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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wakenshaw, R (On the Application Of) v Secretary Of State For Justice [2018] EWHC 2089 (Admin) (07 August 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/2089.html Cite as: [2018] EWHC 2089 (Admin), [2018] WLR(D) 548 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen on the application of PAUL WAKENSHAW |
Claimant |
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- and – |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
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- and – |
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PAROLE BOARD OF ENGLAND AND WALES |
Interested Party |
____________________
Kate Gallafent QC & Jason Pobjoy (instructed by GLD) for the Defendant
Tom Cross (instructed by GLD) for the Interested Party
Hearing date: 26 July 2018
____________________
Crown Copyright ©
Mr Justice Mostyn:
a) The Parole Board remains sponsored by the Ministry of Justice. As the Ministry is an invariable party to proceedings before the Board, it cannot be said that there is an appearance of fairness where the Ministry sponsors the Board.
b) The process of appointment to the Board is flawed.
c) Tenure once appointed is too short and too precarious.
d) The power of the Secretary of State to give directions to the Board impugns its independence.
a) failed satisfactorily to perform his/her duties; or
b) become for any reason incapable of carrying out his/her duties; or
c) been convicted of any criminal offence; or
d) conducted himself/herself in such a way that it is not fitting that he/she should remain a member; or
e) acted in contravention of the Board's code of conduct.
a) has failed without reasonable excuse to discharge the functions of his or her office for a continuous period of at least three months; or
b) has been convicted of an offence; or
c) is an undischarged bankrupt; or
d) is otherwise unfit to hold his office or unable to discharge its functions.
Although I was told at the hearing that these revised terms were generic and would have applied to the appointment of all panel members, subsequent investigations have shown that this is not the case. Remarkably, the terms of appointment have remained exactly as they were at the time of the Brooke case (see para 14 above), and which were a key reason leading to the declaration that those provisions for tenure failed the test for objective independence. I was told that the failure to amend the terms was an "oversight" and that:
"… the Ministry of Justice will, as a matter of urgency, consider with the Parole Board whether (a) the terms of appointment for all current Parole Board Members should be amended, so that they reflect the terms of appointment for the previous and forthcoming Parole Board Chair; and (b) ensure that the terms of all future appointments reflect the terms of appointment for the Parole Board Chairs."
"30. The Justice Secretary asked to see me at about 4.30 that afternoon. The meeting lasted about 15 or 20 minutes. I met him on my own. He was accompanied by one other person I did not recognise. The Justice Secretary told me he thought my position was untenable. I told him I did not think it was. We discussed this for a few minutes. I was not clear why he reached that conclusion. I told him I thought it was his job to protect judicial decision-making. He told me twice that he did not want to get "macho" with me. I am certain he used that precise word twice and I remember it because I thought it was an odd phrase to use. I understood it to be a clear threat.
31. I was quite clear I did not have an option to remain as Chair of the Parole Board although I wanted to do so and so I agreed to resign. We discussed how any announcement should be made. He suggested I should explain I have volunteered to resign. I said I wanted to make it clear I had not resigned voluntarily and that I believed I was still capable of leading the Parole Board.
32. I returned to the Parole Board office, drafted a resignation letter and sent it to the Justice Secretary that evening. I did not seek or receive any financial settlement."
"[Nick Robinson]: But you effectively sacked the guy who was the head of the Parole Board, Nick Hardwick, he said, 'I did not resign willingly, I resigned because the Justice Secretary' – you – 'said I had no choice.' So once again officials pay the price.
[The Secretary of State]: Well, I think in that case what Worboys has revealed is although there were many good things that were going on at the Parole Board there were a number of problems, and that requires a more fundamental review of the Parole Board rules and my belief was that required new leadership in the Parole Board."
It can be seen that, if not explicitly then certainly implicitly, the Secretary of State accepted that he had "effectively sacked" the Chair of the Parole Board.
"That the period of appointment (three or four years, renewable for three or four years) of Parole Board members coupled with the power of the Secretary of State to remove a member if he is satisfied that he or she has failed without reasonable excuse to discharge the functions of his or her office for a continuous period of at least three months, or is unable to discharge the functions of the office, without recourse to any procedure or machinery to determine the merit of a decision to remove him or her on one or other of these grounds, means that the provisions for tenure of Parole Board membership fail the test of objective independence."
Note 1 rofessor Hardwick was appointed Chair in March 2016. He was a non-judicial Chair. His predecessors Sir David Calvert-Smith and Sir David Latham were appointed respectively in 2012 and 2009 immediately following their retirement from the High Court bench. The appointment procedure then in force was that a judicial Chair was nominated by the Lord Chief Justice, and then confirmed by the Secretary of State.
[Back] Note 2 On 15 January 1641 Charles I "condescended" to a petition from the Long Parliament praying that, for all judges, tenure during good behaviour be substituted for that during pleasure. [Back] Note 3 These and many other cases are discussed in C. H. McIlwain’s monographThe Tenure of English Judges: The American Political Science Review Vol. 7, No. 2 (May 1913), pp. 217-229.
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