R (BROOKE); R (O'CONNELL); R (MURPHY) v PAROLE BOARD and ANR

R (BROOKE); R (O'CONNELL); R (MURPHY) v PAROLE BOARD & ANR

Last Updated: 3:53am BST 21/09/2007

Queen's Bench Division (Admin)
Hughes LJ, Treacy J
September 7, 2007

Bias - Fairness - Parole Board - Right to independent and impartial tribunal - Relationship of sponsorship between Parole Board and Ministry of Justice - Objective independence - Apparent bias - Executive non-departmental government body - Release on licence - Recall - Indefinite term prisoners - Appointment of members - Security of tenure - Rules of procedure - Directions for decision making - Funding - s. 239 Criminal Justice Act 2003 - Art. 5(4) European Convention on Human Rights 1950

FACTS

The claimant prisoners applied for judicial review alleging that the structure of the Parole Board and the way that it was controlled by the secretary of state were such that it did not enjoy the independence from the executive necessary for a court under the European Convention on Human Rights 1950 Art. 5(4). The board was constituted under the Criminal Justice Act 2003, s. 239. Its status was that of an executive non-departmental public body operating under the sponsorship of the Ministry of Justice. There were two parties to each Parole Board hearing: the secretary of state and the prisoner whose liberty was at stake. It was accepted that Parole Board decisions relating to the release on licence of indefinite term prisoners and decisions to recall from licence and re-release engaged the prisoner's rights under Art. 5(4) of the Convention. In order to establish the required independence for a court under Art. 5(4) it was necessary to have regard to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the appearance of independence. Independently of the Convention the common law rule of procedural fairness also required an absence of apparent bias. The prisoners submitted that the position of the board failed to satisfy the test of independence considering the appointment of members by the secretary of state, the terms of their tenure, the particular position of probation officer members who remained departmental employees, the rules of procedure made by the secretary of state, the directions for decision making made by the secretary of state, funding by the secretary of state, the consequences of sponsorship generally, and the absence of the appearance of independence. The secretary of state contended that neither separately nor together did any of those features detract from the board's essential independence in fact.

ISSUE

Whether the position of the Parole Board failed to satisfy the test of objective independence.

HELD (applications granted in part)

(i) The relationship of sponsorship between the ministry and the board was such as to create what objectively appeared to be a lack of independence, and to cause the sponsoring department sometimes to treat the board as part of its establishment. That had led to inadequate protection for the security of tenure of members. It had also led to documented examples of the use of the powers of the department which had not been consistent with the need to maintain the board's objective independence; those had been powers of funding, of appointment and to give directions, R (Girling) v Parole Board [2006] EWCA Civ 1779, [2007] 2 WLR 782 considered. The practice of regular confidential meetings between the board and the department, as one party to its decisions, and the appearance given by the integration of the board with the department for accommodation and for electronic communications might not, alone, be inconsistent with the necessary demonstration of objective independence but, taken together with the other incidents of sponsorship, they were. For those reasons the arrangements for the Parole Board did not sufficiently demonstrate its objective independence of the secretary of state, as required by both English common law and Art. 5(4) of the Convention, Weeks v United Kingdom (A/114) (1988) 10 EHRR 293 and Hirst v United Kingdom (40787/98) Times, August 3, 2001 considered.

(ii) Three of the prisoners were entitled to declarations that the Parole Board did not meet the requirements of the common law and of Art. 5(4) for a court to have demonstrated objective independence of the executive and of the parties. The case of one prisoner was adjourned for hearing by a fresh court. The decisions made in the cases of two prisoners would not have been different if the structure of the board had not had the flaws which had been identified. The decisions in their cases were not quashed. In the case of one of the two, the period of his recall had in any event expired.

Sam Grodzinski (instructed by Irwin Mitchell) for the claimants Brooke and Ter-Ogannisyan. Phillippa Kaufmann (instructed by Bhatt Murphy) for the claimant O'Connell. Hugh Southey (instructed by Stephensons, West Midlands) for the claimant Murphy. Michael Fordham QC, Gemma White and Ben Jaffey (instructed by the Treasury Solicitor) for the Parole Board. Monica Carss-Frisk QC and Mark Vinall (instructed by the Treasury Solicitor) for the Lord Chancellor & Secretary of State for Justice.