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OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Roberts (FC) (Appellant)
v.
Parole Board (Respondents)
ON
THURSDAY 7 JULY 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Woolf
Lord Steyn
Lord Rodger of Earlsferry
Lord Carswell
Counsel
Appellants:
Tim Owen QC
Alison Macdonald
(instructed by Bhatt Murphy)
Respondents:
Michael Fordham
(instructed by Treasury Solicitor)
Interested party
The Secretary of State for the Home Department
James Eadie
Kate Gallafent
(Instructed by Treasury Solicitor)
Interveners
Keir Starmar QC
Eric Metcalfe
(Instructed by Justice)
Hearing dates: 20 and 21 April 2005
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Roberts (FC) (Appellant) v. Parole Board (Respondents)
[2005] UKHL 45
LORD BINGHAM OF CORNHILL
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 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 article 5 of the European Convention on Human Rights (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.
- 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.
- 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.
- 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.
- 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 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.
- 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.
- 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.
- 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: [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.
- 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: [2004] EWCA Civ 1031, [2005] QB 410.
- 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 specially appointed advocate, and did not read or receive submissions on the sensitive material.
- 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: Girling v Parole Board [2005] EWHC 5469 (Admin), 8 April 2005, para 19) risk to life and limb provides the sole ground for continued detention: R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, paras 8, 29. The second right derives from article 5(4) of the European 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.
- 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 section 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 (section 28(6)(b)) it is "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
- The Board is not in any ordinary sense a court. But it is accepted as being a court for purposes of article 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: Weeks v United Kingdom (1987) 10 EHRR 293, para 62. It is impartial (Weeks, para 62), 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, para 61), as it is when resolving challenges to revocation of parole licences (R (West) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350, para 1. In contrast with the position which obtained in the past (Weeks, 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.
- 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 article 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 R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 560. The House referred to this passage with approval in R (West) v Parole Board [2005] 1 WLR 350, para 27. The European Court has ruled to similar effect in cases such as Bouamar v Belgium (1987) 11 EHRR 1, para 60 and Chahal v United Kingdom (1996) 23 EHRR 413, 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] 1 WLR 906, 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) [2003] 1 AC 681, 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 (No 2) [2001] UKHL 25, [2002] 1 AC 45, paras 91, 94, 99. In R v H [2004] UKHL 3, [2004] 2 AC 134, para 23, 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, para 70, and again in Van Mechelen v Netherlands (1997) 25 EHRR 647, 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 and McElduff v United Kingdom (1998) 27 EHRR 249, para 76, the Court was mindful of national security considerations. In Jasper v United Kingdom (2000) 30 EHRR 441, 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.
- 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: R (West) v Parole Board, above, paras 38-41, 56, 76, 90, 91. The criminal limb of article 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 (West) v Parole Board, above, para 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, above, para 33,
"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."
- The ordinary principle governing the conduct of judicial enquiries in this country is not, in my opinion, open to doubt. In Re K (Infants) [1963] Ch 381, 405-406, Upjohn LJ expressed it thus:
"It seems to be fundamental to any judicial inquiry that a person 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 ([1965] AC 201, Lord Devlin referred at p 237 to "the fundamental principle of justice that the judge should not look at material that the parties before him have not seen", and at p 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 upon 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) [1996] AC 593, 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, at p 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] QB 740, 751, per Taylor LJ (disclosure of reports to the Board), whose reasoning was adopted by the House in Doody, above, p 562, and R v Secretary of State for the Home Department, Ex p Hickey (No 2) [1995] 1 WLR 734, 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 measures directions for the protection of juvenile witnesses in R (D) v Camberwell Green Youth Court [2005] UKHL 4, [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 para 49 of the opinion of Baroness Hale of Richmond, with which all members of the House agreed.
- The European Court has affirmed the importance of this principle in criminal cases governed by article 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, para 29; Kostovski v Netherlands (1989) 12 EHRR 434, para 41; Brandstetter v Austria (1991) 15 EHRR 378, paras 66-67; Edwards v United Kingdom (1992) 15 EHRR 417, para 36; Van Mechelen v Netherlands (1997) 25 EHRR 647, para 51; Lucà v Italy (2001) 36 EHRR 807, para 39; Garcia Alva v Germany (2001) 37 EHRR 335, para 39. In non-criminal article 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, para 51; Bouamar v Belgium (1987) 11 EHRR 1, para 60; Weeks v United Kingdom (1987) 10 EHRR 293, para 66; Megyeri v Germany (1992) 15 EHRR 584, para 23; Hussain v United Kingdom (1996) 22 EHRR 1, paras 58-60; Al-Nashif v Bulgaria (2002) 36 EHRR 655, 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 and McElduff , above, 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".
- 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 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 ("The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates", Seventh Report of Session 2004-05, vol 1, HC 323-1, 3 April 2005, 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 Department [2004] EWCA Civ 324, [2004] 2 All ER 863, the Court of Appeal acknowledged in para 13 that a person appealing to SIAC, in much the same position as the appellant would be under the proposed procedure, was "undoubtedly under a grave disadvantage" and, in para 16, that "To 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, 426, the specially-appointed advocate would inevitably be "taking blind shots at a hidden target".
- In view of what the European Court in Garcia Alva, above, 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 article 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": Stafford v United Kingdom (2002) 35 EHRR 1121, para 68. If the procedure proposed is fully adopted, the appellant's rights under article 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 article 5(4). The practice of the European Court is to consider the proceedings in question as a whole, including the decisions of appellate courts: Edwards v United Kingdom, above, 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 article 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 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, above, 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 article 5(4).
- 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 section 59 of the Criminal Justice Act 1967, and was continued in existence by section 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 section 28, subsection (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 section 32(4) above. Schedule 5 to the 1991 Act provided in para 1(2)(b), under the hearing "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."
Section 32 of and Schedule 5 to the 1991 Act were repealed and replaced by section 239 of and Schedule 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.
- The House was referred to Parole Board Rules made by the Secretary of State under section 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 section 28 of the 1997 Act was amended by section 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 rule 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 rule 6, and a right for the prisoner to call witnesses and adduce evidence, subject to certain procedural conditions, by rules 7 and 8. The chairman of the panel had power to give directions (rule 9), among them a direction (rule 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 (rule 10) and the hearing was to be at the prison or other institution where the prisoner was detained (rule 12(1). It was provided in rule 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 paragraph (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 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."
- 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) reproduce rule 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 of 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 rule 9 of the earlier rules in relation to the giving of directions, provides in (2)(d) that a direction:
"(d) 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 (rule 14(3)). Rule 15 entitles him to call witnesses if he obtains leave to do so. Rule 18(1) provides that:
"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 rules 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 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."
- 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 Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473, 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 consequent 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 Schedule 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.
- 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 section 32(5) cannot enlarge the powers conferred by the 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 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.
- 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 R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 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: pp 587-590. In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 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.
- 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 United Kingdom (1996) 23 EHRR 413. In para 131 of its judgment in that case the Court referred with approval to a form of judicial control obtaining in Canada, apparently somewhat analogous to the special advocate procedure (although the Court has suspended judgment on the conformity of that procedure with the Convention: Al-Nashif v Bulgaria (2002) 36 EHRR 655, 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. That Act conferred power on the Lord Chancellor to make rules (section 5(1)) and gave express power in section 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 (section 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 Commission's procedures departed from what would ordinarily be required to satisfy natural justice: House of Lords Hansard, 29 July 1998, Col 1587. 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), now in force, lay down detailed provisions governing the withholding of material from the applicant and his legal representative (e.g. rules 10(3), 16(3), 37), the appointment and role of special advocates (rules 34-36), the holding of hearings in the absence of the appellant and his legal representative (rule 43), qualification of the appellant's right to cross-examine opposing witnesses (rule 44(5)) and a qualification of the Commission's duty to give reasons for its decision (rule 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 in para 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.
- 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 paragraph 7) provision for special advocates, and was followed by the Proscribed Organisations Appeal Commission (Procedure) Rules 2001 (S1 2001/443) 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 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 Schedule 3 to the 2000 Act, containing almost identical provisions. The Pathogens Access Appeal Commission (Procedure) Rules 2002 (S1 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 (L16)), 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.
- 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 Schedule 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 Schedule 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 Schedule 3, one of which (para 9(e)) was the treatment of offenders. It was a broad power, extending (section 85(1)(c)) to the amending or repealing of any provision made by or under any Act of Parliament or Northern Ireland legislation. But (section 85(3)) 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. In exercise of this power, by the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) 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 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 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 Schedule 2, the Secretary of State made the Life Sentence Review Commissioners' Rules 2001 (SR 2001/317), which provided in rule 10(8) for conducting parts of the hearing in the absence of the prisoner and his legal representative, in rule 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 rule 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 (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 section 1(4) to make representations 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 representations. 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 section 1(3) and (4) was plainly incompatible with article 5(4) of the Convention: see for example Waite v United Kingdom (2002) 36 EHRR 1001. This decision was made on 10 December 2002. On 13 January 2003 the Secretary of State 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 paragraphs 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.
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 paragraphs 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 section 24 or 76, it was open to the person against whom the claim was made to propose to rely (section 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 section 91, in accordance with rules made by the Lord Chancellor (section 90(2)), which might uphold or quash the certificate (section 90(3)). Section 91(1) established the Tribunal and section 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 (subsections 4(a), 4(b) and 4(c)). Power to appoint such persons was conferred on the Attorney General for Northern Ireland by subsection (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 section 96(6) of the 1998 Act. These rules made provision for the appointment of special advocates (rule 9), the withholding of information from the claimant (rules 10 and 11), the exclusion of the claimant and his legal representative from the hearing (rule 18) and the issue of incomplete reasons (rule 22).
- The first, second and fourth of these Northern Irish instances are consistent with the legislative practice adopted in Great Britain, as briefly summarised in paras 26-27 above. The third instance is different, and the Parole Board placed strong reliance on it. But the 1995 Act 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).
- 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.
- 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 Department v Rehman [2003] 1 AC 153; R v Shayler [2002] UKHL 11, [2003] 1 AC 247; and R v H [2004] UKHL 3, [2004] 2 AC 134. In the first of these cases, an appeal from SIAC, in which a special advocate had appeared, the Court of Appeal received written submissions from a special advocate: see paras 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 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 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.
- 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
My Lords,
Background
- 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.
- 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."
- That issue is one of principle and not confined to the facts of this case; it was so treated before the Court of Appeal (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 Chapter 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.
- 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.
- 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.
- In the very different situation that exists to day, 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.
- 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.
- 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 Convention (in the context of the present appeal, this means article 5(4) as it is accepted article 6 has no application).
- 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 [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 hearing. This was done to avoid a violation of article 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 of Cornhill 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 and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52. As Lord Hope of Craighead pointed out in Montgomery v H M Advocate [2003] 1 AC 641, 673:
'the rule of law lies at the heart of the Convention. It is not the purpose of article 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 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 has however long accepted that some operations must be conducted secretly if they are to be conducted effectively: Klass v Federal Republic of Germany (1978) 2 EHRR 214, 232, para 48
32. The appellants contended that, taken at its narrowest, the principle established by Edwards and Lewis is that it is incompatible with article 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 and Lewis 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."
- 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 H. However, these statements could be even more apposite in the case of the Board. I have already indicated that article 6 does not apply 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.
- 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 a 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.
- 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
- 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.
(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.
(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
"
- 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" (R v Parole Board, Ex p Watson [1996] 1 WLR 906, 916-917 per Sir Thomas Bingham MR). Obviously, as emphasised in R (West) v Parole Board [2005] 1WLR 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".
- 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 [2003] 1 AC 903, 913 para 16 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".
- 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 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.
- 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.
- 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 article 5(4) or domestic law require.
- 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 United Kingdom (2003) 15 BHRC 189). In Stafford v United Kingdom (2002) 35 EHRR 1121, 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" (emphasis added) (para 82). This does not however mean that the prisoner has no rights that have to be respected. As I will explain later both under article 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.
- The Rules are made under Part 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 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
."
- The only other relevant provision of the 1991 Act is paragraph 1(2)(b) of Schedule 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
".
- 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 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. "
- The 1997 Rules and the 2004 Rules are in similar terms. There is, however, a significant difference between rule 6 of the 2004 Rules and its predecessor. Rule 6 provides:
"6. (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 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." (Emphasis added)
- Although the earlier Rules did not contain the qualification that is now contained in rule 6(3) as to the chair of the panel being able to direct otherwise, if there was power to make rule 6 of the 2004 Rules, I would regard the wide unqualified power to give directions contained in the earlier Rules (for example rule 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 section 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 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 section 28.
Specially Appointed Advocates
- 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 a SAA is confined to situations where the SAA can provide additional protection for the prisoner, this is surely a safeguard for the prisoner.
- It was in relation to such a situation that the use of a SAA was encouraged by the ECtHR in Chahal v United Kingdom (1996) 23 EHRR 413. It was this initiative by the ECtHR that resulted in their use in this jurisdiction. Chahal 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 article 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 that the use of confidential material could be unavoidable where national security is at stake (para 131). 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 ECtHR said in Chahal: "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".
- 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 a SAA would not be justified if, in the absence of a 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 Department [2004] 2 All ER 863.
- The use of a 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 a 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.
- The appellant relies on the fact that there is no statutory authority, whether in primary legislation or rules, that authorises the use of a 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 a SAA on a regular basis, whereas the use of a SAA before the Board is wholly exceptional, as is illustrated by this being one of the only two cases where a 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, rule 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 a 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 (27A(3)).
- 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 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 a SAA does not affect the overriding obligation for a hearing to meet the requirements of article 5(4) and of appropriate standards of fairness required by domestic law.
- Before turning to the specific arguments advanced by Mr Owen 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 a SAA would otherwise be used to provide some protection, the prisoner may be deprived of very real assistance.
The Appellant's Core Submissions
- In the course of his argument Mr Owen helpfully identified four core submissions. I will deal with each in turn.
- 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 a SAA, authorisation is implied from the undoubted implicit duty of the Board under section 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 a 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 a SAA being appointed. The legislation and Rules should not be interpreted as preventing the use of a SAA. This is despite the decision of the Administrative Court in R (S) v Waltham Forest Youth Court [2004] EWHC 715 (Admin); [2004] 2 Cr App R 335. In R (D) v Camberwell Green Youth Court [2005] 1 WLR 393, Baroness Hale of Richmond expressed reservations 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.
- 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 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 a 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.
- 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 a SAA is not detrimental to any legal right of the prisoner. This is because, as I have already explained above, the appointment of a 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 a SAA. The submission refers to a special advocate "procedure" but I here refer, as does the issue, to the appointment of a 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.
- 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)."
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 a 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.
- 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'] 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.
- 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.
- 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, Rowe and Johnson [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.
- 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 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 a SAA should be used can impose conditions as to how they should be used.
- 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 public interest immunity which are not confined to national security.
- 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 para 25. 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 article 5(4).
- The interpretation of current rule 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 section 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 rule 6 would mean the rule would at least in part be ultra vires. It would also inevitably result in conflict with article 5(4) if it was applied in a manner that involved a fundamental breach of a prisoner's rights to a fair hearing.
- 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
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