted
in accordance with this Part; and (b) have the functions conferred … by Chapter
II of Part II of the Crime (Sentences) Act 1997 (“Chapter II”) in respect of
life prisoners within the meaning of that Chapter …
(4) The Board shall deal
with cases as respects which it gives directions under … Chapter II on
consideration of all such evidence as may be adduced before it.
(5) Without prejudice to
[subsection] (4) above, the Secretary of State may make rules with respect to
the proceedings of the Board, including provision authorising cases to be dealt
with by a prescribed number of its members or requiring cases to be dealt with
at prescribed times.
(6) The Secretary of
State may also give to the Board directions as to the matters to be taken into
account by it in discharging any functions under … Chapter II; and in giving any such directions the
Secretary of State shall in particular have regard to—(a) the need to protect
the public from serious harm from offenders; and (b) the desirability of
preventing the commission by them of further offences and of securing their
rehabilitation.
(7) Schedule 5 to this
Act shall have effect with respect to the Board.’
Chapter II of the Crime (Sentences) Act 1997 includes s
28, sub-s (5) of which now obliges the Secretary of State to release a
tariff-expired mandatory life sentence prisoner whose release the board has
directed, thus engaging s 32(4) above.
Schedule 5 to the 1991 Act provided in para 1(2)(b), under the heading
‘Status and capacity’:
‘It shall be within the
capacity of the Board as a statutory corporation to do such things and enter
into such transactions as are incidental to or conducive to the discharge of …
(b) its functions under Chapter II of Part II of the Crime (Sentences) Act 1997
in respect of life prisoners within the meaning of that Chapter.’
51
Section 32 of and Sch 5 to the 1991 Act were repealed and
replaced by s 239 of and Sch 19 to the Criminal Justice Act 2003, but it was
not suggested in argument that this change had any bearing on the issue to be
decided by the House.
[21] The House was referred to Parole Board
Rules made by the Secretary of State under s 32(5) of the 1991 Act in 1992,
1997 and 2004. The 1992 and 1997 rules
were in very much the same terms, although the 1997 rules applied to wider
classes of life sentence prisoners, and neither applied to mandatory life
sentence prisoners until s 28 of the 1997 Act was amended by s 275 of the
Criminal Justice Act 2003, which came into force on 18 December 2003. Common to the 1992 and 1997 rules was a
requirement in r 5(1) to serve relevant information and reports on the prisoner
or his representative. But this
requirement was qualified by paras (2) and (3):
‘(2) Any part of the
information or reports referred to in paragraph (1) which, in the opinion of
the Secretary of State, should be withheld from the prisoner on the ground that
its disclosure would adversely affect the health or welfare of the prisoner or
others, shall be recorded in a separate document and served only on the Board
together with the reasons for believing that its disclosure would have that
effect.
(3) Where a document is
withheld from the prisoner in accordance with paragraph (2), it shall
nevertheless be served as soon as practicable on the prisoner’s representative
if he is—(a) a barrister or solicitor, (b) a registered medical practitioner,
or (c) a person whom the chairman of the panel directs is suitable by virtue of
his experience or professional qualification; provided that no information
disclosed in accordance with this paragraph shall be disclosed either directly
or indirectly to the prisoner or to any other person without the authority of
the chairman of the panel.’
A right to be represented (subject to certain exclusions)
was provided in r 6, and a right for the prisoner to call witnesses and adduce
evidence, subject to certain procedural conditions, by rr 7 and 8. The chairman of the panel had power to give
directions (r 9), among them a direction (r 9(1)(d))—
‘as regards any
documents which have been received by the Board but which have been withheld
from the prisoner in accordance with rule 5(2), whether the disclosure of such
documents would adversely affect the health or welfare of the prisoner or
others …’
There was to be an oral hearing of the prisoner’s case
unless otherwise agreed (r 10) and the hearing was to be at the prison or other
institution where the prisoner was detained (r 12(1)). It was provided in r 13(2) that:
‘Subject to this rule,
the panel shall conduct the hearing in such manner as it considers most
suitable to the clarification of the issues before it and generally to the just
handling of the proceedings …’
This paragraph was subject to para (3) which provided:
‘The parties shall be
entitled to appear and be heard at the hearing and take such part in the
proceedings as the panel thinks proper; and the parties may hear each others’
evidence, put questions to each other, call any witnesses who the Board has
authorised to give evidence in accordance with
52
rule 7, and put
questions to any witness or other person appearing before the panel.’
Rule 15(2) provided:
‘The decision by which
the panel determines a case shall be recorded in writing with reasons, signed
by the chairman of the panel, and communicated in writing to the parties not
more than seven days after the end of the hearing.’
[22] The 2004 rules come into force on 1
August 2004, and are accepted by the appellant as applying to his case, which
was referred to the board again by the Secretary of State on 21 February
2005. In these rules certain changes
were made. Rule 6(2) and (3) reproduces
r 5(2) and (3) of the 1992 and 1997 rules, but with some expansion and
qualification:
‘(2) Any part of the
information or reports referred to in paragraph (1) which, in the opinion of
the Secretary of State, should be withheld from the prisoner on the grounds
that its disclosure would adversely affect national security, the prevention of
disorder or crime or the health or welfare of the prisoner or others (such
withholding being a necessary and proportionate measure in all the
circumstances of the case), shall be recorded in a separate document and served
only on the Board together with the reasons for believing that its disclosure
would have that effect.
(3) Where a document is
withheld from the prisoner in accordance with paragraph (2), it shall, unless
the chair of the panel directs otherwise, nevertheless be served as soon as
practicable on the prisoner’s representative if he is—(a) a barrister or
solicitor, (b) a registered medical practitioner, or (c) a person whom the
chair of the panel directs is suitable by virtue of his experience or
professional qualification; provided that no information disclosed in
accordance with this paragraph shall be disclosed either directly or indirectly
to the prisoner or to any other person without the consent/authority of the
chair of the panel.’
Rule 8, which in part reproduces r 9 of the earlier rules
in relation to the giving of directions, provides in sub-s (2)(d) that a
direction may be given:
‘as regards any
documents which have been received by the Board but which have been withheld
from the prisoner in accordance with rule 6(2), whether withholding such
documents is a necessary and proportionate measure in all the circumstances of
the case.’
The prisoner must give notice whether he wishes to attend
the hearing (r 14(3)). Rule 15 entitles
him to call witnesses if he obtains leave to do so. Rule 18(1) provides:
‘The hearing shall be
held at the prison or other institution where the prisoner is detained, or such
other place as the chair of the panel, with the agreement of the Secretary of
State, may direct.’
Rule 19(2) and (3) reproduce r 13(2) and (3) of the
earlier rules. Rule 19(6) is new and
provides:
‘The chair of the panel
may require the prisoner, any witness appearing for the prisoner, or any other
person present, to leave the hearing where
53
evidence is being
examined which the chair of the panel, in accordance with rule 8(2)(d) (subject
to any successful appeal under rule 8(2)), previously directed should be
withheld from the prisoner as adversely affecting national security, the
prevention of disorder or crime or the health or welfare of the prisoner or
others.’
Rule 20, relating to the panel’s decision provides:
‘The panel’s decision
determining a case shall be recorded in writing with reasons, signed by the
chair of the panel, and provided in writing to the parties not more than 7 days
after the end of the hearing; the recorded decision with reasons shall only
make reference to matters which the Secretary of State has referred to the
Board.’
[23] A statutory tribunal has such powers as
its parent statute confers upon it, whether expressly or impliedly, and no
more. Where the power is express, no
difficulty should arise. For purposes of
implication, the test propounded by Lord Selborne LC in A-G v Great Eastern
Railway Co (1880) 5 App Cas 473 at 478, has been treated as generally
applicable, whether to companies, local authorities or statutory
corporations. He agreed with James LJ
that—
‘this doctrine [of ultra
vires] ought to be reasonably, and not unreasonably, understood and applied,
and that whatever may fairly be regarded as incidental to, or consequential
upon, those things which the Legislature has authorized, ought not (unless
expressly prohibited) to be held, by judicial construction, to be ultra
vires.’
Section 111 of the Local Government Act 1972 empowers
local authorities to do anything which is calculated to facilitate, or is
conducive or incidental to, the discharge of any of their functions. Paragraph 1(2) of Sch 5 to the 1991 Act, as
already noted, empowers the board to do such things and enter into such
transactions as are incidental or conducive to the discharge of its statutory
functions.
[24] There is nothing in the 1991 Act or the
2003 Act which expressly authorises the board to hold an oral hearing to review
a tariff-expired mandatory life sentence prisoner’s application for parole in a
manner that does not accord with the well-known principles of natural
justice. There is in particular nothing
in either Act which expressly authorises the board to make a decision adverse
to a prisoner without disclosure to the prisoner of the case against him, so
that he may answer it if he can; to deny him the benefit of an adversarial
hearing; to provide for the exclusion of himself or his legal representative
from the hearing; or to adopt a specially appointed advocate procedure. The board and the Secretary of State did not
argue otherwise. Rules made by the
Secretary of State under s 32(5) cannot enlarge the powers conferred by the
1991 Act. This is trite law, and Mr Owen
was right to concentrate his argument on lack of power in the Act and not on
the effect of the rules. But in any
event, the 1992 and 1997 rules do not begin to authorise the steps listed
above; nor do the 2004 rules purport to authorise them, despite some steps in
that direction. If, therefore, the
taking of those steps are to be justified as within the powers of the board it
must be because they are incidental or conducive to the discharge of the
board’s functions. The board and the
Secretary of State contended that power to take such steps is indeed incidental
and conducive to the discharge of the board’s functions, pointing to the
54
undoubted importance of the board’s functions in
protecting the public against the risk of injury or death and protecting
witnesses against the risk of retaliation.
[25] There are in my opinion two reasons, each
of them independently conclusive, why this argument cannot be accepted. The first depends on the presumption that
Parliament does not intend to interfere with the exercise of fundamental
rights. It will be understood to do so only
if it does so expressly. In Pierson v
Secretary of State for the Home Dept [1997] 3 All ER 577 at 591, [1998]
AC 539 at 574 Lord Browne-Wilkinson said:
‘Where wide powers of
decision-making are conferred by statute, it is presumed that Parliament
implicitly requires the decision to be made in accordance with the rules of
natural justice: Bennion on Statutory Interpretation, p 737. However widely the power is expressed in the
statute, it does not authorise that power to be exercised otherwise than in
accordance with fair procedures.’
Lord Steyn spoke to similar effect (see [1997] 3 All ER
577 at 603–606, [1998] AC 539 at 587–590). In R v Secretary of State for the Home
Dept, ex p Simms [1999] 3 All ER 400 at 412, [2000] 2 AC 115 at 131, Lord
Hoffmann expressed the point very clearly:
‘Parliamentary
sovereignty means that Parliament can, if it chooses, legislate contrary to
fundamental principles of human rights.
The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by
Parliament are ultimately political, not legal.
But the principle of legality means that Parliament must squarely
confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by
general or ambiguous words. This is
because there is too great a risk that the full implications of their unqualified
meaning may have passed unnoticed in the democratic process. In the absence of express language or
necessary implication to the contrary, the courts therefore presume that even
the most general words were intended to be subject to the basic rights of the
individual. In this way the courts of
the United Kingdom, though acknowledging the sovereignty of Parliament, apply
principles of constitutionality little different from those which exist in
countries where the power of the legislature is expressly limited by a
constitutional document.’
For reasons given above, the course proposed and so far
adopted in the conduct of the appellant’s parole review involves a substantial
departure from the standards of procedural fairness which would ordinarily be
observed in conducting a review of this kind.
It would in my opinion violate the principle of legality, strongly
relied on in argument by Mr Owen, and undermine the rule of law itself, if such
a departure were to be justified as incidental or conducive to the discharge of
the board’s functions.
[26] My second reason for rejecting the
implication argument is based on the historical record, which demonstrates that
the presumption to which I have referred is not a lawyer’s fiction but a
practical reality. The procedure
formerly adopted for handling deportation challenges raising sensitive
questions of national security was finally condemned by the European Court in
Chahal v UK (1996) 1 BHRC 405. In
para 131 of its judgment in that case (at 433) the court referred with approval
to a form of judicial control obtaining in Canada,
55
apparently somewhat analogous to the special advocate
procedure (although the court has suspended judgment on the conformity of that
procedure with the convention (see Al-Nashif v Bulgaria (2002) 36 EHRR
655 at 678 (para 97)). Parliament acted
on this indication. In response to the
judgment the Special Immigration Appeals Commission Act 1997 was enacted to
establish the Commission (the SIAC).
That Act conferred power on the Lord Chancellor to make rules (s 5(1))
and gave express power in s 5(3) to make rules which would:
‘(a) make provision
enabling proceedings before the Commission to take place without the appellant
being given full particulars of the reasons for the decision which is the
subject of the appeal, (b) make provision enabling the Commission to hold
proceedings in the absence of any person, including the appellant and any legal
representative appointed by him, (c) make provision about the functions in
proceedings before the Commission of persons appointed under section 6 below,
and (d) make provision enabling the Commission to give the appellant a summary
of any evidence taken in his absence.’
Such rules were to be made by statutory instrument (s
5(8)) of which a draft was to be laid before and approved by resolution of each
House. Seeking the House of Lords’
approval of the first rules made under the Act, the Lord Chancellor
acknowledged that the SIAC’s procedures departed from what would ordinarily be
required to satisfy natural justice (see 592 HL Official Report (5th Series)
col 1587, 29 July 1998). Section 6 of
the Act provided for the appointment of special advocates (not so described),
who would not be responsible to the person whose interests they were appointed
to represent. The Special Immigration
Appeals Commission (Procedure) Rules 2003, SI 2003/1034 (the SIAC rules), now
in force, lay down detailed provisions governing the withholding of material
from the applicant and his legal representative (eg rr 10(3), 16(3), 37), the
appointment and role of special advocates (rr 34–36), the holding of hearings
in the absence of the appellant and his legal representative (r 43),
qualification of the appellant’s right to cross-examine opposing witnesses (r
44(5)) and a qualification of the SIAC’s duty to give reasons for its decision
(r 47). Thus whatever the merits of
these procedures (which have caused concern to the House of Commons
Constitutional Affairs Committee and a number of special advocates, as
evidenced by the report referred to at [18], above, but on which the House is
not required to rule in this appeal), it seems clear that they have been
authorised by primary legislation and by rules approved in Parliament. Reliance has not been placed on implication
to warrant so significant a departure from ordinary standards of procedural
fairness.
[27] Schedule 3 to the Terrorism Act 2000,
governing the Proscribed Organisations Appeal Commission, contained provisions
very similar to those already noted in the Special Immigration Appeals
Commission Act 1997, including (in para 7) provision for special advocates, and
was followed by the Proscribed Organisations Appeal Commission (Procedure)
Rules 2001, SI 2001/443 (the proscribed organisations rules) similar in effect
to the SIAC rules already mentioned. The
Race Relations (Amendment) Act 2000, inserted a section directed to national
security into the Race Relations Act 1976, and contained express statutory
authority to make rules which would exclude a claimant and his representatives
from the hearing and for the appointment of a special advocate who would not be
responsible to the person whose interests he
56
was appointed to represent. Schedule 6 to the Anti-terrorism, Crime and
Security Act 2001, governing the Pathogens Access Appeal Commission, was very
closely modelled on that pertaining to proscribed organisations in Sch 3 to the
Terrorism Act 2000, containing almost identical provisions. The Pathogens Access Appeal Commission
(Procedure) Rules 2002, SI 2002/1845 were closely modelled on the proscribed
organisations rules. Section 80 of the
Planning and Compulsory Purchase Act 2004 made special provision for the
appointment of a person to represent the interests of any person who would be
prevented from hearing or inspecting any evidence at a local inquiry on grounds
of national security. Rules made under
the section to regulate this procedure were to be contained in a statutory
instrument subject to annulment in pursuance of a resolution of either
House. The Schedule to the Prevention of
Terrorism Act 2005 contains detailed provisions governing the making of
procedural rules, varying the ordinary rules of procedural fairness, in the
context of control orders. Such rules
are required to be laid before Parliament and are to cease to have effect if
not approved by a resolution of each House within 40 days of the making of the
rules. The Civil Procedure (Amendment No
2) Rules 2005, SI 2005/656, made on 11 March 2005, contain detailed provisions
governing the exclusion of a party and his legal representative from the
hearing and the appointment of special advocates.
[28] Reference was made in argument to four
instances in which there had been a departure from the ordinary rules of
procedural fairness in Northern Ireland: (1) The Northern Ireland (Sentences)
Act 1998 provided for prisoners serving sentences for scheduled offences to
apply to Sentence Review Commissioners for early release if they were able to
meet certain statutory conditions. By
Sch 2 to the Act the Secretary of State was empowered to make rules which
might, among other things, provide for the withholding of evidence about a
prisoner, the holding of hearings in the absence of the prisoner and his legal
representative and the appointment of a person to represent the prisoner when
he and his representative were excluded.
Schedule 2 came into force on 28 July 1998 and on 30 July the Secretary
of State, acting under the authority of Sch 2, made the Northern Ireland
(Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998, SI 1998/1859,
which contained more detailed provisions to the same effect. Information could be withheld from the
prisoner and his representative as a safeguard against dangers which included
not only threats to national security but also adverse effects on the health,
welfare or safety of any person. (2)
Section 85(1) of the Northern Ireland Act 1998 empowered Her Majesty by Order
in Council to make provision dealing with a number of reserved matters listed
in Sch 3, one of which (para 9(e)) was the treatment of offenders. It was a broad power, extending to the
amending or repealing of any provision made by or under any Act of Parliament
or Northern Ireland legislation (s 85(1)(c)).
But no recommendation might be made to Her Majesty to make an Order in
Council under the section unless a draft of the Order had been laid before and
approved by resolution of each House of Parliament (s 85(3)). In exercise of this power, by the Life Sentences
(Northern Ireland) Order 2001, SI 2001/2564 (the 2001 Order) Her Majesty in
Council made provision for the appointment of Life Sentence Review
Commissioners to deal with tariff and release decisions. Schedule 2 to the 2001 Order empowered the
Secretary of State to make procedural rules, subject to annulment by resolution
of either House. Such rules might
provide for the withholding of evidence from a prisoner (para 3(e)), the
conduct of proceedings in the absence of the prisoner and his legal
57
representative (para 6(1)) and the appointment of a
person to represent the interests of the prisoner when he and his
representative were excluded (para 6(2)).
Pursuant to Sch 2, the Secretary of State made the Life Sentence Review
Commissioners’ Rules 2001, SR 2001/317, which provided in r 10(8) for
conducting parts of the hearing in the absence of the prisoner and his legal
representative, in r 15(2) for the withholding from the prisoner and his legal
representative of any information certified by the Secretary of State to be
confidential, as defined, and in r 16(2) for the appointment of a special
advocate to represent the interests of the prisoner. (3) The Northern Ireland (Remission of
Sentences) Act 1995 came into force on 17 November 1995 (Northern Ireland
(Remission of Sentences) Act 1995 (Commencement) Order 1995, SI 1995/2945) and
was significantly amended by the Terrorism Act 2000. Section 1(3) of the 1995 Act empowered the
Secretary of State to revoke the licence of a person released from prison in
specified circumstances—
‘if it appears to him
that the person’s continued liberty would present a risk to the safety of
others or that he is likely to commit further offences; and a person whose licence is revoked shall
be detained in pursuance of his sentence and, if at large, be deemed to be
unlawfully at large.’
A person whose licence was revoked was entitled under
s 1(4) to make representa-tions in writing to the Secretary of State about the
revocation and to be informed as soon as practicable of the reasons for the
revocation and of his right to make rep-resentations. There was no provision in the statute
enabling the person whose licence had been revoked to seek a review of the
lawfulness of his detention by any independent court or tribunal, and s 1(3)
and (4) was plainly incompatible with art 5(4) of the convention (see for
example Waite v UK (2003) 36 EHRR 1001).
This decision was made on 10 December 2002. On 14 January 2003 the Secretary of State for
Northern Ireland issued a ‘Written Statement’ in which he stated:
‘I have put in place
additional safeguards for persons, whose licences are revoked. These include the appointment of independent
Commissioners, who hold or have held judicial office, to consider and advise me
upon any representations made by recalled prisoners. I will also make available funds to meet the
reasonable legal expenses of prisoners in connection with making such
representations whether in writing or at any oral hearing the Commissioners may
decide is necessary. Further details of
the procedures and how they will operate will be placed in the libraries of
both Houses.’
Annexed to this document was a note listing the additional
safeguards the Secretary of State would apply.
This provided that the Commissioner would decide the procedure for
dealing with any representations, subject to paras 5 and 6 which read:
‘5. Where the Secretary
of State certifies any information as “damaging information” (as defined in
Rule 22(1) of the Northern Ireland (Sentences) Act 1998 (Sentence Review
Commissioners) Rules 1998), the Commissioner shall not in any circumstances
disclose it to the prisoner, his legal representative or any other person
except any special advocate appointed by the Attorney General to safeguard the
interests of the prisoner. A special
advocate shall not disclose the damaging information to anyone.
58
6. The prisoner, his
legal representative and any witness appearing for him shall be excluded from
any oral hearing whilst evidence is being examined or argument is being heard
relating to “damaging information”.’
These paragraphs were supplemented by paras 7–9:
‘7. A special advocate
may communicate with the prisoner he has been appointed to represent at any
time before the Secretary of State makes “damaging information” available to
him.
8. At any time after the
Secretary of State has made “damaging information” available to him, a special
advocate may seek direction from the Commissioner authorising him to seek
information in connection with the proceedings from the prisoner.
9. Where information has
been certified as “damaging information” the Secretary of State shall, within
such period as the Commissioner may determine, give to the Commissioner and to
the prisoner a paper setting out the gist of the damaging information insofar
as he considers it possible to do so without causing damages of the kind
referred to in Rule 22(1) of the 1998 Rules.’
(4) Section 24(1)(c) of the Northern Ireland Act 1998
provided that a minister or department of the Northern Ireland government
should have no power to do anything which discriminated against a person or
class of person on the ground of religious belief or political opinion. Section 76 of the Act, applying to public
authorities, was to similar effect, although expressly conferring a right of
action. Where a person claimed to be a
victim of discrimination in contravention of s 24 or s 76, it was open to the
person against whom the claim was made to propose to rely (s 90(1)(b) of the
Act) on a certificate purporting to be signed by or on behalf of the Secretary
of State certifying—
‘(i) that an act
specified in the certificate was done for the purpose of safeguarding national
security or protecting public safety or public order; and (ii) that the doing
of the act was justified by that purpose.’
A claimant might appeal against the certificate to a
tribunal established under s 91, in accordance with rules made by the Lord
Chancellor (s 90(2)), which might uphold or quash the certificate (s
90(3)). Section 91(1) established the
tribunal and s 91(2)–(6) governed the Lord Chancellor’s rule-making power. It was specifically enacted that rules might
provide for the withholding of information from the claimant, for the conduct
of proceedings in the absence of the claimant and his legal representative and
for regulating the functions of persons who might be appointed to represent the
interests of the claimant when he and his legal representative were excluded
(sub-ss 4(a), 4(b) and 4(c)). Power to
appoint such persons was conferred on the Attorney General for Northern Ireland
by sub-s (7). In exercise of his
rule-making power, the Lord Chancellor made the Northern Ireland Act Tribunal
(Procedure) Rules 1999, SI 1999/2131, which were laid before and approved by
resolution of each House as required by s 96(6) of the 1998 Act. These rules made provision for the
appointment of special advocates (r 9), the withholding of information from the
claimant (rr 10 and 11), the exclusion of the claimant and his legal
representative from the hearing (r 18) and the issue of incomplete reasons (r
22).
[29] The first, second and fourth of these
Northern Irish instances are consistent with the legislative practice adopted
in Great Britain, as briefly
59
summarised in [26] and [27], above. The third instance is different, and the
Parole Board placed strong reliance on it.
But the Northern Ireland (Remission of Sentences) Act 1995 provided for
revocation decisions to be made by the executive, without any provision for
judicial review of the revocation decision or any provision for an adversarial
hearing. It was blatantly incompatible
with the convention, and the safeguards introduced by the Secretary of State
were an attempt to rescue it. By
providing for the possibility of oral hearings and for special advocates the
Secretary of State effected an improvement on the procedure which had hitherto
prevailed. But it would in my opinion be
very dangerous to draw any inference from a procedure devised to meet an
emergency, in the absence (unlike all the other examples considered) of any
express statutory authority or rule-making power, the lawfulness of which may
well be open to question (although, in the absence of argument, I express no
opinion on the point).
[30] The examples considered above show
plainly that Parliament in practice observes the principle of legality. If it intends that a tribunal shall have
power to depart from the ordinary rules of procedural fairness, it legislates
to confer such power in clear and express terms and it requires that
subordinate legislation regulating such departures should be the subject of
Parliamentary control. It follows this
practice even when the security of the nation is potentially at stake. Reference to Hansard shows that measures of
this kind have repeatedly been the subject of anxious and detailed debate. It is in my opinion contrary to legal
principle and good democratic practice to read such a power into a statute
which contains no hint whatever that Parliament intended or even contemplated
such a departure. Had it done so, as in
the other cases considered, the departure would have been carefully defined and
controlled. It is nothing to the point
to argue that if damaging adverse evidence is withheld from a prisoner and his
legal representative he is better off with the limited help given by a
specially appointed advocate than without it, unless there is lawful authority
to conduct the hearing while withholding such evidence from the prisoner, which
in the present context there is not.
[31] The board and the Secretary of State gain
no support for the contrary proposition from three cases cited in argument: Secretary
of State for the Home Dept v Rehman [2001] UKHL 47, [2002] 1 All ER 122,
[2003] 1 AC 153; R v Shayler [2002] UKHL 11, [2002] 2 All ER 477, [2003]
1 AC 247; and R v H, R v C [2004] 1 All ER 1269, [2004] 2 AC 134. In the first of these cases, an appeal from
the SIAC, in which a special advocate had appeared, the Court of Appeal
received written submissions from a special advocate (see [2002] 1 All ER 122
at [31]–[32]). It was clearly within the
inherent power of the court to do so to make the appeal effective. There could scarcely have been a meaningful
appeal had the Court of Appeal not been able to put itself in the same position
as the SIAC. In the second, the House
contemplated use of a special advocate if a former member of a security service
were to seek judicial review of a refusal of permission to publish. This also would be within the inherent power
of the court if the object of the proceedings was not to be frustrated, and the
context under consideration was far removed from one in which a tariff-expired
mandatory life sentence prisoner faces the prospect of lifelong incarceration
for reasons not communicated to him or his legal representative. In the third of the cases the House held that
a special advocate might, exceptionally, be appointed in a criminal case to
help resolve an issue whether a trial could be fairly conducted if material,
favourable to the
60
defendant, were not disclosed to him. It was not suggested or contemplated that any
part of the prosecution case against the defendant could be properly withheld
from the defendant and his legal representative, a consideration which
distinguishes that case from the present.
[32] In my opinion the procedural course proposed
in the board’s decision letter of 13 June 2003 was one it had no power to
adopt. I would accordingly allow the
appeal and quash that decision.
LORD WOOLF.
BACKGROUND
[33] My Lords, I have found it especially
helpful in this case to have had the opportunity to read the speeches of my
noble and learned friends in draft.
[34] The issue which we are required to
determine is identified in the agreed statement of facts and issues in these
terms:
‘Whether the Parole
Board, a statutory tribunal of limited jurisdiction, is able, within the powers
granted by the Criminal Justice Act 1991, and compatibly with article 5 of the
European Convention on Human Rights (“the Convention”): (a) to withhold
material relevant to [the appellant’s] parole review from [his legal
representatives] and (b) instead, to disclose that material to a specially
appointed advocate (“SAA”), who will represent [the appellant], in [his]
absence, at a closed hearing before the Board.’
[35] That issue is one of principle and not
confined to the facts of this case; it was so treated before the Court of
Appeal ([2004] EWCA Civ 1031, [2004] 4 All ER 1136, [2005] QB 410) (as para 18
of the agreed statement of facts and issues records) and it has been so argued
before us. It is therefore not necessary
for me to refer to the facts of this case and I do not purport to do so. I am content to adopt the summaries which are
set out in the speeches of my noble and learned friends Lord Bingham of
Cornhill and Lord Carswell. However, the
fact that we are dealing with the issue as a matter of principle means that our
decision has wide implications for how the board performs its functions and its
ability to perform its statutory role.
That statutory role is one which is already of considerable significance
within the criminal justice system, a significance which will be increased
because of the new sentences of life imprisonment, detention for life and
detention for public protection in relation to serious offences created by Ch 5
of the Criminal Justice Act 2003. In
addition it means that while I am able to set out my views on the issues of
principle I am unable to say what effect those views will have on the
appellant’s rights. This will probably
only be able to be determined during or after the hearing on the facts by the
board, as to the merits, on whether the appellant should be released on
licence.
[36] In order to perform its role, to which I
will refer later, the board is dependent upon the information with which it is
provided. It has no power to compel
witnesses to attend its hearings but it can invoke the assistance of the High
Court for this purpose. However, this
residual power of compulsion does not assist in those cases where it is
desirable that it receives the information, but the information will only be
provided if it can be made available to the board in circumstances in which its
sources can be confident that their identity will be protected from disclosure.
61
[37] That the board should be able to perform
its functions effectively is particularly important in the case of those who
are sentenced to life imprisonment, whether the sentence of life imprisonment
is discretionary or mandatory. In these
cases, a period is now identified by the sentencing judge which is the minimum
period to be served by way of punishment and deterrence. The sentencing judge does not need to
consider the question of future risk to the public because this is dealt with
by the Parole Board when the question of the release of the prisoner on licence
comes to be considered after the prisoner has served the minimum term. At the time the appellant was sentenced in
September 1966 the position was very different because, although at that time
the Secretary of State would take into account the views of the Chief Justice
and the trial judge as to the period to be served as a punishment and by way of
deterrence, the sentence was still regarded as actually one of life
imprisonment and release on licence was a matter of discretion for the
Secretary of State alone.
[38] In the very different situation that
exists today, it is desirable for the question of risk to be considered by the
Parole Board rather than the sentencing judge.
The board should be in a position to know all the relevant information
about the progress that the prisoner has made during his sentence. In addition, in some situations, the risk
that will exist could relate to circumstances that did not exist at the time of
sentence. However, both from the point
of view of the prisoner and from that of the public, whom the board is intended
to protect, it is critical that the board, whenever possible, is aware of any
relevant information before it reaches its decision to release a prisoner on
licence.
[39] If this appeal is allowed this could
affect the ability of the board to perform its functions in future. In addition, the decision could affect the
powers of other administrative bodies that determine issues that impact upon
the rights of the individual, at least where those administrative bodies are
subject to procedural rules made under statute.
I draw attention to this aspect of this appeal since it justifies my
reiterating well-established basic principles of administrative law.
[40] The principles have been set out in many
cases of high authority, with greater elegance, but I would summarise them as
follows: (i) An administrative body is required to act fairly when reaching a
decision which could adversely affect those who are the subject of the
decision. (ii) This requirement of
fairness is not fixed and its content depends upon all the circumstances and,
in particular, the nature of the decision which the body is required to
make. (iii) The obligation of fairness
to which I refer can be confined by legislation and, in particular, by rules of
procedure, provided that the language used makes its effect clear and, in the
case of the secondary legislation, it does not contravene the provisions of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 (as set out in Sch 1 to the Human Rights Act 1998) (in the context of the
present appeal, this means art 5(4) as it is accepted art 6 has no
application).
[41] A case which considers these principles
in the context of a criminal trial, where the responsibility rests not upon an
administrative body but a court, is R v H, R v C [2004] UKHL 3, [2004] 1
All ER 1269, [2004] 2 AC 134. In that
case, the defendants had been charged with others with conspiracy to supply a
Class A drug. At a preparatory hearing
the Crown sought a ruling as to whether material could be withheld from
disclosure to the defence on the ground of public interest immunity (PII). The judge ruled that the hearing should not
be conducted in open court in the presence of the defendants and that a special
independent advocate (SAA) should be appointed to introduce an adversarial
element into the
62
hearing. This
was done to avoid a violation of art 6 of the convention. It was decided that the appointment of a
special counsel to represent a defendant as an advocate on such an application
might, in an exceptional case, be necessary in the interests of justice, but
such an appointment should not be ordered unless and until the trial judge is
satisfied that no other course would adequately meet the overriding requirement
of fairness to the defendant. My noble
and learned friend Lord Bingham in giving the opinion of the committee made the
following important statements of principle which are of relevance to the
different context in which the board operates:
‘[11] Fairness is a
constantly evolving concept … it is important to recognise that standards and
perceptions of fairness may change, not only from one century to another but
also, sometimes, from one decade to another.
[12] … The European
Court has repeatedly recognised that individual rights should not be treated as
if enjoyed in a vacuum: Sporrong v Sweden (1983) 5 EHRR 35 at 52 (para
69); Sheffield v UK (1998) 5 BHRC 83 at 94 (para 52). As Lord Hope of Craighead pointed out in
Montgomery v HM Advocate, Coulter v HM Advocate (2000) 9 BHRC 641 at 671,
[2003] 1 AC 641 at 673:
‘the rule of law lies at
the heart of the convention. It is not
the purpose of art 6 to make it impracticable to bring those who are accused of
crime to justice. The approach which the
Strasbourg Court has taken to the question whether there are sufficient
safeguards recognises this fact.’
[13] The institutions
and procedures established to ensure that a criminal trial is fair vary almost
infinitely from one jurisdiction to another, the product, no doubt of
historical, cultural and legal tradition …
[18] Circumstances may
arise in which material held by the prosecution and tending to undermine the
prosecution or assist the defence cannot be disclosed to the defence, fully or
even at all, without the risk of serious prejudice to an important public
interest. The public interest most
regularly engaged is that in the effective investigation and prosecution of
serious crime, which may involve resort to informers and undercover agents, or
the use of scientific or operational techniques (such as surveillance) which
cannot be disclosed without exposing individuals to the risk of personal injury
or jeopardising the success of future operations. In such circumstances some derogation from
the golden rule of full disclosure may be justified but such derogation must
always be the minimum derogation necessary to protect the public interest in
question and must never imperil the overall fairness of the trial …
[22] There is as yet
little express sanction in domestic legislation or domestic legal authority for
the appointment of a special advocate or special counsel to represent, as an
advocate in PII matters, a defendant in an ordinary criminal trial, as distinct
from proceedings of the kind just considered.
But novelty is not of itself an objection, and cases will arise in which
the appointment of an approved advocate as special counsel is necessary, in the
interests of justice, to secure protection of a criminal defendant’s right to a
fair trial. Such an appointment does
however raise ethical problems … Defendants facing serious charges frequently
have little
63
inclination to
co-operate in a process likely to culminate in their conviction, and any new
procedure can offer opportunities capable of exploitation to obstruct and
delay. None of these problems should
deter the court from appointing special counsel where the interests of justice
are shown to require it. But the need
must be shown. Such an appointment will
always be exceptional, never automatic; a course of last and never first
resort. It should not be ordered unless
and until the trial judge is satisfied that no other course will adequately
meet the overriding requirement of fairness to the defendant …
[23] The problem of
reconciling an individual defendant’s right to a fair trial with such secrecy
as is necessary in a democratic society in the interests of national security
or the prevention or investigation of crime is inevitably difficult to resolve
in a liberal society governed by the rule of law. It is not surprising that complaints of
violation have been made against member states including the United Kingdom,
some of which have exposed flaws in or malfunctioning of our domestic
procedures. The European Court of Human
Rights has however long accepted that some operations must be conducted
secretly if they are to be conducted effectively (see Klass v Germany (1978)
2 EHRR 214 at 232 (para 48) …
[32] The appellants
contended that, taken at its narrowest, the principle established by [Edwards
v UK (2003) 15 BHRC 189] is that it is incompatible with art 6 for a judge
to rule on a claim to PII in the absence of adversarial argument on behalf of
the accused where the material which the prosecution is seeking to withhold is,
or may be, relevant to a disputed issue of fact which the judge has to decide
in order to rule on an application which will effectively determine the outcome
of the proceedings. It was argued that
the [Edwards v UK] principle applies wherever the defence rely on
entrapment to stay the proceedings or exclude evidence, but does not apply to
entrapment only and is not confined to determinative rulings. It was however acknowledged that there is no
absolute rule which requires the appointment of special counsel in any
particular kind of case.
[33] These submissions,
in our opinion, seek to place the trial judge in a straitjacket. The consistent practice of the court, in this
and other fields, has been to declare principles, and apply those principles on
a case-by-case basis according to the particular facts of the case before it,
but to avoid laying down rigid or inflexible rules. There is no doubt as to the principles to be
applied—the more important have been identified in earlier paragraphs of this
opinion—and there is no dissonance between the principles of domestic law and
those recognised in the convention jurisprudence. It is entirely contrary to the trend of
Strasbourg decision-making to hold that in a certain class of case or when a
certain kind of decision has to be made a prescribed procedure must always be
followed. The overriding requirement is
that the guiding principles should be respected and observed, in the infinitely
diverse situations with which trial judges have to deal, in all of which the
touchstone is to ascertain what justice requires in the circumstances of the
particular case.’
[42] The position of a person who is being
considered for release on licence, as I have indicated, is not identical to
that of a defendant in a criminal trial which was being considered in R v H. However, these statements could be even more
apposite in the case of the board. I
have already indicated that art 6 does not apply
64
to the board’s role.
Furthermore, although the decision of the board is of the greatest
importance to a prisoner, the prisoner has inevitably already been found or
pleaded guilty, and in the case of a prisoner sentenced to life imprisonment,
the offence would have been a grave crime.
Furthermore, any decision to find an offender guilty is a once and for
all decision, but in the case of a decision of the board, the decision can
always be changed with the passage of time.
Finally, the task of the court is to determine the guilt or innocence of
a defendant, while the task of the board is to determine whether it is safe for
the prisoner to be released.
[43] Based on Lord Bingham’s approach it can
therefore be accepted when determining the outcome of the issue that fairness
is a ‘constantly evolving concept’.
Provision has to be made when it is necessary for derogation from the
golden rule of full disclosure but the derogation must be the minimum necessary
to protect the public interest. When
there has to be derogation there can be cases in which the appointment of an
SAA is, in the interests of justice, advantageous. The European Court of Human Rights (ECtHR)
has accepted that some operations ‘must be conducted secretly if they are to be
conducted effectively’. Finally, there is
the fact that the trial judge should not be placed in a straitjacket. Instead the decision sets out principles and
indicates those principles should be applied on a case by case basis: ‘in the
infinitely diverse situations with which trial judges have to deal … the
touchstone is to ascertain what justice requires in the circumstances of the
particular case.’ These points are all
highly relevant to the determination of the issue.
[44] The other point to which it is worth
drawing attention from the different context of the criminal trial is that the
evolving practice of the criminal courts with regard to non-disclosure because
of PII, was, as in the case of the board, until relatively recently, not dealt
with specifically in legislation or the subject of rules. It arose out of the decisions of courts. It was not dependent on the inherent
jurisdiction of the courts. Instead it
existed because it is a characteristic of courts (shared by tribunals) whether
created by statute or by common law that they are masters of their own
procedure subject to any limitation imposed by legislation. For courts, there is now a legislative
framework. This is provided by the Crown
Court (Criminal Procedure and Investigations Act 1996 (Disclosure)) Rules 1997,
SI 1997/698 (L4) which came into force in April 1997. There is also a legislative framework for the
board.
THE BOARD’S STATUTORY FRAMEWORK
[45] The changed statutory context in which
the board now decides the date on which a life sentence prisoner is released is
provided by the Crime (Sentences) Act 1997 (the 1997 Act). The 1997 Act provides the regime under which
both mandatory and discretionary prisoners are released. Section 28 contains the duty to release. It provides, so far as relevant:
‘(1A) This section
applies to a life prisoner in respect of whom a minimum term order has been
made; and any reference in this section to the relevant part of such a
prisoner’s sentence is a reference to the part of the sentence specified in the
order.
(5) As soon as—(a) a
life prisoner to whom this section applies has served the relevant part of his
sentence; and (b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
65
(6) The Parole Board
shall not give a direction under subsection (5) above with respect to a life
prisoner to whom this section applies unless—(a) the Secretary of State has
referred the prisoner’s case to the Board; and (b) the Board is satisfied that
it is no longer necessary for the protection of the public that the prisoner
should be confined.
(7) A life prisoner to
whom this section applies may require the Secretary of State to refer his case
to the Parole Board at any time—(a) after he has served the relevant part of
his sentence; and (b) where there has been a previous reference of his case to
the Board, after the end of the period of two years beginning with the disposal
of that reference; and (c) where he is also serving a sentence of imprisonment
or detention for a term, after he has served one-half of that sentence …’
[46] Section 28(6) sets out clearly the nature
of the board’s ‘responsibility’. In
exercising that responsibility, the board is required to make a practical
judgment—
‘balancing the hardship
and injustice of continuing to imprison a man who is unlikely to cause serious
injury to the public [if this is the case] against the need to protect the
public … In other than a clear case this is bound to be a difficult and very
anxious judgment. But in the final
balance the board is bound to give preponderant weight to the need to protect innocent
members of the public against any significant risk of serious injury.’ (See R v Parole Board, ex p Watson
[1996] 2 All ER 641 at 650, [1996] 1 WLR 906 at 916–917, per Sir Thomas Bingham
MR.)
Obviously, as emphasised in R (on the
application of Smith) v Parole Board, R (on the application of
West) v Parole Board [2005] UKHL 1 at [35], [2005] 1 All ER 755 at
[35], [2005] 1 WLR 350, the prisoner should, therefore, ‘have the benefit of a
procedure which fairly reflects, on the facts of his particular case, the
importance of what is at stake for him, as for society’.
[47] This is particularly important because so
far as the board is concerned, the position is clear: a prisoner can only be
released on licence if the board is satisfied that it is no longer necessary
for him to be confined. In expressing
the matter in that way, I am not intending to depart from Lord Bingham’s
statement in R v Lichniak, R v Pyrah [2002] UKHL 47 at [16], [2002] 4
All ER 1122 at [16], [2003] 1 AC 903 that he doubted—
‘whether there is in
truth a burden on the prisoner to persuade the Parole Board that it is safe to
recommend release, since this is an administrative process requiring the board
to consider all the available material and form a judgment’.
While that is correct, the board has still to decide
whether ‘it is no longer necessary … that the prisoner should be confined’.
[48] It is next necessary to refer to the
power, not of the board but of the Home Secretary, to make rules relating to
the procedure to be employed by the board when conducting a hearing. However, before considering the rules, it is
important to emphasise that even if there were no rules, made either by the
Home Secretary or the board, the board would undoubtedly have the
responsibility to reconcile so far as it can, what Lord Carswell rightly
describes as a triangulation of interests: the board’s obligations to the
prisoner and its obligation to protect society and, as part of the latter
obligation, its obligation to
66
protect third parties so far as it is practical to do
so having regard to the board’s other responsibilities. Procedural rules cannot be devised that
anticipate all the situations that can arise where a tribunal has to exercise
its discretion to determine its own procedure in order to reconcile conflicting
interests of the nature to which I have just referred.
[49] My Lords, in determining the point of
principle we are asked to decide, we cannot ignore the reality of certain
criminal activity today. For example,
the lives of the sources of the essential information which the board requires,
if it is to safeguard society can, in some cases, be at grave risk if their
identities are revealed. Not all legal
advisors can be trusted. A legal advisor
may not only be acting for the prisoner but also for other parties who could be
equally antagonistic to the source. The
category of prisoners the board has to consider who are serving a mandatory
life sentence may, even after very long terms of imprisonment, remain extremely
dangerous individuals. So, while this,
fortunately, only occurs on rare occasions, it is inevitable that situations
will arise where the board is faced with the predicament of deciding to
significantly curtail the protection of what is normally provided for a
prisoner in order to perform its statutory duty. The circumstances in which this can happen
are demonstrated by the decisions of the board and the Administrative Court in
this case.
[50] While we do not know the contents of the
closed evidence in this case, we have to accept that a case could well occur
where a witness would be able to satisfy the board that there would be a real
danger of a prisoner killing someone if he is released, but the witness who
could provide the evidence of this is not prepared to make available the
evidence if it may be disclosed to the prisoner or his representatives. In such a situation it appears that there can
be no alternative but for the board to weigh up the conflicting interests of
the prisoner and society. It would
conflict with the board’s statutory duty for the board to ignore the evidence
unless this is what art 5(4) or domestic law require.
[51] The fact that the prisoner has been
convicted of the most serious of crimes and been sentenced to life imprisonment
makes his position significantly different from that of someone who has not
been convicted and who is awaiting trial.
In the latter situation, the predicament has, if necessary, to be
resolved in the accused’s favour. If
necessary, the prosecution may have to be discontinued if disclosure is
essential for the proper conduct of the prosecution. (See Edwards v UK (2003) 15 BHRC
189.) In Stafford v UK (2002) 13
BHRC 260 at 281 (para 82), the ECtHR, while condemning the approach of the
executive at that time, was careful to restrict its criticisms to ‘perceived
fears of future non-violent criminal conduct unrelated to his original
murder conviction’ (my emphasis). This
does not however mean that the prisoner has no rights that have to be
respected. As I will explain later both
under art 5(4) and domestic law his fundamental right to have a hearing that in
all the circumstances at least meets the minimum standards that for reasons of
fairness have to be respected.
[52] The rules are made under Pt 2 of the
Criminal Justice Act 1991 (the 1991 Act) (now repealed by the Criminal Justice
Act 2003). Section 32 of the 1991 Act
deals with the Parole Board. The section
provides so far as relevant:
‘(3) The Board shall
deal with cases as respects which it makes recommendations under this Part or
Chapter II on consideration of—(a) any documents given to it by the Secretary
of State; and (b) any other oral or written information obtained by it, and if
in any particular case the Board thinks it necessary to interview the person to
whom the case relates before
67
reaching a decision, the
Board may authorise one of its members to interview him and shall consider the
report of the interview made by that member.
(4) The Board shall deal
with cases as respects which it gives directions under this Part or Chapter II
on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to
subsections (3) and (4) above, the Secretary of State may make rules with
respect to the proceedings of the board, including provision authorising cases
to be dealt with by a prescribed number of its members or requiring cases to be
dealt with at prescribed times.
(6) The Secretary of
State may also give to the board directions as to the matters to be taken into
account by it in discharging any functions under this Part or Chapter II; and
in giving any such directions the Secretary of State shall in particular have
regard to—(a) the need to protect the public from serious harm from offenders;
and (b) the desirability of preventing the commission by them of further
offences and of securing their rehabilitation …’
[53] The only other relevant provision of the
1991 Act is para 1(2)(b) of Sch 5. This
is the commonly found ‘sweep up’ jurisdictional provision. It gives the board power to do ‘such things
and enter into such transactions as are incidental to or conducive to the
discharge of … its functions’.
[54] There have been three sets of rules made
under the 1991 Act, the Parole Board Rules 1992, the Parole Board Rules 1997
and the Parole Board Rules 2004. As the
2004 rules are now in force, we should concentrate primarily on those
rules. However, it is to be noted that
the 1992 rules already required relevant information to be served on the
prisoner or his representative subject to the information being withheld from
the prisoner if disclosure would affect adversely the health or welfare of the
prisoner or others. Then it is to be
served on the prisoner’s representative if the representative is a lawyer, a
medical practitioner or a person that the chairman of the panel identifies as
suitable. The prisoner can be
represented by any person whom he has authorised for this purpose, who is not
ineligible because (a) he is liable to be detained under the Mental Health Act
1983 or (b) he is serving a sentence of imprisonment or is on licence or with a
previous conviction that is not spent.
The rules also require the hearing to be oral, unless both parties and
the chairman agree otherwise. As to
procedure at the hearing, this is prescribed by the 1992 rules in terms that
give the panel considerable discretion.
The relevant provisions are:
‘9(1) Subject to
paragraph (3), the chairman of the panel may give, vary or revoke directions
for the conduct of the case, including directions in respect of—(a) the
timetable for the proceedings, (b) the varying of the time within which or by
which an act is required, by these Rules, to be done, (c) the service of
documents, (d) as regards any documents which have been received by the Board
but which have been withheld from the prisoner in accordance with rule 5(2),
whether the disclosure of such documents would adversely affect the health or
welfare of the prisoner or others, and (e) the submission of evidence; and
following his appointment under rule 3, the chairman of the panel shall
consider whether such directions need to be given at any time.
(2) Within 14 days of
being notified of a direction under paragraph (1)(d), either party may appeal
against it to the chairman, who
68
shall notify the other
party of the appeal; the other party may make representations on the appeal to
the chairman whose decision shall be final.
(3) Directions under
paragraph (1) may be given, varied or revoked either—(a) of the chairman of the
panel’s own motion, or (b) on the written application of a party to the Board
which has been served on the other party and which specifies the direction
which is sought; but in either case, both parties shall be given an opportunity
to make written representations or, where the chairman of the panel thinks it necessary, and subject
to paragraph (6)(b), to make oral submissions at a preliminary hearing fixed in
accordance with paragraph (4) …
13(2) Subject to this
rule, the panel shall conduct the hearing in such manner as it considers most
suitable to the clarification of the issues before it and generally to the just
handling of the proceedings; it shall so far as appears to it appropriate, seek
to avoid formality in the proceedings …
(4) The chairman of the
panel may require any person present at the hearing who is, in his opinion,
behaving in a disruptive manner to leave and may permit him to return, if at
all, only on such conditions as he may specify.
(5) The panel may
receive in evidence any document or information notwithstanding that such document
or information would be inadmissible in a court of law but no person shall be
compelled to give any evidence or produce any document which he could not be
compelled to give or produce on the trial of an action.
(6) The chairman of the
panel may require the prisoner, or any witness appearing for the prisoner, to
leave the hearing where evidence is being examined which the chairman of the
panel, in accordance with rule 9(1)(d) (subject to any successful appeal under
rule 9(2)), previously directed should be withheld from the prisoner as being
injurious to the health or welfare of the prisoner or another person.
(7) After all the
evidence has been given, the prisoner shall be given a further opportunity to
address the panel.’
[55] The 1997 rules and the 2004 rules are in
similar terms. There is, however, a
significant difference between r 6 of the 2004 rules and its predecessor. Rule 6 provides:
‘(1) Within 8 weeks of
the case being listed, the Secretary of State shall serve on the Board and,
subject to paragraph (2), the prisoner or his representative—(a) the
information specified in Part A of Schedule 1 to these Rules, (b) the reports
specified in Part B of that Schedule, and (c) such further information as the
Secretary of State considers to be relevant to the case.
(2) Any part of the
information or reports referred to in paragraph (1) which, in the opinion of
the Secretary of State, should be withheld from the prisoner on the grounds
that its disclosure would adversely affect national security, the prevention of
disorder or crime or the health or welfare of the prisoner or others (such
withholding being a necessary and proportionate measure in all the
circumstances of the case), shall be recorded in a separate document and served
only on the Board together with the reasons for believing that its disclosure
would have that effect.
(3) Where a document is
withheld from the prisoner in accordance with paragraph (2), it shall, unless
the chair of the panel directs otherwise, nevertheless be served as soon as
practicable on the prisoner’s representatives if he
69
is—(a) a barrister or
solicitor, (b) a registered medical practitioner, or (c) a person whom the
chair of the panel directs is suitable by virtue of his experience or
professional qualification; provided that no information disclosed in
accordance with this paragraph shall be disclosed either directly or indirectly
to the prisoner or to any other person without the consent/authority of the
chair of the panel.’ (My emphasis.)
[56] Although the earlier rules did not
contain the qualification that is now contained in r 6(3) as to the chair of
the panel being able to direct otherwise, if there was power to make r 6 of the
2004 rules, I would regard the wide unqualified power to give directions contained
in the earlier rules (for example r 9 of the 1992 rules) as creating a similar
power. That is a power of the board to
direct non-disclosure if the board is satisfied, in an exceptional situation,
that there is no alternative, if the public interest is to be protected. It would be extraordinary if there should be
no such power bearing in mind that it should have been obvious that such a
power could be necessary on hearings before the board as it is, and has been,
in criminal proceedings. Even if the position
were otherwise, such a power would have to be implied as a matter of necessity
to enable the board to perform its statutory duty to protect the public. It is to be noted that there is no express
statutory obligation for the board to hold an oral hearing. The procedural requirements are a product of
the rules. None the less s 28 implicitly
requires the board to act fairly and as part of that fundamental requirement of
fairness the board normally would be required to hold a hearing. In relation to such a right to a hearing, the
approach which Lord Bingham identified as being applicable in R v H, R v C
[2004] 1 All ER 1269, [2004] 2 AC 134 as to the Strasbourg approach could
equally be applied to our approach in this jurisdiction to the responsibilities
of an administrative body that is required to exercise a decision of the nature
entrusted to the board by s 28.
SPECIALLY APPOINTED ADVOCATES
[57] Understandably, the use of SAAs has
attracted adverse criticism. This
adverse criticism is particularly linked with their use before bodies such as
the Special Immigration Appeals Commission (SIAC), in conjunction with the
detention or other restrictions that may be imposed on those whom it is
suspected may commit terrorist offences.
However, if, in the present context, the use of an SAA is confined to
situations where the SAA can provide additional protection for the prisoner,
this is surely a safeguard for the prisoner.
[58] It was in relation to such a situation
that the use of an SAA was encouraged by the ECtHR in Chahal v UK (1996)
1 BHRC 405. It was this initiative by
the ECtHR that resulted in their use in this jurisdiction. Chahal v UK was a case where a Sikh
separatist leader had been detained in custody pending deportation for a
substantial period after the Home Secretary had decided that he was a threat to
national security. The ECtHR decided
inter alia, that there had been violation of art 5(4) of the convention. Mr Chahal had not been informed of the
sources of the evidence relied on by the Home Office in support of its
allegations which were put to an advisory panel. The ECtHR recognised (at 433 (para 131)) that
the use of confidential material could be unavoidable where national security
is at stake. The ECtHR went on to point
out that in Canada, a more effective form of judicial control had been
developed, referring to the use of SAAs.
As the ECt HR said:
70
‘This example
illustrates that there are techniques which can be employed which both
accommodate legitimate security concerns about the nature and sources of
intelligence information and yet accord the individual a substantial measure of
procedural justice.’
[59] This was no more than a suggestion. However, the reasoning of the ECtHR is to be
supported as long as the use of SAAs is confined to situations where their
involvement is not used to justify a reduction in the protection available to
the person affected by the non-disclosure.
For example, the use of an SAA would not be justified if, in the absence
of an SAA, the material would have been disclosed. The protection provided by the SAA may be
limited but, in some situations, it may make the critical difference. This is illustrated by M v Secretary of
State for the Home Dept [2004] EWCA Civ 324, [2004] 2 All ER 863.
[60] The use of an SAA is, however, never a
panacea for the grave disadvantages of a person affected not being aware of the
case against him. The use of an SAA can
be, however, a way of mitigating those disadvantages. For example, the SAA can persuade the
tribunal that there could perfectly properly be disclosure subject to no
restrictions or less stringent restrictions than the tribunal was minded to
impose. The SAA may be able to destroy
the credibility of a witness whose evidence is not disclosed. Although the SAA may not be allowed to
communicate with the person affected, in appropriate circumstances the SAA can
be authorised to communicate with those who do represent the person affected or
the SAA may, before he has been instructed, receive useful information. In addition, as this case illustrates, the
SAA can ensure that the decision as to non-disclosure is challenged on judicial
review.
[61] The appellant relies on the fact that
there is no statutory authority, whether in primary legislation or rules, that authorises
the use of an SAA for hearings before the board. This is in contrast with the position in
relation to some other bodies. However,
this is not in my view surprising. Other
bodies such as the SIAC can be expected to have to consider the use of an SAA
on a regular basis, whereas the use of an SAA before the board is wholly
exceptional, as is illustrated by this being one of the only two cases where an
SAA has been instructed to appear before the board. In many tribunals there may be no rules that
deal expressly with PII, but the tribunal would require a residual discretion
to prevent the disclosure of information, if its disclosure would damage the
public interest. It is of interest that
the ‘Guide to Drafting Tribunal Rules’ published by the Council on Tribunals in
November 2003 which contains their model rules makes no mention of SAAs or
procedures for witness protection.
However, r 22(2) provides that, if any document on which a party intends
to rely contains any matter which ‘consists of information communicated or
obtained in confidence, or concerns national security, and for that reason the
party seeks to restrict its disclosure’, the registrar must send copies of that
evidence to the parties only in accordance with the directions of the tribunal. This implies that the tribunal has the power
to give directions in such cases. Rule
27A gives the tribunal power to give directions regarding disclosure of
information and requires the tribunal to take account of factors, including the
fact that the information was obtained in confidence or concerned national
security (r 27A(3)).
[62] In fact, the absence of rules may not be
a disadvantage. It enables the use of
SAAs to be totally flexible. There
should, however, be two principles applied to their use. The first I have already identified: namely,
that they should only be appointed to assist the prisoner by providing a degree
of protection that would
71
otherwise be unavailable. The second principle is that their role in
any particular dispute should be tailored so that their use is no more than
that which is necessary in that case to mitigate the adverse position of the
prisoner who is affected. In addition it
is critical to recognise that the use of an SAA does not affect the overriding
obligation for a hearing to meet the requirements of art 5(4) and of
appropriate standards of fairness required by domestic law.
[63] Before turning to the specific arguments
advanced by Mr Owen QC as to why the SAA cannot be used before the board,
irrespective of the circumstances, it is right to stress that, if Mr Owen is
correct in his contentions on behalf of the appellant, in the exceptional case
where an SAA would otherwise be used to provide some protection, the prisoner
may be deprived of very real assistance.
THE APPELLANT’S CORE SUBMISSIONS
[64] In the course of his argument Mr Owen
helpfully identified four core submissions.
I will deal with each in turn.
[65] The first core submission
‘As a matter of domestic
law, the Parole Board is a statutory corporation, not a court of law possessed
of an inherent jurisdiction, and as such it is limited and circumscribed by the
statute which regulates it. What the
statute does not expressly or impliedly authorise is to be taken to be
prohibited.’
As a submission of law, this is correct. The issue here is whether there is an express
or implied authorisation. In my view,
there is an express authorisation to withhold information contained in the
current rules but if this is wrong, the authorisation is to be implied from the
duty of the board to conduct hearings which will enable it to reconcile the
triangulation of interests to which I have referred. In the case of the appointment of an SAA,
authorisation is implied from the undoubted implicit duty of the board under s
28 of the 1997 Act to conduct its decision-making process in a manner which so
far as is practical and appropriate in the circumstances ensures that the
prisoner is fairly treated. The
appointment of the SAA should only be made in the circumstances I have already
identified. If this approach is adhered
to and the possible appointment of an SAA is not used as an excuse to lower the
standards of fairness, the presence of the SAA can only mitigate the disadvantage
to which the prisoner would otherwise be subject. In these circumstances, I cannot see any
objection to an SAA being appointed. The
legislation and rules should not be interpreted as preventing the use of an
SAA. This is despite the decision of the
Administrative Court in R (on the application of S) v Waltham
Forest Youth Court [2004] EWHC 715 (Admin), [2004] 2 Cr App R 335. In R (on the application of D)
v Camberwell Green Youth Court, R (on the application of the Director of
Public Prosecutions) v Camberwell Green Youth Court [2005] UKHL 4,
[2005] 1 All ER 999, [2005] 1 WLR 393, Baroness Hale of Richmond expressed
reservations (at [63]) about that decision with which I would respectfully
agree. Courts should be slow to restrict
the implied power of an administrative body to enhance the fairness available
to a person who otherwise would be adversely affected by the lack of that
power.
[66] The second submission
‘Merely because the
Board satisfies the requirements of the “court” for the purposes of article
5(4) ECHR does not alter its domestic law status or
72
the controlling
principles of administrative law which apply to limit the Board’s procedural
vires.’
Again, I have no quarrel with the legal accuracy of this
submission. But the submission does not
advance the appellant’s case. Bodies
such as the board have an implied power under domestic administrative law to
control their own procedure so as to deal with a person in the position of the
appellant as fairly as the circumstances permit. The use of an SAA, in an exceptional case, can
assist the achievement of this. The SAA
was able to advance his contentions in favour of the appellant before the
Administrative Court and Maurice Kay J was able to evaluate the appellant’s
arguments taking into account the ‘closed facts’ and give a ‘closed judgment’
on those facts to which we have not been invited to refer. The result may have been adverse to the
appellant, but the fact that this action could be taken confirms that the
process is of value. In another case the
result could be different and the prisoner could establish that evidence is
unjustifiably being withheld from him.
[67] The third submission
‘Whether approached as a
straightforward question of vires or via the principle of legality, the Parole
Board has no power to create and apply, to the detriment of a life sentence
prisoner’s legal right to an adversarial hearing, a special advocate procedure
absent express legislative authority.
This is because the use of the special advocate indefinitely to
determine a prisoner’s liberty is not a necessary implication of the Board’s
statutory functions.’
On what I regard as being the proper approach, this
submission fails to advance the appellant’s case because the appointment of an
SAA is not detrimental to any legal right of the prisoner. This is because, as I have already explained
above, the appointment of an SAA should not be used as a justification for
reducing the rights that the prisoner would otherwise have but only as a way of
mitigating the disadvantage he would otherwise suffer if his rights were going
to be reduced with or without an SAA.
The submission refers to a special advocate ‘procedure’ but I here
refer, as does the issue, to the appointment of an SAA. A SAA can be used in a variety of
situations. It can only enhance the
rights of a life sentence prisoner. Any
complaint of the appellant should not be directed at the SAA but at the
non-disclosure to the prisoner. If there
is no right not to make disclosure to the prisoner or his legal representative,
then the SAA procedure cannot correct the failure to make disclosure. It is only if there can be non-disclosure in
the appropriate circumstances that the special advocate can have any role. That the SAA can have a role in appropriate
circumstances is inherent in the flexible nature of the requirement that the
prisoner is treated with fairness that is the source of the right to an oral
hearing.
[68] The fourth submission
‘Both at common law and
article 5(4) ECHR, there is a core, irreducible, minimum entitlement for any life
sentence prisoner to be able effectively to test/challenge any evidence which
decisively bears on the legality of his detention. By proceeding to determine the appellant’s
parole review by use of a special advocate, the Board is proposing to act unlawfully
(section 6, Human Rights Act 1998).’
73
I accept the contention that there is, as contended, ‘a
core, irreducible, minimum entitlement’.
But what the board does, if the need exists, to protect the safety of
the public interest in, for example, a life-threatening situation, is not
necessarily inconsistent with achieving the minimum in question. There is an issue as to what is that
minimum. The difficulty here is that we
are only able to approach this case as a matter of principle. We cannot approach it upon the facts because
we do not know the facts. There is a
balancing exercise to be performed in order to determine whether the minimum is
crossed. We are just not in a position
to perform that balancing exercise. In
order, therefore, to determine the agreed issue in the appellant’s favour, we
would first have to decide that there are no circumstances in which there can
be no disclosure of ‘any evidence which decisively bears on the legality of his
detention’ which would then justify the appointment of an SAA. We do not know, for example, whether the
inhibition on disclosure is temporary or likely to be permanent. We cannot even properly hazard a guess as to
the scale of the danger to the public interest which the decision of the board
is intended to protect.
[69] In this situation, the facts are critical
and the only safe guide that we have as to those facts is that the decision of
the board was by a former High Court judge who is a vice-president of the
board, and it has been upheld by the Administrative Court. The decision of the board was in respect of
three agreed issues:
‘(a) whether material to
be relied on by the Secretary of State … should be disclosed; (b) the form of
disclosure of any such material; and (c) whether some other process should be
applied in relation to any such material …’
It was agreed these three issues should be decided by the
board. It was further agreed:
‘In the event that the
Parole Board considers that disclosure should not be made to [Mr Roberts’s]
legal representative but should be made to a special advocate acting in the
interests of [Mr Roberts] in a similar manner to special advocates appearing
before the Special Immigration Appeals Commission, the Secretary of State will
fund the costs of the appointment of and representation by the special
advocate.’
This is what precisely has happened, but this does not
affect the appellant’s right to appeal.
[70] The nature of the panel who makes the
decision, as illustrated by this case, perhaps provides the greatest protection
for the prisoner because of the need to balance carefully the conflicting
interests involved before deciding whether non-disclosure is justified. An experienced judge is able to make some
appropriate allowance for the fact that evidence or information is not tested
as well as would normally be the case in an adversarial hearing. In addition there are usually steps which the
judge can take which will minimise the scale of non-disclosure and its effect. It is here that the SAA can assist. However, this is not to suggest that the
prisoner will not remain at a significant disadvantage if he is not in a
position to instruct his representative on the matters relied on against him in
the usual manner. It is because of this
that non-disclosure is a last resort and the question can still arise as to
whether in the particular case there has been a breach of the irreducible
minimum standard of fairness.
74
[71] In addition, the position as to
disclosure is not static. The balance
can change and, therefore, it is possible that the balance can move in favour
of the prisoner. (See R v Davis [1993]
2 All ER 643, [1993] 1 WLR 613, in which Lord Taylor CJ set out the procedure
to be adopted in the case of a claim for PII in the absence of any formal
rules.) If the position does change, the
prisoner should be informed and provided with any information that was
previously concealed from him.
[72] Concerns have been expressed about the
manner in which SAAs are used. No doubt
it is possible to improve upon the manner in which they are used. In the case of the SIAC there have been
expressions of concern by the special advocates themselves. However, the Attorney General has indicated
that positive responses can be made to those concerns. In any event, the board who decides that an
SAA should be used can impose conditions as to how they should be used.
[73] Mr Owen submits that the situations
involving national security come in a separate category. However, the need for protection is not
limited to situations involving national security though national security
concerns are likely to be especially compelling. The situations which can give rise to issues
as to whether there should be non-disclosure are illustrated by the categories
of case that have resulted in claims for PII which are not confined to national
security.
[74] Though not included in his core
submissions there is a different and I believe more persuasive manner in which
Mr Owen could advance his argument on behalf of the appellant. It is alluded to in the case for the
appellant (para 31(4)). The argument is
clearly set out in a different but parallel context in the speech of Lord
Bingham commencing at [25], above. It
turns on the need for any significant departure from the normal requirements of
a fundamental common law right, such as the right to natural justice, if it is
to be lawful, to be authorised expressly by primary legislation or something
equivalent thereto. This is so as to
give the departure the necessary democratic seal of approval. This is a requirement of domestic law but the
existence of the seal of democratic approval is also relevant as to whether
there has been compliance with art 5(4).
[75] The interpretation of current r 6 is not
totally clear, but I take the view that it is intended to enable the chair of
the panel to authorise in appropriate circumstances the
withholding of information from the prisoner and his representatives. However this does not mean that the rule
should be interpreted in a manner that would be wholly inconsistent with the
prisoner’s right to a fair hearing before the board. The statutory power of the Secretary of State
to make rules contained in s 32(5) of the 1991 Act cannot properly be construed
as authorising the creation of a rule which had such an effect without
expressly stating that this was the position.
Accordingly to give any broader interpretation to r 6 would mean the
rule would at least in part be ultra vires.
It would also inevitably result in conflict with art 5(4) if it was
applied in a manner that involved a fundamental breach of a prisoner’s rights
to a fair hearing.
[76] The fact that information is withheld
from a prisoner does not mean that there is automatically such a fundamental
breach of the prisoner’s rights either under art 5(4) or under domestic
law. There can be an infinite variety of
circumstances as to the degree of information that is withheld completely or
partially without any significant unfairness being caused. The responsibility of the panel is to ensure
that any unfairness is kept to a minimum while balancing the triumvirate of
interests to which I have already referred.
There may need
75
initially to be a total withholding of information,
but at an early stage of the hearing the prisoner may be able to be informed of
the gist of what is relied on against him.
Documents can be edited. There
has to be detailed management of the hearing to ensure that the prisoner has
the widest information possible. In
relation to this management the SAA can have a critical role to play on the
prisoner’s behalf.
[77] There are two extreme positions so far as
the prisoner is concerned. On the one
hand there is full disclosure and on the other hand there is no knowledge of
the case against him being made available to the prisoner, so that even with an
SAA he cannot defend himself. In between
the two there is a grey area and within that grey area is the border which is
the parameter between what is acceptable and what is not acceptable. Where that border is situated is fact
specific, depending on all the circumstances that have to be balanced. So far as art 5(4) is concerned the need to
examine the facts as a whole, including any appellate process, before coming to
a decision is critical as Lord Bingham points out in his speech (at [19],
above). The same is true in domestic
law. To make rulings in advance of the
actual hearing would be to introduce a rigidity that would make the task of the
board extraordinarily difficult. The
position has to be looked at in the round examining the proceedings as a whole
with hindsight and taking into account the task of the board. The board’s existing statutory framework,
including the rules, do not entitle the board to conduct its hearing in a
manner that results in a significant injustice to a prisoner and in view of art
5(4) I do not anticipate that primary legislation can now be introduced that
expressly authorises such a result without contravening the 1998 Act even if
express legislative authority was thought to be desirable.
[78] For support for this approach I would
gratefully adopt the authorities relied on by Lord Bingham and the series of
statutory precedents to which he refers in his speech (at [25], above, et
seq). In particular I refer to the citations
he makes from Pierson v Secretary of State for the Home Dept [1997] 3
All ER 577, [1998] AC 539 and R v Secretary of State for the Home
Dept, ex p Simms [1999] 3 All ER 400, [2000] 2 AC 115. If a case arises where it is impossible for
the board both to make use of information that has not been disclosed to the
prisoner and, at the same time, protect the prisoner from a denial of his
fundamental right to a fair hearing then the rights of the prisoner have to
take precedence, but we have not in my view reached the stage in this case where
we can say this has happened. Certainly
we cannot say it has happened without considering at least the closed as well
as the open judgment of Maurice Kay J.
The appellant has chosen to make the issue that which I identified at
the outset. He is saying in no
circumstances can an SAA be engaged at a hearing and this is putting the case
too high.
[79] Having had the advantage of reading my
noble and learned friend Lord Steyn’s speech in draft, I have been acutely
concerned that his conclusions about the outcome of this case are so
dramatically different from my own. As
far as I have been able to ascertain, the explanation for our differences of
opinion appears to be due to our adopting different approaches. Lord Steyn considers it right to focus
primarily on the position of the prisoner.
In his opinion the use of a SAA inevitably involves a significant
curtailment of the prisoner’s rights and for that reason the issue must be
determined now in the appellant’s favour.
On the other hand I consider that it is essential to focus, in addition,
on the problem the board faces in having to protect both the safety of the
public and the rights of the prisoner.
76
[80] The members of the public who could be
affected by a decision of the board have human rights as well as the
appellant. If the board releases a
prisoner when it is unsafe to do so, the public’s individual rights can be
grievously affected. In addition in a
situation where the board has to consider whether to withhold evidence from a
prisoner, for example to protect an individual whose life could be threatened
if his identity were revealed, the board is under a duty to protect this
individual’s interests. Not to do so
could involve the breach of art 2 or art 3 of the convention. The board can refuse to pay any attention to
the information that the individual could provide. This would mean, however, that the board
could be in breach of its express statutory duty. So it is my view that the information should
only be disregarded if there is no other way in which the prisoner’s
fundamental right to be treated fairly can be protected.
[81] A situation in which the board is faced
with this dilemma requires most anxious consideration. The board in my opinion must be able to
reconcile the interests involved wherever this is possible. I cannot conceive that when Parliament
entrusted the protection of the public to the board, Parliament could have had
any other intention. It was an essential
part of the board’s role.
[82] The board when confronted with a situation
where an SAA may have to be appointed must balance carefully the conflicting
interests involved. If it does not do so
in a way which in the end protects a prisoner’s rights to be treated fairly
then the Administrative Court can quash its decision. In this way the rule of law is upheld.
SUMMARY AND CONCLUSION
[83] I would therefore dismiss this appeal for
the reasons which I have sought to explain as well as the reasons set out in
the speeches of Lord Rodger of Earlsferry and Lord Carswell which I have seen
in draft. My reasons can be summarised
as follows: (i) The board has ample express and implied powers to enable the
board in the great majority of situations to give such directions as are needed
to ensure that the proceedings before it are conducted fairly and justly having
regard to the interests of the prisoner, the public and those who provide it
with information to enable it to perform its role. (ii) The board has also, under the rules made
since 1992, an express power to give directions and those directions could
relate to the non-disclosure of information to the prisoner when this is
necessary in the public interest. That
is as long as those directions together with any mitigating steps, such as the appointment
of an SAA, do not mean that there is a fundamental denial of the prisoner’s
rights to a fair hearing. (iii) Where
there should be, for public interest reasons that satisfy the board,
non-disclosure not only to the prisoner but also his representatives, and the
board concludes that the nature of the proceedings and the extent of the
non-disclosure does not mean that the prisoner’s right to a fair hearing will
necessarily be abrogated, the board has either an implicit or express power to
give directions as to withholding of information and, if it would assist the
prisoner, to the use of an SAA. (iv) In
the situation just described, if the board comes to a decision in favour of the
prisoner or reveals at least the gist of the case against the offender, then
there may be no injustice to the prisoner, but if this is not what happens at
the end of the proceedings the board will have to consider whether there has
been compliance with art 5(4) and the minimum requirements of fairness which
are to be implied from the nature of the board’s duty under the 1991 Act. If there has not been compliance then either
necessary steps must be taken to ensure compliance or
77
the non-disclosed material cannot be relied on. (v) The answer to the issue identified at the
outset of this judgment is that there can be situations where it is permissible
and other situations where it is not permissible for the board within the
powers granted by the 1991 Act and compatibly with art 5(4) (a) to withhold
material relevant to the appellant’s parole review from his legal
representatives, and (b) instead, disclose the material to an SAA. (vi) Into which category a case falls can
only be identified after examining all the circumstances and cannot be decided
in advance as a matter of principle.
(vii) What will be determinative in a particular case is whether looking
at the process as a whole a decision has been taken by the board using a
procedure that involves significant injustice to the prisoner. If there has been, the decision should be
quashed. The procedure may not be ideal
procedure but it may be the only or the best method of balancing the
triangulation of interests involved in the very small number of cases where an
SAA may be instructed.
LORD STEYN.
[84] My Lords, in US v Rabinowitz (1950)
339 US 56 at 69 Frankfurter J observed: ‘It is a fair summary of history to say
that the safeguards of liberty have frequently been forged in controversies
involving not very nice people.’ Even
the most wicked of men are entitled to justice at the hands of the State. In the comparative league of grave crimes
those of Roberts rank at the very top.
Thirty eight years ago he was convicted of the murder in cold blood of
three policemen who were on duty and serving the public. Roberts had two accomplices in a planned
armed robbery. Many will think, as I do,
that Roberts is morally not entitled to any sympathy for the fact that after
all these long years he is still in prison.
It is an entirely reasonable point of view that for such crimes life
imprisonment means exactly that.
[85] But individual views about the continued
detention of Roberts are irrelevant. His
position must be considered objectively and in accordance with settled legal
principles. In accordance with the law
at the time when Roberts was sentenced it fell to the Home Secretary to decide
on the tariff to be served by him. The
Home Secretary decided that it would be 30 years. Subject to the issue of the risk of physical
harm to others posed by the release of Roberts, the decision of the Home
Secretary is determinative. The issue of
risk is squarely within the province of the Parole Board as an independent
body. If the Parole Board determines, in
accordance with fair procedures, that because of the risk Roberts poses he
ought not to be released his continued detention is inevitable. On the other hand, if the Parole Board
determines in accordance with fair procedures, that if Roberts is released he
would not pose a risk, he is entitled to be released as a matter of right not
discretion.
[86] Roberts can, of course, not challenge the
sentence imposed upon him. His case is
that he has served his tariff term determined in accordance with due process of
law and that he no longer poses a risk if released. As a matter of legal principle this claim, if
it can be established on the facts, is sustainable under both domestic law and
under art 5(4) of the European Convention for the Protection of Human Rights
and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act
1998). It is sufficient to say that the
convention right contained in art 5(4) is directly engaged. It provides for a right ‘to take proceedings
by which the lawfulness of his detention shall be decided speedily by
78
a court and his release ordered if the detention is
not lawful’. It is common ground that
for the purposes of art 5(4) the Parole Board is a court.
[87] The Parole Board must act wholly
independently and impartially. In
considering the release of a prisoner it must act in a procedurally fair way:
compare R (on the application of Smith) v Parole Board, R (on
the application of West) v Parole Board [2005] UKHL 1 at [1], [2005]
1 All ER 755 at [1], [2005] 1 WLR 350.
It is common ground that Roberts is entitled to an oral hearing.
[88] The Parole Board decided to attenuate
Roberts’s right to a hearing in a drastic manner by imposing upon him, in place
of an advocate, who would be able to represent him in the ordinary way, a
special advocate. What this entails is
described in careful and measured terms by my noble and learned friend Lord
Bingham of Cornhill in his opinion at [18], above. Under this procedure the prisoner and his
legal representatives are not allowed to know anything of the case made against
the prisoner. Once the special advocate
becomes aware of the case against the prisoner he may not divulge that
information to the prisoner. It is not
to the point to say that the special advocate procedure is ‘better than
nothing’. Taken as a whole, the
procedure completely lacks the essential characteristics of a fair hearing. It is important not to pussyfoot about such a
fundamental matter: the special advocate procedure undermines the very essence
of elementary justice. It involves a
phantom hearing only.
[89] The primary question is whether the
particular evisceration of the right to a fair hearing directed by the Parole
Board was within its powers. The Parole
Board has no inherent jurisdiction. It
is a statutory corporation. It only has
the powers conferred upon it by the Criminal Justice Act 1991. The 1991 Act contains no express power
authorising the special advocate procedure.
It is common ground that if there is a statutory warrant for this
procedure it must be found in para 1(2)(b) of Sch 5 to the 1991 Act. It provides:
‘It shall be within the
capacity of the Board as a statutory corporation to do such things and enter
into such transactions as are incidental to or conducive to the discharge of
(a) its functions under this Part in respect of long-term and short-term
prisoners; and (b) its functions under Chapter II of Part II of the Crime
(Sentences) Act 1997 in respect of life prisoners within the meaning of that
Chapter.’
The question is therefore whether the power contained in
the words ‘to do such things … as are incidental to or conducive to the
discharge of [the relevant functions of the board]’, properly construed in its
setting, is wide enough to cover the Parole Board’s decision to take away a
prisoner’s right to a fair hearing. If
the words of the statute do not authorise the power which the board exercised,
the decision is ultra vires. In
examining this question the starting point is that the persuasive burden rests
on the Parole Board to demonstrate that its departure from ordinary fair
procedures is authorised by the statute.
[90] The operative words—to do such things as
are incidental to or conducive to the discharge of its functions—are familiar
words in the context of conferring implied powers on public authorities,
corporations or companies. Examples include
s 3A of the Companies Act 1985 which relates to the statement of the objects of
a company and s 111(1) and (3) of the Local Government Act 1972; and compare
Hazell v Hammersmith and Fulham London BC [1991] 1 All ER 545, [1992] 2 AC
1; McCarthy & Stone (Developments) Ltd v Richmond upon
Thames London BC [1991] 4 All ER 897, [1992] 2 AC 48. The issue involves a point of
construction.
79
The relevant statutory words are of extreme
generality, intended to serve multiple administrative purposes. As a matter of first impression one would not
expect to find in them a Parliamentary intent to take away fundamental
principles of due process.
[91] The vital question is the meaning of the
relevant words in their particular textual setting in the 1991 Act. It is essential to concentrate on the particular
power which must be justified. For
example, a generous approach to the power of the Parole Board to buy
stationery, in order to carry on correspondence with interested parties, would
be justified. On the other hand, a less
indulgent approach becomes necessary when the power under examination involves
a radical interference with fair hearing procedures which may result in the
unjust outcome of the prisoner having to remain in custody indefinitely. In the latter case the test to be applied
must of necessity be rigorous.
[92] The Parole Board was aware that (except
in the case of Northern Ireland) the procedure of appointing special advocates
had so far only been introduced by primary legislation of the Westminster
Parliament. That fact alone ought to have
suggested caution before such a radical power was introduced by the Parole
Board. Moreover, it is important to bear
in mind that the procedure of using the special advocate system was first
introduced in the field of national security.
The present case does not involve issues of national security. It is also not analogous to such cases. In a careful and balanced statement dated 24
September 2003 Mr Simon Creighton (a solicitor acting for Roberts) drew
attention to the difference between the circumstances of this case and national
security cases. He said (para 17):
‘The situation is vastly
different from the need for Special Advocates in the context for which they
were originally created, as the evidence in national security cases will
inevitably be provided by sources who are working in the field of state
security and therefore their identities have to remain secret in the interests
of national security.’
This difference cannot be brushed aside. After debate Parliament may well have decided
that an extension of the special advocate system to cases such as the present
would not be justified. But Parliament
has never been given the opportunity to consider the matter. This fact also suggests that the Parole
Board’s decision to depart from elementary fair procedures in the present case
was precipitate. If the decision of the
Parole Board is upheld in the present case, it may well augur an open-ended
process of piling exception upon exception by judicial decision outflanking
Parliamentary scrutiny.
[93] The special advocate procedure strikes at
the root of the prisoner’s fundamental right to a basically fair
procedure. If such departures are to be
introduced it must be done by Parliament.
It would be quite wrong to make an assumption that, if Parliament had
been faced with the question whether it should authorise, in this particular
field, the special advocate procedure, it would have sanctioned it. After all, in our system the working
assumption is that Parliament legislates for a European liberal democracy which
respects fundamental rights. Even before
the 1998 Act came into force, and a fortiori since then, the courts have been
entitled to assume that Parliament does not lightly override fundamental
rights. That is the context in which the
observations of the House in R v Secretary of State for the Home Dept, ex p
Simms [1999] 3 All ER 400,
80
[2000] 2 AC 115, are of great importance. Lord Hoffmann trenchantly stated ([1999] 3
All ER 400 at 412, [2000] 2 AC 115 at 131):
‘Parliamentary sovereignty
means that Parliament can, if it chooses, legislate contrary to fundamental
principles of human rights. The Human
Rights Act 1998 will not detract from this power. The constraints upon its exercise by
Parliament are ultimately political, not legal. But the principle of legality means that
Parliament must squarely confront what it is doing and accept the political
cost. Fundamental rights cannot be
overridden by general or ambiguous words. This is because there is too great a risk
that the full implications of their unqualified meaning may have passed
unnoticed in the democratic process.
In the absence of express language or necessary implication to the
contrary, the courts therefore presume that even the most general words were
intended to be subject to the basic rights of the individual.’ (My emphasis.)
This citation is directly in point because the authority
upon which the Parole Board relies is a classic example of general words
invoked to override a most fundamental right of due process. The courts must act on the basis that
Parliament would always consider with great care whether it should override
fundamental rights. And that must be
particularly the case in circumstances in which the denial of the fair
procedure may result in the indefinite detention of a prisoner whose tariff has
long ago expired.
[94] I accept, of course, that the Parole
Board is bound to give preponderant weight to the need to protect innocent
members of the public against any significant risk of serious injury (see R
v Parole Board, ex p Watson [1996] 2 All ER 641, [1996] 1 WLR 906). Nobody questions this position. But in my view Scott Baker LJ (as
vice-chairman of the Parole Board) acted ultra vires in approving
without primary legislation the special advocate procedure in this case. In my view the decision of the Court of
Appeal to the same effect was wrong (see [2004] 4 All ER 1136, [2005] QB 410).
[95] My noble and learned friend Lord Carswell
commented that a prisoner against whom unfounded allegations have been made is
in a Kafkaesque situation. That was an
apposite reference to The Trial (1925), the masterpiece of Franz
Kafka. A passage in The Trial has
a striking resonance for the present case.
Joseph K was informed:
‘the legal records of
the case, and above all the actual charge-sheets, were inaccessible to the
accused and his counsel, consequently one did not know in general, or at least
did not know with any precision, what charges to meet in the first plea;
accordingly it could be only by pure chance that it contained really relevant
matter … In such circumstances the Defence was naturally in a very ticklish and
difficult position. Yet that, too, was
intentional. For the Defence was not
actually countenanced by the Law, but only tolerated, and there were
differences of opinion even on that point, whether the Law could be interpreted
to admit such tolerance at all. Strictly
speaking, therefore, none of the Advocates was recognized by the Court, all who
appeared before the Court as Advocates being in reality merely in the position
of hole-and-corner Advocates.’
[96] In its decision of 13 June 2003 the
Parole Board observed:
‘… Miss Kaufmann [the
counsel of Roberts] sets out two respects in which she argues that Mr Roberts
would be prejudiced by the special
81
advocate procedure being
adopted: (a) The board has already found that there can be no disclosure of
even a gist to Mr Roberts. Mr Roberts
cannot therefore in any sense whatever answer the case against him. (b) It is fair to assume that the material is
being placed before the board because it has an important bearing on Mr
Roberts’ alleged dangerousness. If the
board accepts the source’s evidence and does not direct Mr Roberts’ release as
a result, the prejudice to Mr Roberts will not end there. Just as the board cannot disclose the gist to
him now, it will not be in a position to do so when it comes to provide reasons
for its decision. Mr Roberts will
continue to be detained on the basis of allegations about which he remains
completely ignorant. He will not
therefore be able to address the concerns underlying his continued detention or
take any steps to reduce the risk. It is
true that it will be the task of the Specially Appointed Advocate to represent
the interests of Mr Roberts, but he is in that respect at a serious
disadvantage to [Mr Creighton], who have acted for Mr Roberts for a very long
period. Mr Eadie on behalf of the
Secretary of State pointed out on 30 May that although there would be constraints
upon the Specially Appointed Advocate in communicating with Mr Roberts or his
representatives, there was no objection to Mr Roberts’ representatives
supplying information to the Specially Appointed Advocate on the basis of their
having acted for him for many years.
There is some merit in Mr Eadie’s point, but the board accepts that
there is very considerable force in Ms Kaufmann’s arguments and that if the
special advocate procedure is adopted this will result in prejudice to Mr
Roberts in the respects identified by Ms Kaufmann.’
My noble and learned friend Lord Woolf, the Lord Chief
Justice, has observed inter alia that if the board reveals at least the gist of
the case against the prisoner then there will be no injustice. But the board affirmatively found in the
present case that there can be no disclosure of even a gist to the
prisoner. I note that Lord Woolf
observes (at [51], above) that—
‘both under art 5(4) and
domestic law [the prisoner’s] fundamental right to have a hearing that in all
the circumstances at least meets the minimum standards that for reasons of
fairness have to be respected.’
In my view it is a formalistic outcome to describe a
phantom hearing involving a special advocate (as directed by the board) as
meeting minimum standards of fairness.
In truth the special advocate procedure empties the prisoner’s
fundamental right to an oral hearing of all meaningful content.
[97] In my view the outcome of this case is
deeply austere. It encroaches on the
prerogatives of the legislature in our system of Parliamentary democracy. It is contrary to the rule of law. It is not likely to survive scrutiny in
Strasbourg.
[98] Since preparing this opinion I have noted
a comment on it in the opinion of Lord Woolf (at [79], above). He states:
‘Lord Steyn considers it
right to focus primarily on the position of the prisoner. In his opinion the use of a SAA inevitably
involves a significant curtailment of the prisoner’s rights and for that reason
the issue must be determined now in the appellant’s favour. On the other hand I consider that it is
essential to focus, in addition, on the problem the board faces in having to
protect both the safety of the public and the rights of the prisoner’
82
This statement does not correctly reflect my
position. In [94] of my opinion I state:
‘I accept, of course,
that the Parole Board is bound to give preponderant weight to the need to
protect innocent members of the public against any significant risk of serious
injury (see R v Parole Board, ex p Watson [1996] 2 All ER 641, [1996] 1
WLR 906). Nobody questions this
position.’
This is a clear statement of the primacy of the need to
protect innocent members of the public.
My opinion speaks for itself and in the interests of economy I will not
repeat my reasoning.
[99] I am in full agreement with the reasons
given by my noble and learned friend Lord Bingham for his conclusion that the
decision of the Parole Board in this case was ultra vires. I would allow the appeal.
LORD RODGER OF EARLSFERRY.
[100] My Lords, on 12 August 1966 the
appellant, Harry Roberts, murdered three unarmed police officers. In December of the same year he was sentenced
to life imprisonment, with a recommendation that he should serve at least 30
years in custody—a recommendation that might well be regarded as lenient by
today’s standards when Parliament has fixed 30 years as the appropriate
starting point for the murder of one police officer in the course of his
duty. Mr Roberts has been in prison ever
since. Now the Parole Board have to
consider, in terms of s 28 of the Crime (Sentences) Act 1997, whether to direct
that he should be released on licence.
By s 28(6) they are not to do so unless they are ‘satisfied that it is
no longer necessary for the protection of the public that [Mr Roberts] should
be confined’. The protection of the
public is the paramount consideration.
[101] The board’s proceedings in Mr Roberts’s
case have been protracted—due, in large measure, to the present
litigation. To begin with, since Mr
Roberts is a mandatory life prisoner, the proceedings were not covered by any
rules. Then, as from 18 December 2003,
they were governed by the Parole Board Rules 1997 made by the Secretary of
State under s 32(5) of the Criminal Justice Act 1991 (the 1991 Act). On 1 August 2004, however, just after the
Court of Appeal’s decision, the Parole Board Rules 2004 came into force. They will apply to the hearing in this
case. So, even though the decisions of
the board and of the courts below were taken before the 2004 rules came into
force, it is common ground that the House should consider the position in terms
of these rules. This is only common
sense since the board could, in any event, make fresh directions under the 2004
rules. One effect of the new rules is to
spell out certain matters that were not mentioned in previous versions. So, in that respect, the context of some of
the arguments has changed.
[102] By virtue of r 6(1), when deciding
whether a prisoner should be released, the board have to consider, inter alia,
relevant information and reports served on them by the Secretary of State. Paragraphs (2) and (3) of r 6 provide:
‘(2) Any part of the
information or reports referred to in paragraph (1) which, in the opinion of
the Secretary of State, should be withheld from the prisoner on the grounds
that its disclosure would adversely affect national security, the prevention of
disorder or crime or the health or welfare of the prisoner or others (such
withholding being a necessary and proportionate measure in all the
circumstances of the case), shall be recorded in a separate
83
document and served only
on the Board together with the reasons for believing that its disclosure would
have that effect.
(3) Where a document is
withheld from the prisoner in accordance with paragraph (2), it shall, unless
the chair of the panel directs otherwise, nevertheless be served as soon as
practicable on the prisoner’s representative if he is—(a) a barrister or
solicitor, (b) a registered medical practitioner, or (c) a person whom the
chair of the panel directs is suitable by virtue of his experience or
professional qualification; provided that no information disclosed in
accordance with this paragraph shall be disclosed either directly or indirectly
to the prisoner or to any other person without the consent/authority of the chair
of the panel.’
[103] As r 6(2) envisages may happen, in
preparation for the hearing in the present case, the Secretary of State
included in the information that he supplied to the board certain sensitive
material which, in his opinion, should be withheld from Mr Roberts. This information was to be withheld because
there were fears for the safety of the informant if his or her identity should
become known, and the informant was unwilling to give evidence unless he or she
had an assurance that the information would not be given to Mr Roberts—or,
importantly, to his representatives.
[104] Previous versions of the rules made
provision for withholding information from a prisoner on the ground that its
disclosure would adversely affect the health or welfare of the prisoner or of
others. But in all such cases the
information was to be served on the prisoner’s representative, provided that it
was not to be disclosed either directly or indirectly to the prisoner or to any
other person without the authority of the chairman of the panel.
[105] Rule 6(2) in the 2004 rules adds to the
reasons for withholding information: it may also be withheld if its disclosure
would adversely affect national security or in order to prevent disorder or
crime. But withholding the information
must be a necessary and proportionate measure in all the circumstances of the
case. Rule 6(3) contains a further
innovation which is of importance in the present case. While the sensitive information should
generally be served on the prisoner’s representative, r 6(3) provides that the
chairman of the panel may direct otherwise.
In other words, as here, the chairman of the panel may direct that the
information should be withheld not only from the prisoner but from his
representative. Presumably in the light
of experience, when making the 2004 rules the Secretary of State anticipated
that this was a power which could be needed to enable the board to perform
their functions properly in certain situations.
So he included this clause which gives the chairman this express
power. Although the rule does not spell
out the grounds on which the chairman is to make the direction, it is implicit
in the scheme of paras (2) and (3) that such a direction must be necessary and
proportionate on grounds of national security, the prevention of disorder or
crime, or the health or welfare of the prisoner or others. It is the giving of this type of direction
which must always be a course of last, never of first, resort.
[106] Rule 6(3) expressly contemplates a situation
where, in coming to their decision on whether to release a prisoner, the board
may take into account information about the prisoner which has been supplied by
the Secretary of State but which the prisoner and his representative cannot
see. In reality, it is this rule which
gives rise to the procedure that Mr Roberts says is unfair. But, despite this, as his counsel
specifically acknowledged in the hearing before the House,
84
Mr Roberts does not challenge the validity of r 6(3)
in our domestic law. In particular, he
does not suggest that the Secretary of State lacked the power under s 32(5) of
the 1991 Act to make this provision.
Rather, his complaint is that the board, being a statutory tribunal of
limited jurisdiction, lack the power to adopt the special advocate
procedure. Therefore the question at
issue in these proceedings, and on which the House heard argument, concerns the
powers of the board under the 1991 Act and the 2004 rules to adopt the special
advocate procedure, not the powers of the Secretary of State under s 32(5) to
make r 6(3). My noble and learned
friend, Lord Woolf, suggests that Mr Owen QC might have advanced his argument
on behalf of the appellant in a more persuasive manner by focusing on the power
of the Secretary of State under s 32(5) to make r 6(3) and adopting the
argument in the speech of my noble and learned friend, Lord Bingham of Cornhill
(at [24], above, et seq). But such an
argument would have been irrelevant in these proceedings where the remedy
sought is the quashing of the board’s decision, not the quashing of the
Secretary of State’s rule.
[107] Even although r 6(3) invests the
chairman with the power to give a direction to withhold information from the
prisoner and his representative, in any case where he exercises the power the
board must be under an obligation to do everything they can to mitigate the
potentially serious adverse consequences for the prisoner. Here, with that aim in mind, and following
precedents in other kinds of proceedings, on 13 June 2003 the board directed an
advocate appointed by the Attorney General to receive the information and to
represent the interests of the prisoner, Mr Roberts, at the hearing. Since the advocate cannot discuss the information
with the prisoner or his representative, no one suggests that such an
appointment eliminates all the disadvantages which flow from the
direction. Far from it. But, as Lord Woolf observes, it is a step
which can only help the prisoner and it is, moreover, one which accords him ‘a
substantial measure of procedural justice’ (see Chahal v UK (1996) 1
BHRC 405 at 433 (para 131)). Appointing
such an advocate can accordingly be regarded as incidental to, and conducive
to, the discharge of the board’s functions in accordance with r 6(3). Therefore, in purely domestic law terms, in
making such an appointment the board act within their powers under s 32(7) of,
and para 1(2)(b) of Sch 5 to, the 1991 Act.
[108] Of course, the use of the specially
appointed advocate procedure will not be appropriate unless the chairman of the
panel has, in the first place, properly exercised the power under r 6(3) to
direct that the sensitive material should not be disclosed to the prisoner’s
representative. In the present case the
appellant is represented by an experienced solicitor who has acted for him for
many years. Nor is there a hint of
criticism of the solicitor’s professional propriety. Therefore, those who have not seen the closed
material may well find it surprising that the board decided that a direction to
withhold the material from the appellant’s representatives should be
given. But that question was first
explored in the directions hearing before Sir Richard Tucker who, having
considered all the relevant material, concluded inter alia that ‘if full disclosure
of the contents of section C were made to Mr Roberts, there would be a real
risk to the safety of the source or sources’.
After a further directions hearing with further submissions on the
appellant’s behalf, the board concluded that disclosure of the information to
Mr Roberts’s representatives would lead to a real risk of inadvertent
disclosure to him by those representatives.
In the decision under review they therefore directed that the sensitive
information should not be disclosed to Mr Roberts or his legal representatives
but only to the specially appointed advocate.
Not only
85
was that decision taken after careful consideration
of the submissions of counsel but, ‘upon a review of the utmost intensity’,
Maurice Kay J approved the deployment of the specially appointed advocate
procedure in this case. In doing so, he
specifically held ([2003] EWHC 3120 (Admin) at [20], [2004] 2 All ER 776 at
[20]) that there was no sensible way in which the evidence in question, which
is relevant to the performance of the board’s function, could have been placed
before it, save for the way that had been pursued. Moreover, in his view, ‘the fears of the
source are both subjectively and objectively justified’ and ‘exceptional
circumstances … exist’ in this case.
There is no appeal against his judgment on the merits.
[109] The House must therefore proceed on the
basis, first, that, given what Maurice Kay J described in his closed judgment
as ‘the potential importance of the sensitive material’, the material should be
available to the board when taking their decision on the appellant’s release,
but, second, that the risk of danger to the informant or informants is indeed
such as to make it necessary and proportionate to withhold the material from
the appellant and his solicitor. In
other words, the circumstances justify a direction in terms of r 6(3). In that situation the use of the specially
appointed advocate procedure is a way of protecting Mr Roberts’s interests,
while allowing the board to carry out their statutory function of deciding, on
the basis of all the relevant information, whether he can be safely released.
[110] Lord Woolf points out that in a case
such as the present things may well turn out differently at the hearing: at an
early stage the prisoner may in fact be informed of the gist of the evidence
against him, or documents may be made available in a redacted version. But to rely on that comforting scenario would
really be to wish away the very problem which the House is required to
confront. The House is called upon to
consider what is to be done when, as here, the board decide, in good faith and
for good reason, that information which is relevant to their decision cannot be
made available to the prisoner or his representative in any shape or form
without jeopardising the safety of the source of the information. These circumstances—for which no one is to
blame—are exceptional. They pose a
difficult problem for our system—one, moreover, which inapposite references to
Kafka do nothing to illuminate and tend, rather, to trivialise.
[111] In fact, r 6(3), which was made by the
Secretary of State under the authority of Parliament, points to the solution
which the House must adopt in this case: the board may use the information,
even though the prisoner and his representative do not have access to it. By appointing a special advocate, the board
have done what they can to assist Mr Roberts in the predicament brought about
by the proper application of this rule—and no one has suggested how they could
have done more. Of course, as all
concerned recognise, a hearing conducted on this basis falls short of the
ideal. Therefore, if the vires of r 6(3)
were under challenge (which they are not), one question might well be whether,
in the case of a convicted murderer, the procedure met the minimum standard of
fairness for a hearing of this particular kind in circumstances where the use
of the material was necessary and proportionate. The answer to that question, relating to the
vires of the rule, could not depend on the contingencies of particular
proceedings, such as those involving Mr Roberts. In addressing the question, however, a court
would have to contemplate the two possible alternative solutions, each of which
gives decisive weight to the interests of the prisoner.
86
One solution would be to disclose the information to
the prisoner’s representative and, if possible, to require the informant to
give evidence, even though this would risk putting his life or health in
jeopardy. That solution would be, to say
the least, unattractive and might well give rise to significant issues under
arts 2 and 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). The other solution would be for the board to
exclude from their consideration any evidence which could not be safely
disclosed to the prisoner or his representative. In other words, the board should close their
eyes to evidence, even though it would be relevant to the decision which
Parliament has charged them to take for the protection of the public. That solution too would be—again, to say the
least—unattractive and, moreover, hard to reconcile with the board’s statutory
duty not to direct a prisoner’s release on licence unless they are satisfied
that it is no longer in the interests of the public that he should be
confined. I therefore respectfully
regard Lord Woolf’s observations at [79]–[81], above, as being of great force,
but I say no more about the point, since it does not arise for decision in this
case and the House did not hear argument on it.
[112] So far as the argument based on the
convention is concerned, substantially for the reasons given by Lord Bingham, I
consider that the House cannot decide in advance whether the full hearing,
involving the specially appointed advocate, meets the requirements of art
5(4). The same competing interests fall
to be considered for the purposes of art 5(4), but the weight to be attached to
the various factors may well depend, in part at least, on what happens at the
hearing. For example, perhaps in the
light of the advocate’s cross-examination based on a study of the solicitor’s
file, the board may reject the evidence of the source as unreliable or
incredible. Or else, the board may
accept it in part but none the less order Mr Roberts’s release. These and similar possibilities mean that a
court will be in a position to determine whether Mr Roberts has had the kind of
hearing required by art 5(4) only once the hearing has taken place and the
board have reached their decision.
[113] For these reasons I would dismiss the
appeal.
LORD CARSWELL.
[114] My Lords, the appellant Harry Maurice
Roberts, who is now aged 68 years, was convicted on 12 December 1966 of the
murder by shooting of three policemen.
He was sentenced to imprisonment for life and the minimum term which he
was to serve (then commonly known as the ‘tariff’) was fixed at 30 years. On the expiry of that term on 30 September
1996 it became the duty of the Parole Board, under the statutory provisions to
which I shall refer, to consider whether he should be released. It has not yet given a decision in favour of
release and the appellant remains in prison.
The appeal before the House concerns the procedure which the Parole
Board may adopt in considering sensitive information and whether it may have
resort to the practice adopted in certain other tribunals of engaging a
specially appointed advocate (SAA) to represent, so far as he is able, the
interests of the prisoner.
[115] The statutory foundation of the Parole
Board is to be found in the Criminal Justice Act 1991. Section 32(1) provides, as amended:
‘The Parole Board shall
be, by that name, a body corporate and as such shall—(a) be constituted in
accordance with this Part; and (b) have the functions conferred by this Part in
respect of long-term and short-term
87
prisoners and by Chapter
II of Part II of the Crime (Sentences) Act 1997 … in respect of life prisoners
within the meaning of that Chapter.’
There is a clear implication from the matters to which the
Secretary of State has to have regard in giving directions under s 32(6) that
these are objects of the board. They are
(a) the need to protect the public from serious harm from offenders and (b) the
desirability of preventing the commission by them of further offences and
securing their rehabilitation. As my
noble and learned friend Lord Bingham of Cornhill confirmed in R (on
the application of Smith) v Parole Board, R (on the application
of West) v Parole Board [2005] UKHL 1 at [26], [2005] 1 All ER 755
at [26], [2005] 1 WLR 350, the board’s sole concern is with risk, and it has no
role at all in the imposition of punishment.
[116] Powers relating to the board’s functions
were conferred by para 1(2) of Sch 5 to the 1991 Act:
‘It shall be within the
capacity of the Board as a statutory corporation to do such things and enter
into such transactions as are incidental to or conducive to the discharge of …
(b) its functions under Chapter II of Part II of the Crime (Sentences) Act 1997
in respect of life prisoners within the meaning of that Chapter.’
By virtue of the provisions of the Crime (Sentences) Act
1997 and the Criminal Justice Act 2003 the Parole Board now has the function of
deciding on the release of life prisoners, as distinct from merely advising the
Secretary of State, and its remit extends to mandatory as well as discretionary
life prisoners. Section 28(5) and (6) of
the 1997 Act provide:
‘(5) As soon as—(a) a
life prisoner to whom this section applies has served the relevant part of his
sentence; and (b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6) The Parole Board
shall not give a direction under subsection (5) above with respect to a life
prisoner to whom this section applies unless—(a) the Secretary of State has
referred the prisoner’s case to the Board; and (b) the Board is satisfied that
it is no longer necessary for the protection of the public that the prisoner
should be confined.’
[117] Rules were made by the Secretary of
State, pursuant to the power contained in s 32(5) of the 1991 Act, with respect
to the proceedings of the Parole Board.
No express provision for the appointment of an SAA is contained in any
of the rules made and authority has to be sought from the general power
contained in para 1(2) of Sch 5 to the 1991 Act, to do such things as are
incidental to or conducive to the discharge of its functions.
[118] Rule 6 of the Parole Board Rules 2004
(which it is agreed will apply to the board’s hearing of the appellant’s case)
makes provision for the service of information and reports:
‘(1) Within 8 weeks of
the case being listed, the Secretary of State shall serve on the Board and, subject
to paragraph (2), the prisoner or his representative—(a) the information
specified in Part A of Schedule 1 to these Rules, (b) the reports specified in
Part B of that Schedule, and (c) such further information as the Secretary of
State considers to be relevant to the case.
88
(2) Any part of the
information or reports referred to in paragraph (1) which, in the opinion of
the Secretary of State, should be withheld from the prisoner on the grounds
that its disclosure would adversely affect national security, the prevention of
disorder or crime or the health or welfare of the prisoner or others (such
withholding being a necessary and proportionate measure in all the
circumstances of the case), shall be recorded in a separate document and served
only on the Board together with the reasons for believing that its disclosure
would have that effect.
(3) Where a document is
withheld from the prisoner in accordance with paragraph (2), it shall, unless
the chair of the panel directs otherwise, nevertheless be served as soon as
practicable on the prisoner’s representative if he is—(a) a barrister or
solicitor, (b) a registered medical practitioner, or (c) a person whom the
chair of the panel directs is suitable by virtue of his experience or
professional qualification; provided that no information disclosed in
accordance with this paragraph shall be disclosed either directly or indirectly
to the prisoner or to any other person without the consent/authority of the
chair of the panel.’
The express power contained in r 6(3) for the chair of the
panel to direct the withholding of a document from the prisoner’s
representative was an innovation in the 2004 rules, though such a power may
have previously existed by necessary implication. As my noble and learned friend Lord Woolf has
pointed out, it will be exercised by a chairman who has held high judicial
office and applies his experience of balancing conflicting considerations in
deciding whether to give such a direction.
The use of an SAA, with all of the handicaps which it imposes upon a
prisoner, accordingly will operate to mitigate the rigour of a direction and
the disadvantages accruing to him.
[119] The appellant’s dossier which was
furnished to the Parole Board shows a progression over time in his behaviour
and attitude from a hostile and uncooperative prisoner, who made numerous
escape plans in the earlier part of his detention, to one who had with maturity
and the passing of time settled down into a well-behaved prisoner who qualified
for enhanced status. In March 2000 he
was transferred to an open prison. A
review was due to begin in September 2001, with the prospect that a process
leading towards eventual release would be put in train. Then in or about September 2001 HM Prison
Service received allegations that he had been involved in drug dealing,
bringing unauthorised material into prison and other infractions of
discipline. He was transferred back to a
closed prison and investigations into the allegations commenced. His solicitors made detailed representations
on his behalf and were informed by a letter of 22 April 2002 that although
material disclosed to them in connection with the appellant’s removal from the
open prison would be added to the dossier, certain material to be included in
it would not be disclosed to him. The
solicitors protested strongly in correspondence about the withholding of this
material. The Prison Service has
expressed as its reason for withholding a fear for the safety of the source of
the information on which it is based if it should become known whence it had
come and the unwillingness of the informant to give evidence unless he had a
sufficient assurance that the information would not be given to the appellant
or his representatives.
[120] The appellant’s case was referred to the
Parole Board by the Secretary of State in May 2002 and he was interviewed by a
member of the board on 6 June 2002. He
then brought an application for judicial review, which was concluded
89
by a consent order dated 18 October 2002 whereby the
appellant and the Secretary of State agreed on a procedure for dealing with the
sensitive material. Although it referred
to the appointment of an SAA as a possible procedure, the consent did not
extend to agreement on the part of the appellant that it should be adopted. The vice-chairman of the Parole Board Scott
Baker LJ considered the matter and recommended on 15 November 2002 that an SAA
should be appointed, the sensitive material should be disclosed to him and a
hearing should take place before the legal chairman of the panel to discuss
procedure and receive representations.
[121] That hearing took place on 30 May 2003,
when the chairman of the panel Sir Richard Tucker presided and representatives
of the Secretary of State, the Prison Service and the appellant were present,
including counsel, together with the SAA Mr Nicholas Blake QC. Mr Blake had been appointed as recommended by
Scott Baker LJ and took part in directions hearings on 9 May and 30 May 2003. He had also furnished an opinion in February
2003, in which he advised, after seeing the sensitive material, that
consideration be given to disclosing it to counsel nominated by the appellant’s
solicitor, who would be subject to the restrictions contained in the Parole
Board Rules forbidding disclosure to the prisoner or any other person without
the consent or authority of the chair of the panel. This advice was not accepted and the matter
remained to be considered at the hearing on 30 May 2003.
[122] At the directions hearing on 9 May 2003
the chairman made the following findings:
‘(i) with regard to the
“sensitive material” contained in section C of the dossier, the fears of the
source or sources are genuine and held on reasonable grounds (reference para 11
of Ms Kaufmann’s skeleton argument of 7 May 2003); (ii) if full disclosure of
section C were to be made to Mr Roberts, there would be a real risk to the
safety of the source or sources (para 12 of Ms Kaufmann’s skeleton argument);
(iii) in making directions on disclosure, the board must balance the interests
of the various parties involved.
These are: (a) the
public—the board’s ultimate purpose is to protect the public. Moreover, it is important that all judicial
decisions are made on the basis of the broadest information available; (b) the
prisoner—the prisoner has the right to proper representation and examination of
the evidence. This is not, however, an
absolute right. The Parole Board Rules,
while not specifically applicable to mandatory lifers, but issued in line with
the application of art 5(4) of the convention to other categories of life
sentence prisoners, acknowledge that the public interest may restrict the
prisoner’s right in this respect (reference r 5 [of the Parole Board Rules
1997]); (c) the source or sources of the “sensitive material”—these parties
have the right under arts 2 and 3 of the convention, and under common law, to
protection.’
The three interests concerned have been referred to
throughout this case as the ‘triangulation of interests’.
[123] Following the hearing on 30 May 2003 the
Parole Board notified the appellant’s solicitors by letter dated 13 June 2003
that it considered that the balance of interests was firmly in favour of the
appointment of an SAA to represent the appellant in relation to the sensitive
material. Disclosure of that material
would be made only to him and not to the appellant or his legal
representatives. The directions did not
spell out what Mr Blake was to do but, as
90
Tuckey LJ set out in his judgment in the Court of
Appeal ([2004] EWCA Civ 1031 at [7], [2004] 4 All ER 1136 at [7], [2005] QB
410):
‘it is common ground
that it was intended that he would perform the same functions and be subject to
the same restrictions as a special advocate appointed under the Special
Immigration Appeals Commission (Procedure) Rules 1998, SI 1998/1881. Thus he was required to represent the
interest of the appellant by making submissions to the board at any closed
hearings, cross-examine witnesses at any such hearing and make written
submissions to the board. In performing
these functions he was not to disclose any sensitive material to or obtain
instructions from the prisoner or his representatives, although they could and
had provided him with as much information about the case as possible.’
[124] The appellant then commenced the
proceedings for judicial review of the Parole Board’s decision of 13 June 2003
which are before the House. The matter
came before Maurice Kay J, who heard argument both on the principle of
appointing an SAA and, in closed session at which he considered the sensitive
material, on the issue whether it was appropriate in the case before him. He gave a written judgment on 19 December
2003 ([2003] EWHC 3120 (Admin), [2004] 2 All ER 776), on the ‘open’ matters,
dismissing the application. He gave a
separate judgment on the ‘closed’ matters, but this has not been the subject of
appeal and the House has not seen or considered any of the sensitive material
or heard any argument based upon it.
[125] When the appeal came before the Court of
Appeal it was confined to a point of principle, the contention that it was not
open to the Parole Board to adopt the procedure of appointing an SAA. By a judgment dated 28 July 2004 ([2004] 4
All ER 1136, [2005] QB 410) the court dismissed the appeal. Tuckey LJ, with whom the other members
agreed, held that the Parole Board had power to adopt the SAA procedure,
notwithstanding the absence of specific provision in the rules. He did not accept the appellant’s argument
that if there was such power its exercise was confined to cases involving
national security. He also held that
adoption of the SAA procedure did not in principle infringe proper standards of
fairness and did not involve a breach of art 5(4) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in
Sch 1 to the Human Rights Act 1998) (the convention). It was therefore open to the Parole Board to
adopt it in a suitable case, though he agreed with the judge that such a
solution should only be adopted in exceptional circumstances and should not
become the norm.
[126] It is undeniable that to have material
withheld from his legal representatives as well as himself and to have his
interests represented only by an SAA is a substantial handicap to a prisoner in
a hearing before the Parole Board. Lord
Woolf in his opinion at [60], above, justifiably described the
disadvantages of being left in ignorance of the case against him as grave,
repeating the epithet which he used in M v Secretary of State for the Home Dept
[2004] EWCA Civ 324, [2004] 2 All ER 863 when describing the problems
facing appellants before the Special Immigration Appeals Commission
(SIAC). I would not seek in any way to
minimise those disadvantages. A prisoner
against whom unfounded allegations have been made is in a Kafkaesque situation,
as my noble and learned friend Lord Steyn has graphically indicated. He may be altogether in the dark about the
allegations made and unable to divine what they may be and give
91
instructions about rebutting them. The SAA is necessarily limited in the steps
which he can take to challenge them, bearing in mind his inability to take
instructions from the prisoner. The
difficulties faced by SAAs were authoritatively described in the written
evidence given by a number of SIAC special advocates to the House of Commons
Constitutional Affairs Committee:
‘Special Advocates can
identify (by cross-examination and submissions) any respects in which the
allegations made by the Home Secretary are unsupported by the evidence relied
upon and check the Home Secretary’s evidence for inconsistencies. But Special Advocates have no means of
knowing whether the appellant has an answer to any particular closed
allegation, except insofar as the appellant has been given the gist of the
allegation and has chosen to answer it.
Yet the system does not require the Secretary of State necessarily to
provide even a gist of the important parts of the case against the appellants
in the open case which is provided to the appellants. In these situations, the Special Advocates
have no means of pursuing or deploying evidence in reply. If they put forward a positive case in
response to the closed allegations, that positive case is inevitably based on conjecture. They have no way of knowing whether it is the
case that the appellant himself would wish to advance. The inability to take instructions on the
closed material fundamentally limits the extent to which the Special Advocates
can play a meaningful part in any appeal.’
(See Seventh Report of the Session 2004–2005 (HC paper 323-II), Ev 55
(para 10).)
Other practical difficulties involved in the use of SAAs
were outlined by Lord Bingham of Cornhill in his opinion in R v H, R v C
[2004] UKHL 3 at [22], [2004] 1 All ER 1269 at [22], [2004] 2 AC 134.
[127] Against that one has to set the risks to
the informant if the material is disclosed.
I have little doubt that the fears entertained by an informant confined
in prison of dangerous and unpleasant consequences if it were discovered that
he had given information about the nefarious activities of fellow prisoners are
very real. Unlike persons who are free
to move about in ordinary society, he is very limited in the actions he can
take to protect himself. Prisoners who
did not wish their activities to be exposed would undoubtedly make considerable
efforts to find out who had given information, if they received the slightest
inkling that this had occurred. This
factor provides the reason for the restrictive rules under which SAAs have to
work. Even though the prisoner’s legal
representatives may be of the highest integrity—and it should be emphasised
that the integrity of the appellant’s advisers is unquestioned—their inquiries
of their client, however carefully and skilfully conducted, may well give him
or his associates sufficient information for them to make a serviceable guess
at the source of the information on which the allegations are based.
[128] The third element in the triangulation
of interests is the public interest in the performance by the Parole Board of
its function of deciding whether it is safe to release prisoners who have been
imprisoned for grave crimes, a matter which is one of serious public concern
and the subject of anxious consideration by the board. And as Sir Thomas Bingham MR observed in R
v Parole Board, ex p Watson [1996] 2 All ER 641 at 650, [1996] 1 WLR 906 at
917:
92
‘in the final balance
the board is bound to give preponderant weight to the need to protect innocent
members of the public against any significant risk of serious injury.’
[129] Before your Lordships’ House Mr Owen QC
for the appellant focused on two issues, the board’s power to adopt the SAA
procedure and the contention that to do so would constitute a breach of art
5(4). Lord Woolf has set out (at [64] et
seq, above) the core submissions advanced by Mr Owen and I need not repeat
them. I agree with his conclusions on
each of these submissions and I shall express my opinion on the issues in
fairly brief compass.
[130] It was submitted on behalf of the
appellant that in the absence of specific statutory authority the Parole Board
did not have power to adopt the SAA procedure.
Mr Owen contrasted the board with other tribunals which had been given
such specific power (for a review of a number of such tribunals, see R v H,
R v C [2004] 1 All ER 1269 at [21], [2004] 2 AC 134, per Lord Bingham).
[131] It was argued on behalf of the Parole
Board that the power to appoint an SAA arose by necessary implication from its
functions, as specified by or derived from the terms of the Criminal Justice
Act 1991 and the Crimes (Sentences) Act 1997.
That may well be correct, although the test of necessary implication is
demanding. It seems to me, however, that
the board can more simply and easily satisfy the test contained in para 1(2) of
Sch 5 to the 1991 Act, which provides that it is within its capacity to do such
things as are ‘incidental to or conducive to the discharge of its
functions’. The functions of the board
are to assess whether it is safe to release offenders or whether they would
constitute a danger to the public if set free from prison. In order to discharge these functions it is
essential that it has before it all material information necessary for
determination of that issue of public safety.
If the only effective way to get that information from reluctant
informants is to use the SAA procedure, then I consider the use of that
procedure incidental to or conducive to the discharge of its functions.
[132] This conclusion is reinforced by the
point made both by Tuckey LJ at para [29] of his judgment and by Lord Woolf in
several places in his opinion, that the Parole Board has power to withhold
material altogether from the prisoner and his representatives. That power is now specifically conferred by r
6 of the Parole Board Rules 2004, but probably existed by necessary implication
under earlier rules (see Lord Woolf’s opinion at [56], above). The use of the SAA procedure is in these
circumstances a mitigation to some extent of the considerable disadvantage
which the prisoner would suffer if the material were altogether withheld.
[133] Mr Owen argued as a fallback position
that if it were held that the Parole Board has power to use the SAA procedure,
it should be confined to cases where protection of the information is necessary
in the interests of national security.
He pointed to other instances in which statutory power was conferred to
use the SAA procedure, but only for that purpose. The context of the work of most of these, eg
the SIAC and the Pathogens Access Appeal Commission, is such that information
affecting national security is the only sort of sensitive material likely to be
considered by them. It is therefore not
remarkable that the power to use the SAA procedure is specifically directed
towards such information.
[134] It is notable that the authority of
several bodies in Northern Ireland to use the SAA procedure is wider, and for
reasons which apply mutatis mutandis to the Parole Board. The three bodies in question are the Sentence
Review Commissioners appointed under the Northern Ireland (Sentences) Act 1998,
the
93
Life Sentence Review Commissioners appointed under
the Life Sentences (Northern Ireland) Order 2001, SI 2001/2564 and the
Commissioner appointed to advise the Secretary of State in the discharge of his
functions under the Northern Ireland (Remission of Sentences) Act 1995 (the
1995 Act). The rules made under the
Northern Ireland (Sentences) Act 1998, in pursuance of which the Sentence Review
Commissioners have the function of considering the early release of persons
imprisoned for terrorist offences, provide for the withholding of ‘damaging
information’ and the appointment of an SAA.
One of the heads of damaging information is information whose disclosure
would be likely to ‘adversely affect the health, welfare or safety of the
person concerned or any other person’.
The Life Sentence Review Commissioners have the duty of considering the
release of prisoners sentenced to life imprisonment, in the same way as the
Parole Board in England and Wales. The
rules made under the 2001 order provide for withholding of certified
‘confidential information’ and the appointment of an SAA. Confidential information is defined as
including material whose disclosure would affect the safety of any
individual. Finally, the Secretary of
State adopted safeguards for the discharge of his duty under the 1995 Act of
considering the recall of prisoners released from prison on licence. The Commissioner appointed to advise him is
not to reveal to the prisoner any information certified by the Secretary of
State as ‘damaging information’ within the meaning of the rules made under the
Northern Ireland (Sentences) Act 1998, and provision is made for the
appointment of an SAA. I do not think
that it is possible to draw from these examples the conclusions which Mr Owen
seeks to draw; on the contrary, the example of the several sets of Northern
Ireland provisions shows that a wider range of sensitive material can in
a suitable case be brought before a tribunal. The Parole Board regularly has such cases in
the course of its work and in my view a restriction to national security has no
foundation in principle or practice.
[135] The second major issue argued on behalf
of the appellant was the compatibility with the convention of the use of the
SAA procedure by the Parole Board, which as a public authority is required by s
6 of the Human Rights Act 1998 not to act in a way which is incompatible with a
convention right. The right in question
is contained in art 5(4), which provides:
‘Everyone who is
deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.’
It was common case that this provision was engaged. A prisoner whose tariff period has expired is
entitled to have his continued detention decided by a ‘court’, and for these
purposes the Parole Board has the essential features of a court. An adversarial procedure involving oral
representation and the opportunity to call and question witnesses is required
(see Hussain v UK (1996) 22 EHRR 1).
[136] The submission advanced on behalf of the
appellant was that the use of an SAA imposed such grave disadvantages upon him
that the Parole Board’s procedure did not satisfy the requirements of fairness
which would make it compatible with art 5(4).
Mr Owen did not contend, however, that the power under the Parole Board
rules to withhold material altogether was incompatible. In support of this submission he cited a
number of decisions in which it was held
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that complainants did not have a hearing compatible
with the requirements of art 5(4) when deprived of access to documentation
material to the case.
[137] Mr Owen relied on several cases decided
by the European Court of Human Rights (ECtHR) in which it was held that the
inability to challenge the prosecution case in various respects constituted a
breach of art 5(4). In Lamy v Belgium
(1989) 11 EHRR 529 when the complainant, who had been arrested on charges
relating to his bankruptcy and detained on remand, sought to challenge the
detention, the Indictments Chamber of the Court of Appeal relied in rejecting
his appeal on two material documents which were not communicated to the
complainant. The court held that access
to the documents was essential, that there had been inequality of arms, the
procedure was not truly adversarial and there was accordingly a breach of art
5(4). In so concluding it examined the
reasons put forward by the government to justify withholding the documents and
found them insufficient.
[138] In Nikolova v Bulgaria (2001) 31
EHRR 64 the issue was again the legality of an order continuing the
complainant’s detention on remand when challenged by her. She had been charged with false accounting
and misappropriation of state funds. The
Regional Court failed to consider facts invoked by her which it was claimed
were capable of placing in doubt the conditions requiring to be satisfied for
continuing detention. Nor were her
lawyers able to consult any of the documents in the file in order to challenge
the reasons put forward by the prosecutor for her detention. The court held that there had been a breach
of the guarantees afforded by art 5(4).
Again no sufficient justification was put forward for depriving the
complainant of access to the documents or failing to consider the facts on
which she relied.
[139] The ECtHR decision on which the
appellant placed most reliance was Garcia Alva v Germany (2001) 37 EHRR
335. The complainant had been arrested
on suspicion of drug trafficking and was detained on remand. When he brought an application for review of
his detention his lawyers were not given access to a number of documents in the
file, including the depositions of a witness whose testimony was key evidence
against him. The ground for withholding
these was that consultation of these documents would endanger the purpose of
the investigations. The court held that
there had been a violation of art 5(4).
It stated (at 353 (para 41)):
‘In the Court’s opinion,
it is hardly possible for an accused to challenge the reliability of such an
account properly without being made aware of the evidence on which it is
based.’
It went on (at 354 (para 42)):
‘The Court acknowledges
the need for criminal investigations to be conducted efficiently, which may
imply that part of the information collected during them is to be kept secret
in order to prevent suspects from tampering with evidence and undermining the course
of justice. However, this legitimate
goal cannot be pursued at the expense of substantial restrictions on the rights
of the defence. Therefore, information
which is essential for the assessment of the lawfulness of a detention should
be made available in an appropriate manner to the suspect’s lawyer.’
[140] The difference in approach to deciding
cases of the ECtHR by comparison with that of our courts determines the way in
which its decisions
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should be used.
Lord Bingham said, when giving the opinion of the Appellate Committee in
R v H, R v C [2004] 1 All ER 1269 at [33], [2004] 2 AC 134 at [33], that
following these decisions in too narrow a manner would place judges in a
straitjacket. He went on:
‘The consistent practice
of the [Strasbourg] court, in this and other fields, has been to declare
principles, and apply those principles on a case-by-case basis according to the
particular facts of the case before it, but to avoid laying down rigid or
inflexible rules … The overriding requirement is that the guiding principles
should be respected and observed, in the infinitely diverse situations with
which trial judges have to deal, in all of which the touchstone is to ascertain
what justice requires in the circumstances of the particular case.’
In the same vein he said in the earlier case of Brown v
Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 at
115, [2003] 1 AC 681 at 704:
‘The jurisprudence of
the European Court very clearly establishes that while the overall fairness of
a criminal trial cannot be compromised, the constituent rights comprised,
whether expressly or implicitly, within art 6 are not themselves absolute. Limited qualification of these rights is
acceptable if reasonably directed by national authorities towards a clear and
proper public objective and if representing no greater qualification than the
situation calls for. The general
language of the convention could have led to the formulation of hard-edged and
inflexible statements of principle from which no departure could be sanctioned
whatever the background or the circumstances.
But this approach has been consistently eschewed by the court throughout
its history. The case law shows that the
court has paid very close attention to the facts of particular cases coming before
it, giving effect to factual differences and recognising differences of
degree. Ex facto oritur jus. The court has also recognised the need for a
fair balance between the general interest of the community and the personal
rights of the individual, the search for which balance has been described as
inherent in the whole of the convention …’
[141] In the context of art 6 it was
recognised by the ECtHR that the entitlement to disclosure of relevant evidence
is not absolute, but there may be competing interests. In Edwards v UK (2003) 15 BHRC 189 at
202 (para 53) the court said:
‘The entitlement to
disclosure of relevant evidence is not, however, an absolute right. In any criminal proceedings there may be
competing interests, such as national security or the need to protect witnesses
at risk of reprisals … which must be weighed against the rights of the
accused. In some cases it may be
necessary to withhold certain evidence from the defence so as to preserve the
fundamental rights of another individual or to safeguard an important public
interest …’
[142] The passages which I have quoted from
Garcia Alva v Germany (2001) 37 EHRR 335 state very clearly the
strength of the imperative requiring the detained person to be afforded
sufficient knowledge of the case against him if a decision on his continued
detention is to satisfy the requirements of art 5(4). The common feature of the three ECtHR
decisions on which the appellant relied was
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Appeal dismissed.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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