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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chiswick, R (on the application of) v Secretary of State for Justice & Anor [2024] EWHC 1223 (Admin) (22 May 2024) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2024/1223.html Cite as: [2024] EWHC 1223 (Admin), [2024] WLR 5114, [2024] WLR(D) 248, [2024] 1 WLR 5114 |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
B e f o r e :
____________________
THE KING (on the application of MICHAEL CHISWICK) |
Claimant |
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- and - |
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(1) SECRETARY OF STATE FOR JUSTICE (2) PAROLE BOARD FOR ENGLAND & WALES |
Defendants |
____________________
Scarlett Milligan (instructed by GLD) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 23.4.24
____________________
Crown Copyright ©
FORDHAM J:
Introduction
I am not able to make comment upon Mr Chiswick's suitability for release into the community or continuing suitability for closed conditions.
The COM Report was written by the new COM, Christy Shaw. It was dated 5 December 2022. It included this:
Following changes to legislation issued in June 2022, I am no longer able to comment on likelihood of compliance or manageability of risk in the community. I am also no longer able to make a recommendation as to the outcome of the Oral Hearing and Parole Board Decision.
So, the two Directed Reports were expressed as not "able" to answer a key question which the Panel had directed those report-writers to answer.
The Analysis in Bailey
Agreed Issues
(1) Whether the Claimant's parole review suffered procedural unfairness at common law and/or in breach of the requirements of Article 5(4) ECHR? Specifically whether there was a breach of the obligation that the judicial body enjoy objective actual and apparent independence of the executive and of the parties, and/or that there be an adversarial quality and equality to the process, because relevant evidence was unlawfully prohibited or prevented from being received by the panel of the Parole Board determining his case by the SSJ? (2) Whether the Claimant is entitled to a declaration to record the fact that his parole review was rendered procedurally unfair by the unlawfulness identified by the Divisional Court in Bailey? (3) Whether the decision of 13 March 2023 should be quashed in light of the Court's conclusion as to issue (1)? (4) If the Court finds that the conduct of the parole proceedings involved a violation of Article 5(4) ECHR, what is the appropriate just satisfaction for the particular breach (and its consequences) in all the circumstances? (5) Whether pursuant to section 31(2A) Senior Courts Act 1981 the Court must refuse to grant relief on the application for judicial review on the basis that it is highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred. (6) The appropriate order as to costs following determination of liability.
The List of Issues and Procedural Flexibility
Common Ground
Vitiating Impact: What is the Question?
Vitiating Impact: Analysis
The Legally Sufficient Points
the Parole Board's panels could and generally would issue directions requiring the provision of reports or update reports containing (amongst other things) recommendations based on the author's assessment of risk as it did in the claimants' case and it could and typically would ask questions testing those recommendations during oral hearings. The Board clearly recognises that it must come to its own conclusions on whether the test for release or transfer is met in any individual case; at the same time, and consistently with this, it is the Board's experience that the recommendations of experts can form a valuable part of the evidential matrix, including (but not only) when it is required to make a decision on the papers.
where a court considers that procedural unfairness has been established, it must ask itself whether the unfairness was material and whether, but for that procedural unfairness, the outcome might have been different.
What I cannot accept is the submission that follows:
The SSJ submits that the continued provision of all risk-related information (only with the absence of an opinion on whether the statutory release test was met) renders it inevitable that the Board would have reached the same decision on risk and the statutory release test, having regard to its expertise over and above individual witnesses.
In my judgment, it is impossible to say that the Bailey Unlawfulness was immaterial, viewed in terms of outcomes. I am satisfied that the outcome might have been different. In this case, it does not matter who bears the onus. What the Justice Secretary is describing as the "only absence" is significant.
The Reinforcing Points
it will be for the Parole Board to confirm whether its own decision making on the statutory release test would have been altered by the view of an individual report writer as to the statutory release test. If the answer to that question is negative, then the outcome would not have been substantially different
No confirmation has come from the Parole Board. The Parole Board, entirely properly, has not taken the position that it is able to, or should, give any such confirmation.
I note that you recently provided reports and attended the oral hearing of [the Claimant]. [He] has lodged a legal challenge against the Secretary of State, partly due to the fact that you were unable to provide recommendations to the Parole Board. The Government [Legal] Department (GLD), who are handling the claim, have asked me to find out what recommendation you would have provided to the Panel had you been able to do so? If you are able to provide this information today or tomorrow, it would be greatly appreciated.
There is no suggestion that the three professional witnesses were able to provide recommendations. None of them replied to say: "but I was able to"; "the Panel asked me, and I answered". Two did respond, and each confirmed that they were unable to give their view on suitability for release. This corresponds to what the Parole Board told the Divisional Court (Bailey §96).
I would have recommended release on licence to an Approved Premises. This is because he had completed the one-to-one psychology intervention and received positive feedback from this. We know from his previous times on licence that reoffending is not imminent with him and he tends to do well gaining accommodation work. Regular checking of phone and Internet history could identify if he was accessing sex/dating related sites. I therefore feel a period in open conditions would not be necessary.
The PP replied:
I can offer that I would have recommended release on licence to an Approved Premises
each of the witnesses struggled to answer some direct questions because they felt legally prevented from doing so, and some declined to answer some questions from the panel or his legal representative concerning the Claimant's suitability for a progressive move or for release. The psychologist was repeatedly asked to answer questions but repeatedly declined.
This corresponds to the evidence which the Parole Board gave the Divisional Court, as to the practical consequences of the Bailey Unlawfulness (Bailey §96):
The Board's experience has been that witnesses understand the guidance to prevent them from providing evidence concerning their views or recommendations, and have refused to give that evidence even where panels have requested or directed that they do so
The Response Points
Remedy
Just Satisfaction
Permission-Stage Candour
i) The Justice Secretary resisted permission for judicial review, including on non-materiality grounds, in Summary Grounds of Resistance (14.7.23), with which 350 pages of materials were filed. GLD, who were handling these proceedings for the Justice Secretary, had asked Mr Martin to send his email (11.7.23) asking the report-writers what recommendation they would have provided had they been able to do so, seeking this information today or tomorrow. The POM responded (12.7.23), stating contingently that she would have recommended release. This response was not passed to GLD to be considered for disclosure. The PP then responded (18.7.23), stating contingently that she would have recommended release. This response too "was not passed to GLD to be considered for disclosure".
ii) The Claimant made applications (20.7.23 and 25.7.23), because the POM had told him that she had been emailed asking what her recommendation would have been. He received responses from the POM (25.7.23) confirming that she could not disclose the recommendations and from the Psychology Department (27.7.23) recording that the PP had emailed "recommending release". Mr Bridger, the Claimant's solicitor, filed a witness statement (17.8.23) referring to this material; and emailed the POM (17.8.23). It was only after the Claimant indicated to the Justice Secretary's team that he was aware of the email question having been asked that the emails were passed to GLD to be considered for disclosure.
iii) The POM replied to Mr Bridger (29.8.23) setting out the contents of her emailed response to Mr Martin (from 12.7.23). The same day, the Justice Secretary filed a response to Mr Bridger's witness statement (29.8.23) exhibiting the chain of emails between Mr Martin and the three witnesses (with redactions whose unwitting effect was to emasculate the fact that the COM had also been asked). Mr Bridger filed another witness statement (30.8.23) and permission was considered on 7.9.23 and granted.
Conclusion
Payment on Account of Costs