Sir Brian Leveson P, Mr Justice Jay and Mr Justice Garnham:
- The
Parole
Board
of England and Wales ("the
Parole
Board")
was established by s. 59 of the Criminal Justice Act 1967 in order, for the first time, to
recommend
to the Secretary of State the
release
on licence of those serving determinate terms of imprisonment having served not less than one third of the sentence imposed or twelve months whichever expires the later. Over the years, its powers and its
responsibilities
have undergone many changes and, following the expiry of the term prescribed either by the legislation or the court as the minimum term to be served for punishment and deterrence, it is now (since 1997)
responsible
for directing the
release
of those sentenced to indeterminate and certain determinate terms of imprisonment if it is satisfied that it is no longer necessary for the protection of the public that they be detained.
- There is no
right
of appeal against a decision of the
Parole
Board
although any can be the subject of challenge by way of judicial
review
on public law grounds which, in this case, are designed to adjudicate upon the legality of decisions
reached
by an expert body entrusted by Parliament with the function of undertaking the
relevant
evaluative assessment,
rather
than upon the merits of that evaluation. There have been many such challenges brought by prisoners on the basis either that the procedure undertaken by the
Parole
Board
has been unfair or that, for some other
reason,
a decision not to
release
is wrong.
- As far as we are aware, this series of cases is unique for a number of
reasons.
First, never before has a decision to direct the
release
of a prisoner been challenged. Because the only parties to a hearing before the
Parole
Board
are the Secretary of State and the prisoner, it also follows that never before has judicial
review
been mounted by anyone other than a party to the proceedings. Second, there has never previously been a challenge to
Rule
25 of the
Parole
Board
Rules
2016 (S.I. 2016 No 1041) ("
Rule
25") prohibiting the making public of information about proceedings before the
Parole
Board
or the names of persons concerned in the proceedings. The novelty of these challenges serves to emphasise its wholly exceptional features.
- The background can be shortly summarised. On 13th March 2009, John
Radford,
then known as John Worboys but hereafter
referred
to by his chosen name, was convicted after trial in the Crown Court at Croydon of 19 serious sexual offences committed between October 2006 and February 2008 involving twelve
victims.
On 21st April 2009, Penry-Davey J sentenced him to an indeterminate sentence for public protection specifying a minimum term of imprisonment of 8 years' (being the equivalent of a determinate sentence of 16 years'), less time spent on
remand.
That period expired on 14th February 2016 after which Mr
Radford
was eligible to be
released
but only in the event that the
Parole
Board
was satisfied that it was no longer necessary for the protection of the public for him to be held in prison.
- On 26th December 2017, the
Parole
Board
determined that incarceration was no longer necessary in Mr
Radford's
case and directed his
release:
the
Parole
Board's
decision, including the detailed
reasons
for it, is
referred
to as "the
release
direction". Thus, Mr
Radford
is entitled to be
released
into the community, on licence subject only to the jurisdiction of this court by way of judicial
review.
- Publication of the news of the decision generated considerable publicity and, shortly thereafter, two women (
DSD
and NBV) who had succeeded in litigation against Mr
Radford
personally and, separately, against the Metropolitan Police intimated a claim for judicial
review.
The difficulty for those considering such proceedings was the fact that they did not know the basis for the decision or the evidence on which the
Parole
Board
relied.
- In the event, three sets of judicial
review
proceedings have been instituted. The first in point of time were brought by the Mayor of London ("the Mayor") against the
Parole
Board
as Defendant, naming
DSD
and NBV, the Secretary of State for Justice ("the Secretary of State") and Mr
Radford
as Interested Parties. The Mayor contends that the
release
direction was unlawful on Wednesbury grounds, and that the
Parole
Board's
failure to promulgate
reasons
accessible to those with an interest in that decision, including himself and the
victims,
was unlawfully brought about by
Rule
25 which was, he contended, ultra
vires
the enabling statute. Although nothing turns on this, the Secretary of State should have been named as a Defendant to these proceedings because he was
responsible
for
Rule
25; the
Parole
Board
had no discretion to depart from it.
- The second set of proceedings were brought by
DSD
and NBV against the
Parole
Board
and the Secretary of State for Justice, with Mr
Radford
as an Interested Party. NBV is one of the 12
victims
who gave evidence at Mr
Radford's
criminal trial;
DSD
was not although she had obtained a settlement in proceedings brought against him (without admission of liability). The nature of their challenge is essentially the same as the Mayor's although it differs to some extent in its exact formulation.
- The third proceedings were brought by News Group Newspapers Ltd against the
Parole
Board
and the Secretary of State, with the other individuals and entities whom we have already named being Interested Parties. This challenge is limited to the
vires
of
Rule
25; its precise formulation diverges slightly from that advanced in the other cases.
- On 26th January
2018,
Supperstone J made an Order staying Mr
Radford's
release
pending the hearing of the applications for permission to apply for judicial
review,
and anonymising the identities of
DSD
and NBV. On 7th February
2018,
given that the liberty of Mr
Radford
was at stake, the challenges came before the Divisional Court (Sir Brian Leveson P and Garnham J), at which, initially, Mr
Radford
was unrepresented although, during the course of the hearing, he instructed a solicitor who was able to advise him. In the event, there was no opposition by the
relevant
Defendant or any Interested Party to the standing either of
DSD
and NBV or of the Mayor to bring their claims, although, in
relation
to the Mayor, the Court ordered that the issue of standing should be
reserved
for consideration at the substantive hearing. Furthermore, permission was granted in each case and, with the consent of all parties, the Court ordered that the
release
direction together with the dossier of evidence and documents before the
Parole
Board
("the dossier"), with appropriate
redactions,
should be provided to
DSD,
NBV and the Mayor upon the giving of undertakings as to confidentiality. In particular, the names of
reporting
officers and psychologists have been
replaced
by acronyms which we have used throughout this judgment.
- In the circumstances, it is convenient to address these
various
challenges in one judgment,
recognising
that the
vires
issue in
relation
to
Rule
25 arises not in the abstract but in the specific context of the
Parole
Board's
inability to communicate any information
relevant
to the
release
direction, still less a gist or synopsis of the
reasons
for it. However, it is important to underline that these are otherwise unconnected challenges because even if
Rule
25 is ultra
vires,
it is not suggested that this would have impact on the legality or otherwise of the
release
direction.
- Furthermore, it is inevitable that this judgment will place into the public domain far more information
relating
to the
release
direction than any intra
vires
rule
would
require.
Contrary to the position advanced by the Secretary of State, for
reasons
which we shall elaborate, we do not consider that this fact serves to
render
the ultra
vires
challenge academic. In the circumstances, we will seek to preserve the confidentiality of matters which it is unnecessary to place in the public domain to enable our
reasons,
and the bases for those
reasons,
fully to be understood.
The Facts
The Material before the
Parole
Board
- Mr
Radford,
a man of previous good character, was convicted of one count of
rape,
four counts of sexual assault, one count of attempted sexual assault, one count of assault by penetration and twelve counts of
administering
a substance with intent. These index offences
related
to twelve
victims,
aged between 19 and 33, and to crimes committed in the period of 18 months between October 2006 to February 2008.
- There was no account from the trial of the circumstances of the offending contained within the dossier. Neither were the sentencing
remarks
of Penry-Davey J in the dossier (although it is conceded that they should have been). These
remarks,
delivered, as they were, after a trial, did not detail the precise circumstances of Mr
Radford's
offending, but the following passages are
relevant:
"As somebody with an enduring and powerful interest in sexual matters, you saw the opportunity through cab driving of exploiting that element of trust and, through the use of alcohol and drugs, of sexually abusing young women who had trusted you to take them home safely at night as it was your duty in the circumstances to do. You developed and perfected a web of deceit that was sufficient to ensnare young, intelligent and sensible women who had enjoyed a night out and whose only mistake, as it turned out, was to get into your cab late at night. It was perhaps the unlikely story about the lottery, backed up by the availability of substantial cash to prove it, and your persistence, that persuaded those young women to join you in a glass of champagne, often
reluctantly,
and it was that that sealed their fate because you were prepared to, and did, add sedative drugs to achieve your ends. A further consequence of the sophistication of your approach was that your
victims
would have difficulty in
remembering
what had happened.
…
Both
reports
[pre-sentence and psychiatric] identify you as a high continuing
risk
to women and as a significant
risk
of
re-offending."
- The pre-sentence
report
dated 17th April 2009 was in the dossier and added little to the sentencing
remarks.
However, the
report
set out limited further information in
relation
to the most serious of the 19 offences:
"Several of the
victims
recall
feeling extremely disoriented after consuming alcohol and for some their
recollection
of events ends there. For five others, they awoke in the taxi to [Mr
Radford]
sexually assaulting or attempting to sexually assault them. Another of the
victims
recalls,
in the form of flashbacks, being
raped
by [Mr
Radford].
…
… several of the
victims
were seriously sexually assaulted and all were
administered
a substance designed to
render
them incapable of staying conscious or, where semi-conscious, incapable of fighting off [Mr
Radford's]
advances.
…
[Mr
Radford's]
offences were meticulously pre-planned …"
- The psychiatric
report
from the trial was also not in the dossier but the inference must be that Mr
Radford
was not diagnosed as suffering from any mental illness or psychological disorder; had it been otherwise, Penry-Davey J would have
referred
to it. Mr
Radford's
offending was associated with the intake of excessive alcohol, although he denied to the Probation Officer that he ever drove over the limit.
- Another feature of Mr
Radford's
case was that at the time he qualified to drive a licenced taxi cab in 1996, he was working as a stripper at hen nights, in gay bars and at swingers' parties, a
role
from which he
retired
in 1999. This line of work placed him, in the words of the Probation Officer, "in sexually charged environments".
- Mr
Radford's
version
of events, both before the jury and the Probation Officer, was one of denial. According to the pre-sentence
report:
"… [Mr
Radford]
denied committing any of the offences. He does, however, acknowledge a good deal of the circumstances surrounding the offences. For instance, he told me during interview that he actively sought to engage female passengers in conversation in his taxi cab. He did this by telling them, falsely, that he had won money through gambling that night and by showing them a bag filled with cash … When challenged he denied that his objective in engaging the women in conversation was to have sexual
relations
with them. He insisted that he enjoys female company and simply wanted companionship. [Mr
Radford]
said that he has been using this method of "breaking the ice" with women since 2002/2003.
…
In addition, [Mr
Radford]
acknowledges offering alcoholic drinks to his passengers, stating that he saw a fellow taxi driver offering drinks to passengers and thought it was a good idea …
…
When discussing the
rape
offence, [Mr
Radford]
was adamant that sexual contact with the
victim
was consensual, non-penetrative and initiated by the
victim.
The explanation he offered for the DNA evidence found on the
victim's
clothes was that while performing oral sex on the
victim
he ejaculated in his tracksuit bottoms. He insisted that his semen must have transferred from his hands to her clothes. He was adamant that the DNA evidence found on the
vibrator
that the police located in the car got there, not through a sexual assault, but through the
victim
touching it with her hand when he showed it to her in his taxi … [Mr
Radford]
denied any physical contact with the other assault
victims."
The date
range
2002/3 is significant in the context of the complaints made by
DSD
and we shall
return
to it.
- On 28th May 2009, Mr
Radford
was transferred to HMP Wakefield where he has
remained
until
very
recently,
and at all material times, a Category A prisoner. He applied for permission to appeal against his conviction: this was
refused
by the Court of Appeal (see [2010] EWCA Crim 1986). Thereafter, he pursued an application for his case to be considered as a miscarriage of justice by the Criminal Cases
Review
Commission ("the CCRC"). In June 2013 a psychologist noted the fact that Mr
Radford
maintained his innocence and, also, his lack of engagement in any offence focussed programmes. It was concluded that there was insufficient information about the build up to his offences to be able to conclude that there was a
reduction
in
risk.
In January 2015, another psychologist noted that Mr
Radford's
position
remained
the same and that he "is in the early stages of personal change". The conclusion was, as before, that there was no
reduction
in
risk.
- On 18th May 2015, approximately 9 months before the expiry of his tariff (i.e. the minimum term that he had to serve before being eligible to be
released
on
parole),
Mr
Radford
admitted his
responsibility
for the index offences and withdrew his application to the CCRC. In July 2015, he gave the following explanation for this change of heart to a psychologist:
"[Mr
Radford]
said that he had "always felt guilty"
regarding
his offences and that these feelings had been intensified by
recent
media coverage of historical abuse cases. [Mr
Radford]
also thought his
victims
had been "fair" with
regard
to their accounts of his offending and
recent
compensation claims and as such felt as though he had to "given them their due" and "say thank you" by taking
responsibility
for his offending. He also said that he had maintained hope that his convictions would be overturned, and that this expectation now felt unrealistic; which was a further motivation to take
responsibility
for his sexual offending … [Mr
Radford]
appeared nervous throughout, on occasions becoming tearful and
regularly
telling me that he wanted to be honest and wanted to talk about "everything"."
- It is clear that this explanation was taken as genuine and the psychologist
recommended
that Mr
Radford
commence work on the Sexual Offender Treatment Programme ("SOTP"). In November 2015, he completed the SOTP Foundation programme and, in October 2016, the Core programme.
- Meanwhile, on 10th September 2015, the
Parole
Board's
first post-tariff
review
did not
recommend
release
or transfer to open conditions. It concluded that the level of
risk
posed by Mr
Radford
remained
too high to be managed in other than closed conditions. The effect of s. 28(7) of the Crime (Sentences) Act 1997 ("the 1997 Act") is that Mr
Radford
could not
require
the Secretary of State to
refer
his case to the
Parole
Board
until a further two years had expired.
- In early 2017 preparations were set in train for Mr
Radford's
next
Parole
Board
review.
In due course a number of
reports
were provided.
- In February 2017, an OASys
risk
assessment carried out by the National Offender Management Service ("NOMS") concluded that Mr
Radford
was a high
risk
of serious harm if
released
but at low
risk
of
reoffending.
Mr
Radford
told the author, OS2, that he "had to show
victim
empathy and let them know how sorry he was, and that he hoped that they would be OK, and that they could get on with their lives". In a
report
given on 28th February 2017 OS2 concluded that Mr
Radford
was not a suitable candidate for
release
or a move to open conditions.
- On 12th April 2017, Mr
Radford's
offender manager ("PO2") completed a
Parole
Assessment
Report
Offender Manager
report
("PAROM 1
report").
Mr
Radford
described how he committed his first offence after he planned to spend the weekend with his then ex-partner, M1. Later in the
report
Mr
Radford
stated that his
relationship
with M1 took place between 2001 and 2005, although after they separated he kept in contact and had hopes of
reconciling.
When discussing his offences, Mr
Radford
stated in
respect
of the
rape
that he had only placed his penis inside the
victim's
vagina
for approximately four seconds and had
removed
it when asked to do so. In
respect
of the assault by penetration, he stated that he only used the
vibrator
under the
victim's
skirt and over her legs, and did not put it inside her
vagina.
At the same time, he claimed that he did not want to minimise the offence.
- PO2 was concerned about aspects of Mr
Radford's
attitude, and lack of full insight, and concluded that "this is the start of [Mr
Radford's]
treatment pathway, which will need to be full and thorough given the seriousness and proliferation of his offending which spanned a period of 18 months and involved 12 identified
victims".
PO2 did not
recommend
either
release
or progression to open conditions, as the
risk
of serious harm and similar
reoffending
remained
high and core
risk
reduction
work, which ought to be undertaken in closed conditions, was outstanding.
- On 16th March 2017, a
Registered
and Chartered Forensic psychologist instructed by NOMS ("P9") produced a Structured Assessment of
Risk
and Need
Report.
P9 had previously assessed Mr
Radford
in August 2015 on instructions from his solicitors. P9 observed that Mr
Radford
now admits that he planned his offending meticulously. P9 noted Mr
Radford's
explanation that his offending was
related
to his
relationship
break-up with M1 in 2005/6. P9 stated that Mr
Radford
required
further work to "target the full breadth of his treatment needs" which were specifically identified. Further:
"I also
recommend
that at some point prior to Mr
Radford's
transfer to open conditions/
release
he is given the opportunity to learn about the potential
risks
associated with pornography use on the internet."
P9's conclusion was as follows:
"Mr
Radford
has
responded
well to treatment and he has
reduced
his
risk
to some degree. He has some outstanding treatment needs to target, but there is no clear treatment pathway to
recommend
at present, other than work that Mr
Radford
can complete autonomously. Mr
Radford
is not currently suitable for transfer to open conditions, or for
release,
however in my opinion there is sufficient evidence of
risk
reduction
to
recommend
a
review
of his security category. Once Mr
Radford
is downgraded from his Category A status, he will then be
required
to spend a period in high security conditions as a Category B prisoner, before he is considered for progression. At this point, if he maintains the progress he has made and the protective factors continue to be strongly present, in my
view
he will be
ready
for progression to a category C establishment."
- On 30th May 2017 Mr
Radford's
solicitors wrote to the
Parole
Board
seeking an oral hearing. Their
representations
sought his transfer to open conditions. They
recognised
that it would take a "brave
Parole
Board"
to consider a Category A prisoner for open conditions, and acknowledged that perhaps a period of transition through the Category C estate would be better. On 8th June the
Parole
Board
granted Mr
Radford's
request
for an oral hearing.
- Separately, on 8th August 2017, in a process that does not involve the
Parole
Board,
the Secretary of State determined that Mr
Radford
should
remain
a Category A prisoner because there was insufficient evidence of
risk
reduction
at that stage. On the following day, at the
request
of Mr
Radford's
solicitors, a Consultant Clinical and Forensic psychologist ("P12")
reviewed
his progress in an interview lasting some 3½ hours. A
report
was provided dated 10th August.
- P12 described Mr
Radford
as being "
very
precise about dates". He said that he offered passengers drinks in December 2005 and June 2006 without offending, and that in September 2006 he went to strip clubs and watched pornographic
videos
with an older man: one of these
videos
showed an actress being drugged by her boyfriend and
raped.
Mr
Radford
said that this triggered his interest in women in their mid-20s. Mr
Radford
maintained that the trigger for his offending was the events following his break-up with M1 in 2005. In particular, he explained that the "immediate trigger" for him beginning to offend was M1 contacting him in September/October 2006 after they had broken up and suggesting that "she come home with him". He found her heavily intoxicated when he picked her up and "he had to take her to her mother's house. Enraged, he decided to act, fetched the drugs and drink and went out looking for a
victim
that night".
- Mr
Radford
told P12 that he waited for a week because he was anxious about being caught, and thereafter that there were 11 subsequent occasions when he offended. His planning was "
very
careful". Mr
Radford
said that for 11 of the 12
victims
he only gave them half a tablet as he was concerned not to cause them too much harm. He would touch them on the leg or look up their skirt whilst fondling himself. The aim was to ejaculate but often the
victim
woke up, which panicked him. In
relation
to the
rape
victim,
Mr
Radford
maintained that she boasted that she could take any drug, so he decided to give her a whole Temazepam tablet. Consequently, he was able to go further and penetrate her with his penis.
- Deploying the
Risk
of Sexual
Violence
Protocol, P12 considered that Mr
Radford
was low
risk.
This assessment was based on his offending "spree" having taken place over an 18 month period and his "[c]urrent presentation is one of openness, and full accounts of the offences have been developed". P12 identified three specific
risk
factors of which Mr
Radford
had good understanding.
- Overall, P12 concluded that Mr
Radford
provided a plausible account of the small incidents that triggered the gradual development of a plan to offend, and to do this he adopted a deceptive persona. By seeking out women with characteristics that he despised he was enabled to create a fantasy as a seducer which made him feel powerful and
virile.
All offence-
related
work had been completed. Whilst it was possible that Mr
Radford
might
revert
to habitual patterns of
relating
to women when in the community, this
risk
area "is now much easier to identify and manage, given the clarity about the motives and traits undermining his offending behaviour". P12 had no concern in
recommending
Mr
Radford
for open conditions asserting confidence that the
risk
to the public was low. A period in Category C conditions was worthy of consideration but not a necessary step.
- The
Parole
Board
requested
a further forensic psychological assessment from P9. This was commissioned by the Secretary of State and was provided on 11th September 2017 in the form of an addendum psychological
report.
P9 stated that in all of the assessments of Mr
Radford
"he has demonstrated a
very
good understanding of
victim
empathy, and has expressed
remorse
and shame for his offending behaviour". P9 noted that Mr
Radford's
offending behaviour was linked to his break-up with M1 in 2005/6 and that in the "build up to his offending he was dwelling on his
relationship
breakdown with [M1] and during the period he offended he was feeling unhappy and unsatisfied about the lack of intimacy in his
relationship
with M8". P9 noted that Mr
Radford
"currently accepts
responsibility
for his behaviour", and "this is not considered an area that will affect future
risk
management". However, Mr
Radford
had problems with intimate
relationships
and this was an area to monitor for future
risk
management.
- Overall, P9 concluded that Mr
Radford
presented a low
risk
of sexual
reoffending
and that "[a] cautious option would be for [him] to progress to lower category closed conditions; however, on balance it is my
view
that [his]
risk
could safely be managed in open conditions and if he were
released
on licence".
- On 26th September 2017 a psychological
report
was provided by another
Registered
Chartered psychologist ("P1"); this, again, was on the instructions of Mr
Radford's
solicitors. Mr
Radford
told P1 that his first offence had been committed in December 2005 (cf. other accounts) after M1 had left him in August 2005. Mr
Radford
stated that after he
resumed
his
relationship
with M1 he did not
reoffend
until June 2006. Mr
Radford
stated that the sexual assaults became more
regular
from October 2006 following an incident in which M1 had asked him to pick her up after a night out when she was heavily intoxicated, which angered him.
- Mr
Radford
told P1 that he only used Nytol on one occasion when a
victim
stated she was going to be sick. He also claimed that his sexual offending primarily involved him touching the
victim's
leg whilst touching himself through his trousers. When the
victim
woke up in
response,
he would immediately
return
to the front of his cab and continue the journey. He told P1 that he touched the breasts of one
victim
and used a
vibrator
against the tops of the legs of another, denying penetration. Mr
Radford
stated that he had performed only one offence of
rape
which had occurred "when he felt angry towards his partner" before Christmas 2007. As for what happened:
"Mr
Radford
maintained that this female had boasted she could take any drug, and he initially gave her a
vitamin
tablet, maintaining that it was Ecstasy. She then complained that it had no effect, and so he gave her a whole Temazepam tablet. He
reported
penetrating her with his penis for approximately four seconds. The
victim
became briefly conscious, telling him to get off her, before losing consciousness again. He
reported
masturbating before driving home, and that the
victim
made no further comment about the assault."
Mr
Radford
said that he committed "sexual touching" after the single act of
rape
but "did not consider that he would have attempted penetrative sex again".
- P1's assessment was that Mr
Radford
has provided a detailed account of his offending behaviour, fully accepted its impact on his
victims,
and that he did not minimise it. The only element of his offending that he "
refute[d]
[sic] was using a
vibrator
to penetrate one of his
victims".
His "
relational
difficulties were a primary contributing factor to his offending behaviour". Overall:
"I have carefully considered a
range
of progressive options for Mr
Radford.
I am not of the
view
that transfer to a Category C establishment is of any benefit in terms of
risk
reduction.
He does not
require
a specialist unit such as a therapeutic community or a PIPE [Psychologically Informed Planned Environment]. I have also considered the possible merits of him progressing to open conditions. Mr
Radford
is highly unlikely to present a management problem in a Category D establishment. I would concur with P12 that there are problems associated with open conditions due to media interest in terms of Mr
Radford's
ability to work in the community and to have
ROTLs.
From a
risk
perspective, I find it difficult to justify why Mr
Radford
should
remain
in custody given his low
risk
of
recidivism.
The only complicating factor in Mr
Radford's
case is the high profile nature of the offences and the ongoing court case involving the Metropolitan Police. However, this is not specifically
relevant
to the
risk
of
recidivism
…"
- On 20th September 2017 OS2, having seen most of the available material but not P1's
report,
provided an addendum
report.
It stated that Category A prisoners should progress through the categorisation system to be tested at each stage before moving onto the next. However, OS2 noted that P9 and P12 had both concluded that Mr
Radford's
risk
could be managed in open conditions, and that P12 had supported
release.
OS2 did not support
release,
but given the
views
of P9 and P12, and the lack of further
risk
reduction
work identified by them, OS2 supported transfer to open conditions.
- On 11th October 2017, a new Offender Manager ("PO6") provided an addendum to the PAROM 1 previously provided in April 2017. This did not
refer
to P1's
report.
PO6 explained that Mr
Radford's
case has been discussed at Multi Agency Public Protection Arrangements ("MAPPA") meetings on 24th August and 2nd October 2017. The senior prison psychologist did not support the
recommendation
made in P9's addendum
report.
Concerns were expressed as to Mr
Radford's
narcissism, his impression management, and that he had only
recently
completed treatment; the assessment was that he
required
further work in custody. The
view
of MAPPA was that Mr
Radford
remained
a high
risk
of harm and should not be granted
release
or moved to open conditions before progressing through security categories and continuing to work on his current treatment needs. PO6's conclusion was that there
remained
outstanding work around Mr
Radford's
self-worth, sources of
validation
and impression management that needed to be completed and tested within closed conditions. PO6 suggested that this could best be achieved in Category C conditions. The
report
stated that a move to open conditions or
release
could not be supported.
- As is clear from the schedule to the witness statement of Mr Gordon Davison, Deputy Director in HM Prison and Probation Service, dated 5th March
2018,
there were numerous
references
in the dossier to a large-scale police operation during which around 80 potential
victims
came forward, and a similar number of offences. Some of these
references
were specifically linked to the period October 2006 to February 2008; others were not. Although Mr
Radford
was consistently described as a "prolific" sex offender, it was clear that his admission of guilt (in 2015 and subsequently) has been confined solely to the series of offences for which he had been convicted.
The Hearing
- The hearing took place on 8th November 2017 before a three-member panel which included an experienced chair, a specialist psychologist member and a qualified lawyer: no further details are given in the witness statement of Mr Martin Jones, the Chief Executive of the
Parole
Board
and, in particular, it is unknown whether the lawyer had judicial experience of any sort. The panel heard evidence from ALP1 (a senior prison psychologist who had not assessed Mr
Radford
in person), P9, P12, P1, OS2, PO2, PO4 (who had become Mr
Radford's
Offender Manager in September 2017) and Mr
Radford
himself. Handwritten and typed
versions
of the chair's contemporaneous notes,
redacted
where appropriate, have been helpfully provided.
- In short:
i) on the day of the hearing P12 changed his/her
recommendation
and supported Mr
Radford's
release.
ii) ALP1 expressed surprise at P9's conclusion and
recommended
a slow move through the categorisation system and a placement in a PIPE in closed conditions.
iii) P1, P9 and P12 were agreed that treatment completed in prison had been effective, that Mr
Radford
did not
require
a therapeutic placement or a PIPE, that he posed a low
risk
of sexual offending in open conditions or if
released,
and that the
risks
"lacked imminence" in both settings.
iv) OS2, PO2 and PO4 gave evidence opposing
release
or a move to open conditions that was consistent with their
reports.
v)
Mr
Radford's
oral evidence started at about 2:40 pm and was completed by 3:30 pm. He had already provided to the panel a diary which threw some light onto his self-evaluation as to the
reasons
for this offending and his progress. This
recognised
that "by the time I am hopefully
released
I will probably be in my mid-60s" (Mr
Radford
was writing this diary when he was 60). Assuming that the chair's notes are complete, Mr
Radford
was asked few questions by the Secretary of State's
representative,
and gave answers which have been summarised in this way:
"Negative attitude at the time.
Semi-conscious – wouldn't know.
Wasn't beating them up.
Violent
through the drugging and the sex.
M1 breakdown triggered it – not other breakdown of
rels
– Had? More in contact with M24 – strip clubs etc. when seeing M1
M1 – lots of alcohol.
Attracted to younger women – but no
respect
for them."
- Questions were not asked of Mr
Radford,
either by the
representative
of the Secretary of State or by the members of the panel, directed to whether he was or might be minimising the seriousness of the index offences, to the inconsistencies in the dates he gave as to the factor he was putting forward as the trigger for his offending, and to whether his offending (or any inappropriate sexual behaviour short of the commission of crime) was indeed confined to the twelve
victims
in
relation
to whom he was found guilty. It is a fair
reading
of the notes of the hearing that the credibility and
reliability
of Mr
Radford's
account was not probed to any extent, if at all.
The Decision Letter
- In directing Mr
Radford's
release,
by letter dated,
rather
surprisingly, 26th December 2017, the
Parole
Board
noted the circumstances of his offending and identified some 17 overlapping
risk
factors which applied to him. However:
"… the panel was able to identify protective factors that will serve to
reduce
your
risk
of further sexual
violence
and serious harm. You now take full
responsibility
for your offending behaviour and have undertaken treatment to address those
risks,
that work has been completed to positive treatment effect. You evidence good insight as to your
risk
factors and how you can use internalised
risk
management skills to ensure that you do not
re-offend.
You have learnt to be open and honest with professionals and you are assessed as being compliant and motivated to
remain
compliant when in the community.
…
There is a consensus amongst the psychologists that you
represent
a low
risk
of sexual offending in open prison conditions and if
released,
and that the
risks
you pose lack imminence in both of those settings.
…
You stated that "I'm deeply sorry about what I have done. I feel I'
ve
become a better person since I changed my stance and admitted my guilt". You explained the context of your offending, the drivers and the links to your own life experiences and how that has all impacted to form your personality, attitudes and beliefs. Your account and explanation evidenced insight and was consistent with your disclosures and
reflections
in treatment and assessment settings … You said that "from 2011 I felt so guilty didn't know who to speak to – I found
religion
– decided if I'm going to follow the lord I'
ve
got to be honest and admit what I have done". You say that SOTP has taught you to identify
risk
factors and put in place strategies to self-manage those
risks
…
…
The
RM2000
[static
risk
assessment] indicates a low
risk
of sexual harm/offending, this actuarial score may be affected by the fact that you have no
relevant
previous convictions, and the fact that you have had one sentencing exercise in
respect
of a number of counts of sexual offending, thus triggering an actuarial assessment of low
risk.
However, the panel notes and places weight upon, the dynamic
risk
assessments provided by psychologist witnesses that the dynamic
risk
of sexual offending is low …
…
You are assessed as being able and willing to comply with a licence and its conditions and the
risk
management plan in place is
robust
… Clinical opinions indicate that the
risks
you pose are manageable in the community and lack imminence. It is noted by the panel that, amongst those who opine that a slow progression through the custodial estate is
required,
your
risks
are assessed as being manageable and lacking imminence in the community and in open prison conditions.
…
The panel assesses that the test for
release
is met and that a period in less
restrictive
prison conditions is not
required
in your case. The
risk
management plan in place is
robust
and you will be managed on a multi-agency basis. You are assessed as being motivated and able to comply with your licence and all of its conditions. You evidence a
reduction
in
risk.
The proposed
risk
management plan is assessed as being strong enough to manage your
risks
at the point of
release
and over the currency of your licence. The panel notes the concerns expressed that, whilst the
risk
may be manageable at the current time, those
risks
will increase several years after
release.
The panel does not agree that an increase in
risk
is inevitable, in any event, any such increase in
risk
or decline in progress will be
readily
detected and the
risk
management plan will serve to manage any
relevant
issues that may arise.
On the basis of the above, and other assessments, information and
recommendations
recorded
in this decision-letter, the panel determines that it is no longer necessary for you to be detained in custody in order to protect the public."
- The panel imposed a number of licence conditions including in particular that Mr
Radford
should permanently
reside
at specified approved premises; that he should be subject to a curfew; that he should notify his supervising officer of any developing
relationships
with women; that he should not delete the usage history of any internet enabled device or computer and allow such items to be inspected as
required
by the Police or his supervising officer; and that he should not own or possess more than one mobile phone or SIM card without the prior approval of his supervising officer, and provide him or her with
relevant
details.
- The Claimants only learned of the
release
direction on 4th January
2018,
when it was published in the media. The
reasons
for the
Parole
Board's
decision, and the material on which it was based, were not placed in the public domain. The first time that the Claimants were able to consider the material or the detailed decision was following the order of this court on 7th February
2018.
- On 5th March
2018,
the National Probation Service
requested
additional licence conditions for the
Parole
Board's
consideration. Following consultation with the
victims
it is proposed that Mr
Radford
be excluded from either the whole or part of Greater London, and from Sussex, and that his movements be monitored with a GPS tag. We understand that Mr
Radford
does not oppose these additional conditions and note that they
remove
the basis of the challenge by the Mayor of London (who expressed concern about his
responsibilities
for public safety in London).
Material not before the
Parole
Board
- It is undeniable that there were
references
in the dossier to other matters which, had the
Parole
Board
wished to enquire further, would have
revealed
other material which could be considered to be
relevant
to the credibility of Mr
Radford's
recent
accounts of his criminality and thus the
risk
which he could continue to pose. Thus, we have already observed that, contrary to Schedule 1 Part A(5) of the
Parole
Board
Rules,
the judge's sentencing
remarks
were not in the dossier and neither was there any police
report
of the circumstances of the offending (which could itself have been contrasted to Mr
Radford's
account). Furthermore, although the dossier
referred
expressly to proceedings brought against the Metropolitan Police, and to at least 80 potential
victims,
there was no material in the dossier which
related
directly to anything which emerged during that hearing.
- As for that litigation, in 2010 and 2012
respectively
DSD
and NBV brought proceedings against the Commissioner of Police for the Metropolis under ss. 7 and 8 of the Human
Rights
Act 1998 claiming breaches of their human
rights
under Articles 3 and 8 of the European Convention. These proceedings succeeded before Green J ([2014]
EWHC
436 (QB)) and, at the time of the
Parole
Board
hearing, the decision had been upheld by the Court of Appeal ([2015] EWCA Civ 646). It has since further been upheld by the Supreme Court: see [
2018]
UKSC 11.
- This litigation and the findings of Green J are not binding on Mr
Radford
because he was not a party to it. Having said that, in short, without contest by the Metropolitan Police, Green J held that, between 2002 and 2008, Mr
Radford
committed in excess of 105
rapes
and sexual assaults upon women in his taxi. In the judge's words, he was "clinical and conniving", and his methodology became "ever more
refined"
over time [6]. (We note that at [6] Green J gave the start date as 2002, whereas at [40] it was given as 2003. Given the evidence to which he
refers,
we take the latter date to correctly
reflect
what he found.)
- Further, and unbeknownst to the
Parole
Board,
quite apart from
reaching
conclusions about the extent of the criminality, Green J provided some critical detail of the circumstances of the police arrest and what was found (all of which could, in any event, have been made available to the
Parole
Board).
He explained (at [20]):
"When [Mr
Radford's]
home and car were searched by police, they discovered an extensive "
rape
kit" in the boot of his Fiat Punto. This kit contained everything he needed to stupefy and sexually assault a passenger. This included small bottles of champagne: "… ideal if you want to offer a glass or two of that drink with the benefit of the champagne not going flat as it would in a large bottle if the contents were not all drunk at once". They also found gloves a beret, maps, a torch, a quantity of plastic cups, a
vibrator
in a box, a box of condoms, and strips of Nytol tablets …"
- Green J also
referred
to the opening which prosecuting counsel provided to the jury. This was in the context of the soporific effects of Nytol, and the
risks
of combining it with alcohol. Not merely was the opening potentially
valuable
in this
regard
(although we are not suggesting that the
Parole
Board
were unaware of the basic properties of Nytol), it would have been of greater assistance in outlining the nature of the allegations in
relation
to the fourteen
victims
who formed the subject of the index offences (Mr
Radford
was found not guilty in two out of the fourteen cases).
- It is significant (and was clearly
very
important for the
Parole
Board
panel) that it concluded that Mr
Radford
took "full
responsibility"
for his offending behaviour and had "learnt to be open and honest with professionals". Putting to one side the extent of the criminality, it is beyond argument that the evidence that the High Court
received
about what was found when Mr
Radford
was arrested and the detail contained in the prosecution opening were both capable of having a bearing on the credibility and
reliability
of Mr
Radford's
account. At the
very
least, it provided material which could be put to him in order to test the credibility and
reliability
of his post 2015 account if only because of the expressed concerns that Mr
Radford
was manipulative, engaged in impression management and for more than 6 years had been steadfastly maintaining his innocence of any crime.
- In addition, we turn to the evidence of
DSD
which is outlined in the judgment of Green J. Her witness statement included a detailed account of what she could
recall
of events which took place early in the morning of 7th May 2003. In line with his standard practice, the cab-driver (deploying a neutral designation at this stage) told
DSD,
who had been out celebrating a friend's birthday, that he had won a substantial sum of money, and he offered her a drink. Eventually she accepted.
DSD
recalled
that the drink had a strong orange liquor flavour. The driver then stopped the cab, entered the
rear
to have a cigarette with her, put his arm
round
her and complimented her. Thereafter,
DSD
remembered
nothing about the assault [20].
- For present purposes, exactly what happened subsequently, distressing in detail, is not material. Suffice to say,
DSD
woke up in the Whittington Hospital soon to discover that her tampon had fallen out, and that her
vagina
was covered with lubricant, and was open and stretched [22]. She
reported
the incident to the Police that morning and a urine sample was taken. In due course traces of the active ingredient in Nytol were discovered by police toxicologists although the significance of this was not
recognised
[252]. The significance of this finding (if the allegation is
relevant
to Mr
Radford's
parole)
is that it tended to contradict his
version
that he only used Nytol, as opposed to Temazepam, on one occasion. Although Green J observed that the toxicology findings in the cases of
DSD
and NBV were "inconclusive" [252], he noted that the discovery of Nytol and Temazepam at Mr
Radford's
home address "corresponded to drugs found within the bodies of
victims"
[80].
- After police investigations which were heavily criticised by Green J, whatever the position of Mr
Radford,
the Metropolitan Police accepted that
DSD
was one of his
victims.
Ms Phillippa Kaufmann QC for
DSD
and NBV informed us that
DSD
is believed to be one of his first
victim,
and NBV about his seventy-fifth. On 28th April 2009, the Crown Prosecution Service ("CPS") wrote to
DSD
thanking her for her assistance with the police investigation and pointing out that "there are dangers in putting too many charges on an indictment at the trial". We agree with Ms Kaufmann that the only fair
reading
of his letter is that the CPS considered that the evidential threshold had been surpassed in
DSD's
case.
- This
reading
of the letter is wholly consistent with the Closing
Report
written by the Metropolitan Police dated 5th April 2011 (see [86] of Green J's judgment) which explains that at the time of the trial 83 linked offences were being investigated (the total number of allegations linked to Mr
Radford
upon the closure of the investigation was 105), but that the CPS sought for presentational
reasons
to include only those allegations "which were particularly serious or which added a great deal to the evidence against [him]".
Reliance
is placed on behalf of Mr
Radford
on a press statement from the CPS dated 5th January
2018
to the effect that the evidential threshold had not been met in
relation
to the 69 cases which did not form part of the trial (83 linked offences less the 14 indicted
victims).
How that fits with the earlier correspondence is not entirely clear but nothing may turn on this post-decision material and we say no more about it.
- There are two other pieces of post-decision material which we should address. First, in a detailed witness statement prepared for these proceedings, dated 5th March
2018,
P12 has explained that, taking a common sense approach, it was
reasonable
to assume that there were considerably more
victims
than the twelve in
respect
of whom Mr
Radford
was convicted; that such other offences he committed fell into the same pattern; that it is never appropriate to use a psychological interview for the purposes of a
risk
assessment to try and elicit a confession
regarding
wider allegations; that in the
report
to the
Parole
Board
at no time did P12 mean that Mr
Radford
had given a full account or confession in
relation
to every sexual offence he may have committed; and that, in any event, "taking full
responsibility"
was not associated with lower
re-offending
rates.
Regardless
of whether evidence of this nature is admissible in judicial
review
proceedings, and it probably is not, we are unable to conclude that P12's thought-processes, assuming that they were held at the time, are
reflected
in any of the
Parole
Board's
reasons.
Accordingly, they take the matter no further in these proceedings, although it would be open for the
Parole
Board
to consider them as
relevant
if so advised.
- Of potentially greater interest is Mr
Radford's
witness statement dated 5th March
2018
in which he said the following:
"5. I am aware that the police suggest that I may have committed many more offences than those for which I was convicted. I have also been the subject of civil claims by
DSD,
NBV and other women. I settled a total of 11 civil claims (3 following guilty
verdicts,
1 not guilty, 5 interviewed by police but not charged, 2 never interviewed).
6. I settled those claims on a "no fault" basis with Pannone Solicitors to the sum of
roughly
£241,000. I was never provided with a breakdown per Claimant. It was a global agreement for distribution by Pannone. I settled because I wanted to deal with the litigation and move on. I wanted to put an end to the case to focus on treatment and
rehabilitation.
7. I am innocent of each of the other allegations made against me aside from those for which I was convicted."
- Had Mr
Radford
been asked by the
Parole
Board,
either before or at the hearing, any questions in
relation
to other offences for the purposes of probing his account, it is
reasonable
to infer that he would have answered in a manner consistent with this witness statement. However, bearing in mind the size of the payment, such answers should have generated a modicum of scepticism in the minds of a forensically astute panel.
- Quite apart from not seeing the judgment of Green J or any information, evidence or material bearing on other allegations, in a case which it was known concerned a prisoner who was manipulative, managed impressions and had denied any offending for many years, the
Parole
Board
dossier did not include the prosecution opening, any information, evidence or material bearing on the discovery of the "
rape
kit" at Mr
Radford's
home address, including amongst other things the box of condoms and the strips of Nytol or any police
report.
Although the
Parole
Board
was entitled to make enquiries of the police and, in particular, it was entitled to obtain full details of the gravity of the offending in
relation
to the index offences, it did not do so.
The Legislative Framework
- The starting point is the sentence passed on Mr
Radford
on 21st April 2009. Imprisonment for Public Protection was a sentence created by s. 225 of the Criminal Justice Act 2003 ("the 2003 Act") which was subsequently modified and then abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 although with prospective effect from December 2012. Thus, it
remains
the lawful sentence which Mr
Radford
is
required
to serve. The sentence was mandated if Penry-Davey J was of the opinion that "there is a significant
risk
to members of the public of serious harm occasioned by the commission by [Mr
Radford]
of further specified offences", unless he was satisfied that it was appropriate to impose a life sentence.
- In making the cardinal assessment of dangerousness, s. 229 of the 2003 Act provides that the court is
required
to take into account a
range
of "information"
relating
to the offenders, the index offences and any information before it about any pattern of behaviour. It is not suggested that it was not entirely appropriate in Mr
Radford's
case.
- The effect of the sentence is that it is an indeterminate life sentence for the purposes of s. 34(2)(d) of the 1997 Act. The minimum term to be served before eligibility for
parole
could be considered was, in Mr
Radford's
case, 8 years' imprisonment (the equivalent of a determinate term of 16 years'). His
release,
however, was not determinate and was governed by the provisions of s. 82A of the Powers of Criminal Courts (Sentencing) Act 2000. Once the minimum term has expired, the "early
release
provisions" set out in s. 28(5)-(8) of the 1997 Act apply and
responsibility
for considering
release
passes to the
Parole
Board.
- By s. 239(1)(b) of the 2003 Act, the
Parole
Board
has the functions conferred on it in
respect
of life prisoners by Chapter 2 of Part 2 of the 1997 Act, s. 28(6) of which provides:
"The
Parole
Board
shall not give a direction under sub-section (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."
Once a section 28 direction has been given, the Secretary of State must comply with it: see sub-section (5)(b).
- By s. 31(3) of the 1997 Act, the Secretary of State must not include a condition in a life prisoner's licence on
release
except in accordance with
recommendations
of the
Parole
Board.
That licence is subject to
revocation
by the Secretary of State pursuant to s. 32 of the 1997 Act whereupon the prisoner is
recalled
to prison although s. 32(4) then
requires
the Secretary of State to
refer
the matter to the
Parole
Board.
By sub-section (5), if the
Parole
Board
directs immediate
release,
the Secretary of State must give effect to it. Although it does not so state in terms, the necessary implication of s. 32(5)(a) is that in making a direction in
relation
to a
recalled
prisoner the
Parole
Board
applies the s. 28(6)(b) test.
- Section 239 of the 2003 Act provides in so far as is material as follows:
"(3) The
Board
must, in dealing with cases as
respects
which it makes
recommendations
under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—
(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 must consider the
report
of the interview made by that member.
(4) The
Board
must deal with cases as
respects
which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to subsections (3) and (4), the Secretary of State may make
rules
with
respect
to the proceedings of the
Board,
including proceedings authorising cases to be dealt with by a prescribed number of its members or
requiring
cases to be dealt with at prescribed times.
…
(7) Schedule 19 shall have effect with
respect
to the
Board."
- Paragraph 1 of Schedule 19 provides:
"(2) It is 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 2 of Part 2 of the Crime (Sentences) Act 1997 in
relation
to life prisoners within the meaning of that Chapter."
- The processes, functions and procedure of the
Parole
Board
are set out in the
Parole
Board
Rules
2016 made under s. 239(5) of the 2003 Act, which came into force on 22nd November 2016 (
relevant
earlier
versions
being set out below). By
Rule
2, a "party" for the purposes of the
Rules
is the prisoner or the Secretary of State.
Rule
7 provides for the service of information and
reports
by the Secretary of State on the
Parole
Board
and the prisoner. In an initial
release
case, such as the present, the Secretary of State must serve the information specified in Part A of Schedule 1 and the
reports
specified in Part B.
- Part A includes full details of the prisoner, the establishments in which he is currently being and has been held, the date of sentence, the offence and any previous convictions, and the sentencing
remarks,
if available, of the trial judge. (We note that in a
recall
case, Part A of Schedule 2 is in similar terms, save that the information must include the statement of
reasons
for the prisoner's most
recent
recall.)
- Part B provides:
"1. If available, the pre-trial and pre-sentence
reports
examined by the sentencing court on the circumstances of the offence.
…
3. Current
reports
on the prisoner's
risk
factors,
reduction
in
risk
and performance and behaviour in prison, including
views
on suitability for
release
on licence as well as compliance with any sentence plan.
4. A current
risk
management
report
prepared for the
Board
by an officer of the National Probation Service, including information on the following where
relevant
—
(a) details of the prisoner's address, family circumstances and family attitudes towards the prisoner;
(b) alternative options if the offender cannot
return
home;
(c) the opportunity for employment on
release;
(d) the local community's attitude towards the prisoner (if known);
(e) the prisoner's attitude to the offence for which the offender
received
the sentence which is being considered by the
Parole
Board
("the index offence");
(f) the prisoner's
response
to previous periods of supervision;
(g) the prisoner's behaviour during any temporary leave during the current sentence;
(h) the prisoner's attitude to the prospect of
release
and the
requirements
and objectives of supervision;
(i) an assessment of the
risk
of
reoffending;
(j) a programme of supervision;
(k) if available, a current
victim
personal statement setting out the impact the index offence has had on the
victim
and the
victim's
family;
(l) a
view
on suitability for
release,
and
(m)
recommendations
regarding
any licence conditions."
- Part 4 provides for the procedure before an oral panel.
Rule
20 provides for a party to call witnesses, and allows for a member of the oral panel to call a witness.
Rule
22(3)
requires
that a hearing be held in private, although there is power under sub-
Rule
(4) to admit any person subject to conditions.
Rule
23 deals with procedure at the hearing. Specifically:
"(1) At the beginning of the hearing the panel chair must—
(a) explain the order of proceeding which the oral panel plans to adopt, and
(b) invite each party present to state their
view
as to the suitability of the prisoner for
release
or for transfer to open conditions, as applicable.
(2) The oral panel—
(a) must avoid formality during the hearing;
(b) may ask any question to satisfy itself of the level of
risk
of the prisoner, and
(c) must conduct the hearing in a manner it considers most suitable to the clarification of the issues before it and to the just handling of the proceedings.
(3) The parties are entitled to—
(a) take such part in the proceedings as the oral panel thinks fit;
(b) hear each other's witnesses and
representations;
(c) put questions to each other;
(d) call a witness who has been called in accordance with
rule
20, and
(e) question any witness appearing before the oral panel.
...
(6) An oral panel may produce or
receive
in evidence any document or information whether or not it would be admissible in a court of law.
(7) No person is compelled to give any evidence or produce any document which they could not be compelled to give or produce on the trial of an action.
(8) The panel chair may
require
any person present to leave the hearing where evidence which has been directed to be withheld from the prisoner or their
representative
is to be considered.
(9) After all the evidence has been given, if the prisoner is present at the hearing, the prisoner must be given an opportunity to address the oral panel."
- By
Rule
24:
"(1) The decision of the oral panel must be
recorded
in writing with
reasons,
and that
record
must be provided to the parties not more than 14 days after the end of the hearing.
(2) The
recorded
decision must
refer
only to the matter which the Secretary of State
referred
to the
Board."
- By
Rule
25:
"(1) Information about proceedings under these
Rules
and the names of the persons concerned in the proceedings must not be made public.
(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a
result."
The Submissions
The
Release
Direction
- Given the time available the parties sensibly apportioned the oral argument between them where there was commonality of interest, thereby avoiding unnecessary duplication. We have paid as much attention to the written submissions as to their oral elaboration.
- Ms Kaufmann
rested
her oral arguments on two broad platforms, and was content to leave the challenge to the
vires
of
Rule
25 to be developed by others. Her first headline submission was that the material which was not before the
Parole
Board,
as summarised above, could not
rationally
have been ignored in the light of its central bearing on the
Board's
essential
risk
assessment. Her second headline submission was that the
release
direction, even considered on its own terms without
reference
to any further material, was Wednesbury unreasonable in the straightforward sense of being irrational.
- In developing her first headline submission, Ms Kaufmann sought to characterise what she called the "critical evidence" of wider offending as amounting to a
relevant
consideration for the purposes of her Wednesbury argument, or as leading the
Parole
Board
to err in fact. This evidence was directly
relevant
to Mr
Radford's
risk
factors and, in particular, his degree of dangerousness; it was also directly
relevant
to whether he had fully accepted
responsibility
for what he had done. Given that Mr
Radford
was claiming
very
precisely that the trigger for his offending arose in 2005 or 2006 (there is, however, some inconsistency as to the date, to which we have already alluded), it was obvious that evidence that he had offended before then necessarily impacted on his openness and honesty with professionals and the panel, as well as his level of insight.
- Pressed by us to explain how and why it was incumbent on the panel to seek out further information which had not been included in the dossier by the Secretary of State (and, we might now add, did not feature in the latter's submissions to the panel or cross-examination of Mr
Radford),
Ms Kaufmann submitted that an expert panel exercising an inquisitorial function should have undertaken further inquiry pursuant to s. 239(3)(b) of the 2003 Act. There were multiple
references
in the dossier to other potential
victims,
and the panel was also aware of the litigation involving the Metropolitan Police in that specific context.
- The further information that the panel could and should have obtained included a
report
from the senior investigating officer
responsible
for Operation Danzey (the codename for the police investigation into Mr
Radford's
global offending) or a witness statement from
DSD.
Subject to overriding considerations of fairness, the panel could have admitted this evidence as hearsay – not necessarily for the purpose of proving that Mr
Radford
had committed other offences, but as a means of testing the account he was advancing and the evidential premises of the psychologists'
reports.
- In developing her second headline submission, Ms Kaufmann stated that there were a number of stark and atypical features of this case which called for the exercise of special caution. These included:
i) Mr
Radford's
change of stance and
recognition
of any offending was only 2½ years before the hearing.
ii) The fact that the Secretary of State was maintaining Mr
Radford's
category A status as
recently
as August 2017.
iii) The fact that it is extremely unusual for a prisoner to move directly from Category A to
release
on licence not least because of the absence of any testing in conditions other than of maximum security.
iv) There are numerous
references
in the dossier to Mr
Radford's
skills in the
realm
of manipulation and impression management to which appropriate attention needed to be paid.
v)
The panel placed some weight upon Mr
Radford's
successful completion of the core SOTP, whereas it was discontinued in 2017 because it was found to yield a 2% increase in offending.
vi)
The licence conditions proposed could easily be circumvented.
vii)
In
R
v
Parole
Board,
ex parte Watson [1996] 1 WLR 906, at 916H-917A, Sir Thomas Bingham MR, as he was then, held that:
"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 harm".
- Mr Dan Squires QC for the Mayor adopted Ms Kaufmann's oral arguments. In his Amended Statement of Facts and Grounds he formulated the first limb of the Wednesbury challenge (what we have called Ms Kaufmann's second headline submission) as follows:
"… the
Board
failed to ask itself whether [Mr
Radford's]
apparent transformation in prison, since he admitted the offences for which he was convicted in May 2015, is genuine and whether he has indeed been "open and honest" about his offending and taken "full
responsibility"
for it; or whether his account to the
Board
and to those who have assessed him as to the scale, nature, extent, dates and triggers for his offending is based on a series of calculated lies. That was plainly a question that the
Board
should have asked itself."
- Mr Ben Collins QC for the
Parole
Board
emphasised that the decision of the panel on
release
"is a species of judicial decision" which speaks for itself and in the ordinary course does not
require
active defence: the position is analogous to judicial
reviews
of statutory tribunals which are not generally defended by the tribunals themselves. However, the
Parole
Board
had
recognised
that in the particular circumstances of this case "it will be necessary, in order to address important issues of broad approach, and for the sake of clarity of the
Parole
Board's
decision on such matters, to address some of the specific criticisms made of the
Parole
Board's
findings and conduct of the hearing in this matter".
- Mr Collins developed his oral arguments under four headings. First, he submitted that it is not the
role
of the
Parole
Board
to determine the prisoner's guilt in
relation
to matters where no such finding has been made by a criminal court. Such a course would be anathema both to the statutory scheme and to authority. Moreover, even if the Claimants' cases were tempered to the extent that the postulated public law obligation of the
Parole
Board
were to take account of evidence
relating
to other offending,
rather
than make any finding of guilt, the analysis would not alter. Once the evidence has been taken into account, it can only be
relevant
to the extent that it
renders
it more likely that the prisoner did commit other offences. Thus, there is an artificiality in seeking to draw any distinction in principle between
various
possible formulations of the Claimants' case. In addition, it would be almost impossible in practice to devise a fair procedure which would enable the prisoner to test the evidence to the extent necessary to nullify its probative
value,
if any.
- Secondly, Mr Collins submitted that the
Parole
Board
was not, in any event, bound in public law terms to consider evidence of wider offending. Mr Collins characterised this sub-issue as amounting to a pure Wednesbury
review
of the exercise of judgment by an expert panel
rather
than an alleged failure to have
regard
to a
relevant
consideration: evidence of wider offending is not an implied
relevant
consideration in the sense understood by the authorities.
- Thirdly, Mr Collins addressed the
various
aspects of Ms Kaufmann's irrationality challenge and submitted that the
Parole
Board
adopted a particularly cautious approach and, by necessary implication at least, addressed the possibility that Mr
Radford
was displaying an extensive exercise in impression management
rather
than being open and honest at all material times since May 2015.
- Fourthly, Mr Collins submitted that the effect of s. 35 of the Domestic
Violence,
Crime and
Victims
Act 2004 is that only the
victim
of an index offence (i.e. NBV and not
DSD)
has a limited
right
to make
representations
regarding
licence conditions and to
receive
information about these or supervision
requirements
to which the offender is subject in the event of
release.
- Mr Edward Fitzgerald QC for Mr
Radford
submitted that the Court should
respect
the special expertise of the
Parole
Board,
that it was noteworthy that the Secretary of State had not initiated judicial
review
proceedings against the
release
direction, and that it was further to be noted that the Claimants' challenge was not directed primarily to the
Parole
Board's
approach to the material placed before it by the Secretary of State.
- Mr Fitzgerald submitted that evidence of wider offending was not a
relevant
consideration as a matter of legal obligation because it is not one impliedly identified by the governing statute, namely s. 28(6)(b) of the 1997 Act. He emphasised that this cannot be a case-specific analysis: a
relevant
consideration is one which is always germane, not one which may be characterised as obviously material on any given set of facts, and, therefore, irrational to ignore. In circumstances where the Secretary of State had not placed evidence of wider offending before the
Parole
Board
in the dossier, it could not be said that it was entirely obvious that evidence bearing on unindicted offences should be sought out by the
Parole
Board.
Mr Fitzgerald took us carefully through some of the copious material that was before the
Parole
Board,
which included
references
to other potential
victims,
in support of his submission that it was not irrational for this panel in the exercise of its expert judgment not to seek out further evidence.
- In
response
to the Claimants' pure Wednesbury argument, Mr Fitzgerald submitted that the only question to be addressed is whether it was irrational for the
Parole
Board
to conclude that Mr
Radford's
confinement was no longer necessary for the protection of the public. The
risk
he posed was already
very
considerably
reduced
by his inability to work as a taxi driver. The
Parole
Board
gave detailed and coherent
reasons
in support of its conclusion, buttressed by expert evidence, that Mr
Radford's
risk,
such as it was, could be managed in the community.
- Finally, Mr Fitzgerald submitted that the Court should
refuse
relief
in the exercise of its discretion. Evidence of wider offending, had it been available to the
Parole
Board,
would have carried little or no weight in the circumstances of this case.
- Mr Clive Sheldon QC for the Secretary of State adopted a neutral stance in
relation
to the
release
direction. He submitted that decisions of the
Parole
Board
were for it to defend if so advised; given that the criticism of the approach of the panel was in large part based on the absence of information which the Secretary of State's
representatives
could have put before the
Board,
this approach is not surprising. He added that the Secretary of State does not oppose the
victims'
challenge.
The
Vires
of
Rule
25
- On this topic, Mr Squires and Mr Gavin Millar QC for News Group Newspapers Ltd advanced the case in oral submissions. Ms Kaufmann did not develop her written argument. Mr Fitzgerald did not oppose the giving of greater publicity to the
Parole
Board's
reasons.
Mr Collins was silent. As we have already pointed out, the
Parole
Board
is not
responsible
for the terms of
Rule
25, and we should add that the current
Parole
Board
chair, Professor Nick Hardwick, has publicly stated that there should be greater transparency. Mr Sheldon defended
Rule
25 on a number of grounds.
- Mr Squires submitted that
Rule
25 is an exorbitant provision which in its blanket terms is ultra
vires
s. 239(5) of the 2003 Act because it offends the principle of legality and is not strictly necessary. The fundamental
rights
at stake are the open justice principle and the
victims'
right
of access to the court. The general or ambiguous language of s. 239(5) did not expressly or by necessary implication authorise the trammelling of these
rights,
was not justified by a pressing social need, and went beyond the minimum interference necessary to achieve the appropriate objectives of
Parole
hearings.
- Mr Squires advanced five propositions in
relation
to the
victims'
right
of access to the court. These were, first, there is a
right
of unimpeded access; second, that
right
is interfered with if obstacles to its unimpeded exercise are put in place; third,
victims
require
sufficient
reasons
for
Parole
Board
decisions otherwise their
right
is "
rendered
nugatory"; fourth, the
right
to be given sufficient
reasons
does not
require
the disclosure of all the material in the dossier; and fifth, the
right
applies to judicial
review
proceedings. Although it has been open to the
victims
in this case to bring judicial
review
proceedings without having the
reasons
or any gist of them in advance, and those
reasons
have now been provided in the litigation, their
right
of access to the court was impeded to the extent that the absence of
reasons
rendered
it harder to evaluate whether there might be a meritorious challenge to the
release
direction.
- Finally, Mr Squires submitted that Directive 2012/29/EU and the
Victims'
Code of Practice
require
that
victims
be provided with the
reasons
for an offender's
release.
- The oral argument of Mr Gavin Millar focussed on the open justice principle. He submitted that the
Parole
Board
is clearly a court for these purposes because it exercises the judicial power of the State. Although it is an aspect of the open justice principle that hearings are in public Mr Millar was content to assume that closed hearings could be justified to
respect
the
rights
of prisoners. He submitted that any need for a private hearing could not be deployed as a parallel or concomitant justification for a blanket prohibition on the promulgation of information, including the giving of
reasons,
redacted
as necessary, after the event. Indeed, this is what happens in national security cases where there is a closed material procedure: the court hands down an open judgment which sets out as much information as possible, consistent with the interests of national security.
- Mr Millar also submitted that the common law
right
to freedom of expression and the presumption of openness are fundamental
rights
which
Rule
25 cuts across: see, in particular, Kennedy
v
Information Commission [2015] AC 455. He advanced broadly similar arguments under the
rubric
of Article 10 of the Convention.
- Mr Sheldon's
robust
defence of
Rule
25 was launched with the submissions that the Mayor did not have standing to challenge the
Rule
or the
release
direction; that the claims are out of time, because
Rule
25 was in force as long ago as 22nd November 2016; and, that the issue is now academic because the
victims
and the Mayor have seen the dossier, the press have been given sufficient information, and the Secretary of State has indicated that the
Rule
is under
review.
- Mr Sheldon submitted that the prohibition in
Rule
25 does not preclude information being given to a specific category of individuals (e.g.
victims),
that the name of the offender and the fact of his
release
is in any event not "information" for the purposes of the
rule,
and that the
victims
can be given further information, including a summary of the
Parole
Board's
reasons,
under the Code of Practice for the
Victims
of Crime and the
Victim
Contact Scheme Guidance, PI 48/2014.
- As for the merits of the
vires
challenge, Mr Sheldon submitted that no fundamental
rights
are engaged. The open justice principle is not absolute and the
Parole
Board
is an historic exception. The
right
of access to the court is not impeded by
Rule
25: this would only be the case if the
Parole
Board
had a general duty to give
reasons,
and
victims
a correlative
right
to
receive
them, and none exists. The
victims'
standing, which Mr Sheldon concedes, does not confer or generate the
relevant
right.
Finally, any
right
to
receive
information at common law is adjunctive to the open justice principle and is not free-standing.
- Even if, contrary to the above, one or more fundamental
right
is in play, Mr Sheldon submitted that by enacting s. 239(5) in its admittedly broad terms Parliament has by necessary implication authorised both private hearings and the prohibition against provision of information, which was the default position before 2011.
The Issues
- We must emphasise that the foregoing is no more than an outline of the parties'
respective
cases and submissions, and we have not ignored the detailed and careful manner in which often complex arguments were elaborated. In the light of these submissions, and in the interests of clarity and logical analysis, we propose to address the issues which arise in the following sequence:
i) The Mayor's standing to bring this challenge.
ii) The Wednesbury challenge: sub-divided into (a) pure Wednesbury or irrationality, and (b) failure to take into account
relevant
considerations. We take the Wednesbury questions in this order although Ms Kaufmann for understandable forensic
reasons
placed (b) before (a).
iii) The challenge to the
vires
of
Rule
25: sub-divided into (a) the Secretary of State's
various
objections (
viz.
delay and challenge now academic), (b) whether any
relevant
fundamental
rights
are engaged, and (c) whether
Rule
25 impliedly authorises the infringement of such
rights.
Standing
- Mr Squires points out that the Mayor has a series of powers and
responsibilities
which give him, he says, an obvious interest in tackling crime and in the operation of the criminal justice system as it applies to London, including in
relation
to support provided for
victims
and the confidence which they, and the wider public, have in the functioning of the justice system. The Mayor also has a number of specific and
relevant
statutory powers: including under the Police
Reform
and Social
Responsibility
Act 2011, as the occupant of the Mayor's Office for Policing and Crime ("MOPAC"), a statutory duty to "secure that the Metropolitan Police force is efficient and effective" (s. 6(3)), a duty to issue a "police and crime plan" (s. 6(1)), and a duty to "make arrangements for the exercise of … functions [of criminal justice bodies] so as to provide an efficient and effective criminal justice system for the police area" (s. 10(3)). The current police and crime plan promulgated by MOPAC in March 2017 identifies five priority areas, including "a better criminal justice service for London" and to tackle "
violence
against women and girls". It aims to "prevent these crimes, tackle offending behaviour and support
victims".
- In his witness statement dated 21st February
2018
the Mayor has carefully explained to the Court his interest in this exceptional case: in particular, the fact that Mr
Radford's
crimes are obviously associated with London; the need to improve the confidence of
victims
of sexual
violence
to
report
crimes against them; and:
"… given the
very
surprising decision at the heart of this case, the grave concern it has caused among Londoners and the potential implications for women and girls in particular, I felt compelled to do what I could to ensure that the
Parole
Board's
decision
received
the full scrutiny of the Court and that in the future
victims,
if they wish, are provided with explanations for the
Board's
decisions."
- Given the Mayor's legitimate concerns, Mr Squires submitted that he could scarcely be characterised as a "mere busybody": see, for example, Walton
v
The Scottish Ministers [2013] PTSR 51, at [90]-[92] and
R
(O)
v
Secretary of State for International Development [2014]
EWHC
2371, at [12]. Unsurprisingly, he stressed the exceptional circumstances of this case, the widespread concern it has generated, and the breadth of the public interest in it.
- We do not doubt the strength and sincerity of the Mayor's concerns on behalf of the
victims
in particular and Londoners in general. Mr
Radford's
crimes were committed in London, in a licensed taxi, in circumstances where his
victims
were entitled to trust a taxi driver implicitly. It was this trust that enabled Mr
Radford
to commit these offences in the first place; and it was his abuse of it, on whatever scale, that has given
rise
to such public interest in this case.
- However, in our judgment none of these matters confers standing on the Mayor to bring this claim. The panoply of functions to which he has drawn to our attention is
very
general in scope, and does not
relate
in any
respect,
even indirectly, to the workings of the
Parole
Board
or to its decisions in any particular case. The same would apply to sentencing decisions given in the criminal courts. The Mayor is, of course, entitled to comment on
Parole
Board
decisions, and any concerns he might express would attract public attention, but, in our
view,
he is in no different position from any other politician or, indeed, any member of the public.
- There are situations where the Court adopts a
very
liberal approach to the issue of standing, but this is not one of them. For example, in
R
v
Foreign Secretary, ex parte
Rees-Mogg
[1994] QB 552 this Court accepted "without question" that Lord
Rees-Mogg
had standing to seek judicial
review
of the Foreign Secretary's decision to
ratify
the Maastricht treaty "because of his sincere concern for constitutional issues" [at 562A]. However, in that case if Lord
Rees-Mogg
did not have standing then no one did. In the present case, the Secretary of State as a party to the proceedings before the
Parole
Board
was a natural claimant, and the standing of the
victims
has not been placed in issue. These are, or would be, obviously better-placed challengers.
- The test for standing is discretionary and not hard-edged. We are not to be understood as saying that the Mayor is a "mere busybody" and that his bona fide concerns carry no weight. As Lord
Reed
JSC explained in AXA General Insurance Ltd
v
HM Advocate [2012] 1 AC 868, at [170]:
"A
requirement
that the applicant demonstrate an interest in the matter complained of will not however operate satisfactorily if it is applied the same way in all contexts. In some contexts, it is appropriate to
require
an applicant for judicial
review
to demonstrate that he has a particular interest in the matter complained of: the type of interest which is
relevant,
and therefore
required
in order to have standing, will depend upon the particular context. In other situations, such as where the excess or abuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the
rule
of law … What is to be
regarded
as sufficient interest to justify a particular applicant's bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial
review
in that context."
We should add that this passage was cited by Lord
Reed
at [93] of his judgment in the Walton case, immediately after the paragraphs set out in Mr Squires' skeleton argument. In our judgment, to deny the Mayor standing would not disable the Court from performing its function to protect the
rule
of law. The Mayor cannot be
regarded
as a proxy for the interests of the
victims
because these have been fully safeguarded by Ms Kaufmann and those supporting her. Overall, the Mayor's interest falls on the wrong side of the line.
- Nonetheless, having
received
detailed submissions by Mr Squires on both substantive issues, we cannot simply put them to one side; they must be taken fully into account. It follows that our
ruling
as to the Mayor's lack of standing is largely academic in terms of the present case but not in
relation
to future litigation on similar facts.
- We should add that the standing of
DSD
and NBV to bring these proceedings has not been put in issue by any party: indeed, at the preliminary hearing, it was conceded. We
recognise
that, at that time, Mr
Radford
did not have (or had only just secured) legal
representation
and had Mr Fitzgerald sought to challenge the grant of permission on this basis, it may be that it would have been necessary to hear him. In the event, he did not and we consider that it is too late for the point to be taken, even by the Court (which did not
reserve
the standing of
DSD
and NBV as it did in
respect
of the Mayor).
- Having said that, it is necessary to make the following brief observations. NBV's
right
to make
representations
in
relation
to the
Parole
Board's
release
direction under s. 35 of the Domestic
Violence,
Crime and
Victims
Act 2004 was limited to the proposed licence conditions, and did not cover whether Mr
Radford
should be
released
at all. Thus, her undoubted locus to apply for judicial
review
of the licence conditions would not, for this
reason
alone, give her a lever into the substance of the
release
direction. Given the Secretary of State's early indication that he would not be seeking to challenge the
Parole
Board's
decision, there is considerable force in the contention that had the standing of
DSD
and NBV been placed in issue that would have disabled this Court from performing its function (if it considered it appropriate) to protect the
rule
of law. Accordingly, it may well be that the present case is distinguishable from
R
(Bulger)
v
Secretary of State for the Home Department [2001] 3 All ER 449, where it was held that Mr Bulger did not have standing to bring judicial
review
proceedings against the setting by the Lord Chief Justice of the tariffs in the cases of Thompson and
Venables.
This was because the Lord Chief Justice was performing judicial functions in
relation
to sentencing, and "the nature of [the] impact … [of that decision] was properly channelled through the only proper parties, the Crown and the defendant". In the end, however, we have not had to
resolve
these questions.
- Given that the claim of News Group Newspapers Ltd is not against the
release
direction but the application of
Rule
25 to it, we do not consider that any standing point arises. In any event, the issue has been superseded by the grant of permission.
The Wednesbury Challenge
Irrationality
- The issue is whether the
release
decision was "so outrageous in its defiance of logic or of accepted moral standards that no sensible person [here, the
Parole
Board]
who had applied his mind to the question to be decided could have arrived at it": see Lord Diplock in CCSU
v
Minister for the Civil Service [1985] AC 374 at 410G. This issue must be addressed, as Ms Kaufmann accepts, upon an examination of the material that was before the
Parole
Board
rather
than ought to have been. Furthermore, the question is not whether the
Parole
Board
"erred in fact": this
rare
sub-category of judicial
review
applies only to situations where the
relevant
fact is or has been established, and it has not been proved that Mr
Radford
has offended more widely. We
repeat
that the findings of Green J are not binding on him.
- The evaluation of
risk,
central to the
Parole
Board's
judicial function, is in part inquisitorial. It is fully entitled, indeed obliged, to undertake a proactive
role
in examining all the available evidence and the submissions advanced, and it is not bound to accept the Secretary of State's approach. The individual members of a panel, through their training and experience, possess or have acquired particular skills and expertise in the complex
realm
of
risk
assessment.
- The courts have emphasised on numerous occasions the importance and complexity of this
role,
and how slow they should be to interfere with the exercise judgment in this specialist domain. In
R
(Alvey)
v
Parole
Board
[2008]
EWHC
311 (
Admin),
at [26] Stanley Burnton J, as he then was, neatly encapsulated the position as follows:
"The law
relating
to judicial
review
of this kind may be shortly stated. It is not for this court to substitute its own decision, however, strong its
view,
for that of the
Parole
Board.
It is for the
Parole
Board,
not for the court, to weigh the
various
considerations it must take into account in deciding whether or not early
release
is appropriate. The weight it gives to
relevant
considerations is a matter for the
Board,
as is, in particular, its assessment of
risk,
that is to say the
risk
of
re-offending
and the
risk
of harm to the public if an offender is
released
early, and the extent to which that
risk
outweighs benefits which otherwise may
result
from early
release,
such as a long period of support in the community, and in some cases damages and pressures caused by a custodial environment."
- Further, as Lord Phillips CJ observed in
R
(Brooke)
v
Parole
Board
[2008] 1 WLR 1950, at [53]:
"Judging whether it is necessary for the protection of the public that a prisoner be confined is often no easy matter. The test is not black and white. It does not
require
that a prisoner be detained until the
board
is satisfied that there is no
risk
that he will
re-offend.
What is necessary for the protection of the public is that the
risk
of
re-offending
is at a level that does not outweigh the hardship of keeping a prisoner detained after he has served the term commensurate with his fault. Deciding whether this is the case is the
board's
judicial function."
- Brooke was heard in the Court of Appeal alongside other appeals; those went before the House of Lords and were affirmed on different grounds: see
Regina
(James)
v
Secretary of State for Justice (
Parole
Board
intervening) ([2010] 1 AC 553). Lord Phillips' general statement of principle was not undermined. At the conclusion of his speech in the House of Lords, Lord Judge CJ stated, at [134]:
"In expressing myself in this way, I am not to be taken to being encouraging applications by prisoners for judicial
review
on the basis that the prisoner may somehow direct the process by which the
Parole
Board
should decide to approach its section 28(6)
responsibilities
either generally, or in any individual case. These are question pre-eminently for the
Parole
Board
itself. Although possessed of an ultimate supervisory jurisdiction to ensure that the
Parole
Board
complies with its duties, the
Administrative
Court cannot be invited to second-guess the decisions of the
Parole
Board,
or the way it chooses to exercise its
responsibilities.
Your Lordships were told that the
Board
is frequently threatened with article 5(4) challenges unless it
requires
the Secretary of State to provide additional material. Yet it can only be in an extreme case that the
Administrative
Court would be justified in interfering with the decisions of what, for present purposes, is the "court"
vested
with the decision whether to direct
release,
and therefore exclusively
responsible
for the procedures by which it will arrive at its decision."
Although these general statements were made in the context of the procedure to be adopted in individual cases in discharge of the
Parole
Board's
core function under s. 28(6) of the 1997 Act, they should equally apply to this Court's approach to the substance of
release
decisions.
- Finally, we should touch on one sentence in the judgment of Sir Thomas Bingham MR, as he then was, in
R
v
Parole
Board,
ex parte Watson [1996] 1 WLR 906, at 916H-917A:
"In exercising this practical judgment [sc. whether or not to direct
release]
the
board
is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious harm to the public against the need to protect the public against a man who is not unlikely to cause such injury. 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. This is the test which section 34(4)(b) prescribes, and I think it is equally appropriate under section 39(4) [emphasis supplied]"
- It is to be noted that s. 34(4)(b) of the Criminal Justice Act 1991 is in the same terms as s. 28(6)(b) of the 1997 Act. We do not, however,
read
this passage from Sir Thomas Bingham's judgment as indicating that the need to protect the public is some extra factor which weighs particularly heavily in the
Parole
Board's
decision-making. He was making the point that although a balance fell to be struck (see his previous two sentences), the essential statutory question for the
board,
and the one to which its decision must be directed, is whether the prisoner's continued confinement is no longer necessary for the protection of the public. This may well justify a cautious approach on the part of the
Parole
Board
– and, on our understanding of his submissions, Mr Collins accepted as much – but it cannot warrant placing a special onus on the prisoner to demonstrate that he is no longer dangerous.
- We turn to address Ms Kaufmann's submissions on the irrationality question. We
recognise
that there is considerable force in some of the submissions she advanced. First, it is
very
rare
for a prisoner to move directly from a Category A establishment to
release
without any intervening period at a lower categorisation, still less open conditions. At paragraph 77 of his first witness statement, Mr Martin Jones informed the Court that in the financial year 2016/7 there were 63 prisoners
released
from Category A prisons. At paragraphs 2-7 of his second witness statement, this figure was broken down and it appears that "on the basis of the figures available, excluding
recalls,
6 Category A prisoners were
released
directly from Category A prisons in the 2016/7 financial year". These data lend support to the proposition that
release
from Category A is exceptional, that strong
reasons
to justify it must be identified, and that the more cautious, orthodox approach urged by those within HMP Wakefield should be given considerable weight. There are obvious advantages in subjecting a prisoner to
regimes
of lessening stringency in order properly to test the
robustness
of the
risk
assessment.
- Secondly, there are a number of striking features of Mr
Radford's
case which give
rise
to concern. His change of position was a dramatic
volte
face which came after at least six years of his adamantly maintaining his innocence and attempting to secure his
release
through the court system and the CCRC. There are numerous
references
in the dossier to the actuality or possibility of impression management, a suggested character trait which chimes
rather
too uncomfortably with the manner in which Mr
Radford
must have secured the trust of his passengers from the front seat of his taxi. The possibility that he was not being open and honest with the professionals and the Panel itself fell to be considered.
- With
respect,
it does not seem to us that this possibility was thoroughly probed by the independent psychologists, two of whom had been instructed by Mr
Radford
and the third had previously been instructed by him, or by the panel of the
Parole
Board
itself. There were some inconsistencies as to the timing of the alleged "trigger" which directly emerge from a close examination of the dossier which do not appear to have been examined. Ms Kaufmann's forensic instinct located these inconsistencies for our benefit, but we are left wondering why they were not exposed, and explored as appropriate, by the Panel, in particular by its legally qualified member. Furthermore, whether or not the
rape
offence lasted for just four seconds, we have some difficulty with Mr
Radford's
account that the sexual assaults amounted to no more than his touching his stupefied
victim's
leg and masturbating. Mr
Radford
has not accepted the circumstances of the offence of assault by penetration, denying that his
vibrator
ever penetrated the
vagina
of his
victim.
- We have examined the chair's notes of the hearing on 8th November 2017 with a
view
to ascertaining whether any questions were asked of Mr
Radford
by the panel itself directed to his credibility or
reliability
as a historian in
relation
to the index offences. We have found nothing. When pressed by Garnham J on this point, Mr Collins was unable to draw anything to our attention.
- Overall, the possibility exists that Mr
Radford
has provided what may be described as a carefully calibrated account, steering adroitly between admitting too much and too little,
rather
than one that is entirely open and forthcoming.
- On the other hand, not all of Ms Kaufmann's arguments were equally compelling. The panel was not bound to accept the Secretary of State's categorisation of Mr
Radford
made on different evidence and applying a different test. In any event, the
Parole
Board
is independent of the Secretary of State. Further, in our
view,
the
Parole
Board
was entitled to attach weight to Mr
Radford's
successful completion of the SOTP
rather
than to hold this against him on account of
recent
statistical evidence
relating
to the cohort of sex offenders as a whole. Having effectively
required
him to enter the SOTP as a means of demonstrating his insight and lowering of
risk
factors, the proposition that this should now be held against him has shades of Catch 22. It is true, as Ms Kaufmann submitted, that two of the psychologists, P9 and P12, altered their
view
in Mr
Radford's
favour, but this was a matter for the panel to consider, and it is clear that it did. Finally, it is also true that Mr
Radford
could circumvent one or more of the licence conditions by acquiring another SIM card or computer, but the same point could be made in
relation
to all sex offenders.
- We were invited by all Counsel to apply an anxious scrutiny to this case. Although this is not the sort of situation where the anxious scrutiny principle is directly applicable in the sense in which Lord Bridge was using the term (cf.
R
v
Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514), we have given Ms Kaufmann's powerful submissions
very
careful, extended consideration.
- Ultimately, we are not persuaded that this panel
reached
an irrational decision. It is not sufficient for the Claimants' purposes to have persuaded us, as they have done, that this decision is surprising and concerning. The panel had the benefit of expert advice from three psychologists with experience in complex cases of this sort. The panel gave clear and detailed
reasons
explaining why it had
reached
the conclusion that Mr
Radford's
risk
factors had diminished to a point where he could be safely managed outside a prison environment within the framework of a series of
reasonably
robust
licence conditions. The panel was fully aware that it was taking an unusual and unorthodox step, and in so doing was
rejecting
the assessments of those who had had dealings with Mr
Radford
over time. Although the prison witnesses were not altogether independent, there is nothing to indicate that they were approaching Mr
Radford's
case other than fairly.
- The possibility that Mr
Radford
is devious, calculating and an expert manipulator could not have been lost on this panel. Apart from the
various
references
in the dossier, it is entirely
reasonable
to assume that an expert panel would have sufficient experience of human nature to understand his psychological profile. Further, to be fair to Mr
Radford,
these are not traits which are immutable or incapable of amelioration.
- The issue which has caused us the greatest difficulty is whether, in the light of the evidence that was in the dossier, it was irrational for the panel not to have probed Mr
Radford
on the account he had provided,
rather
than appear to have accepted it at face
value.
We emphasise that for the purposes of this exercise we are excluding from account, as Ms Kaufmann invited us to do, any additional evidence that might have been obtained following inquiry. Our examination of Mr
Radford's
version
has led us into a degree of scepticism such that it would be safe to conclude that had any of us been on the panel a number of questions would have been asked. That, however, is not the test. The issue for this Court is whether it was irrational for the panel to proceed as it did,
recognising
always that it was for the panel to decide what questions to ask in all the circumstances of the case. Of course, without the additional evidence which we address below, any probing of Mr
Radford
could not have been with
reference
to material indicating that he might be wrong. Not without some hesitation, we cannot conclude that it was irrational to fail to probe Mr
Radford
along the lines we have adumbrated.
- A
risk
assessment in a complex case such as this is multi-factorial, multi-dimensional and at the end of the day quintessentially a matter of judgment for the panel itself. This panel's
reasons
were detailed and comprehensive. We are not operating in an appellate jurisdiction and the decision is not ours to make. We are compelled to conclude that the decision of the panel must be
respected.
It follows that the irrationality challenge, in the terms in which it was advanced by Ms Kaufmann (adopting also those made by Mr Squires), cannot be upheld.
Failure to have
regard
to
Relevant
Considerations
- Despite
references
in the dossier to "80+ potential
victims",
it is clear that the panel did not take this factor into account. Specifically, the panel did not obtain any evidence bearing on the issue of possible wider offending, no questions were asked of Mr
Radford
about it, and the
reasoning
in the
release
direction is premised solely on the commission of the index offences on the terms admitted by Mr
Radford.
On Ms Kaufmann's primary formulation, the question arises whether the panel, in approaching Mr
Radford's
case in this manner, failed to take into account a
relevant
consideration, namely "critical evidence of wider offending". She submitted that this was "obviously material" because the period and extent of Mr
Radford's
offending was
relevant
to the nature and degree of his
risk
– if the statutory question is whether his confinement is no longer necessary for the protection of the public, the starting point must be ascertained – as well as to his insight. If, contrary to his account, his offending started in 2003 and not 2006, the trigger for it could not have been a
relationship
breakdown in 2005 or 2006.
- Both Mr Collins and Mr Fitzgerald contested the proposition that "critical evidence of wider offending" was a
relevant
consideration in the sense in which that concept was used by Lord Greene MR in November 1947, and as explained in subsequent authority. Lord Greene's classic statement of the principle of what is most commonly called "Wednesbury unreasonableness" (see Associated Provincial Picture Houses
v
Wednesbury Corporation [1948] 1 KB 223 at 229) was as follows:
"It is true the discretion must be exercised
reasonably.
Now what does that mean? Lawyers familiar with the phraseology commonly used in
relation
to exercise of statutory discretions often use the word "unreasonable" in a
rather
comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those
rules,
he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."
- In
re
Findlay [1985] AC 318 the issue was whether an implied statutory
requirement
was imposed on the Home Secretary to consult the
Parole
Board
before formulating changes in
parole
policy. The House of Lords held that there was not. Lord Scarman cited with approval observations of Cooke J, as he then was, in the New Zealand case of CREEDNZ Inc
v
Governor General [1981] 1 NZLR 172, at 183:
"What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations
required
to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision."
- Lord Scarman held that these words did not support the submission of Mr Sedley QC for the appellants that no
reasonable
Home Secretary could have
reasonably
omitted to have consulted the
board.
He added [at 334A/B]:
"But, and it is this upon which Mr Sedley has to found his argument [i.e. his Wednesbury argument], the judge in a later passage, at p.183, line 33, did
recognise
that in certain circumstances, notwithstanding the silence of the statute, "there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by ministers … would not be in accordance with the intention of the Act. These two passages are, in my
view,
a correct statement of principle." [emphasis supplied]
These highlighted words, as well as the context, indicate that both Cooke J and Lord Scarman were addressing pure Wednesbury unreasonableness, not a failure to take into account
relevant
considerations. That issue had been covered by Cooke J in the first citation from the CREEDNZ case. If a consideration falls to be taken into account only in certain circumstances, it cannot logically be one which the statute impliedly identifies account must be taken as a matter of legal obligation. If, on the other hand, a matter is so obviously material to a decision on a particular project, it would be Wednesbury unreasonable for the decision-maker to ignore it.
- In
R
(Morgan Grenfell and Co Ltd)
v
Special Commissioner of Income Tax [2003] 1 AC 563, Lord Hobhouse formulated the question as follows [45]:
"A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or
reasonable
for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation."
- In B (a minor)
v
DPP [2000] 2 AC 428, at 464, Lord Nicholls put the matter in slightly less austere terms:
"… "necessary implication" connotes an implication which is compellingly clear."
- Finally, in
R
(on the application of Khatun)
v
Newham LBC [2005] QB 37, Laws LJ analysed Lord Scarman's speech in Findlay as follows [35]:
"In my judgment the CREEDNZ Inc case (
via
the decision in In
re
Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as
relevant
by the decision-maker, then it is for the decision-maker and not the court to conclude what is
relevant
subject only to Wednesbury
review.
By extension it gives authority for a different proposition, namely that it is for the decision-maker and not for the court, subject again to Wednesbury
review,
to decide upon the manner and intensity of inquiry to be undertaken into any
relevant
factor accepted or demonstrated as such."
- The distinction between
relevant
considerations, properly so called, and matters which may be so obviously material in any particular case that they cannot be ignored, is not merely one of legal classification; it has important consequences. If a consideration arises as a matter of necessary implication because it is compelled by the wording of the statute itself, the decision-maker must take it into account, and any failure to do so is, without more, justiciable in judicial
review
proceedings. If, on the other hand, the logic of the statute does not compel that conclusion or, in the language of Laws LJ, there is no implied lexicon of the matters to be treated as
relevant,
then it is for the decision-maker and not for the court to make the primary judgment as to what should be considered in the circumstances of any given case. The court exercises a secondary judgment, framed in broad Wednesbury terms, if a matter is so obviously material that it would be irrational to ignore it.
- It is clear that s. 28(6) of the 1997 Act does not expressly set out any considerations or matters which a panel of the
Parole
Board
is
required
to take into account in all cases, in determining whether or not the prisoner's confinement is no longer necessary for the protection of the public. Nor, in our judgment, can it be said that s. 28(6) compels the conclusion that evidence of wider offending is
relevant
to the statutory question. We agree with Mr Fitzgerald that this conclusion would only flow if evidence of wider offending were always
relevant
to the statutory question: it cannot depend on the circumstances of individual cases. The
Parole
Board
will be aware that a prisoner's index offences, and his criminal
record,
will not necessarily
represent
the sum total of his previous offending, particularly in prolific cases.
- Further, evidence of wider offending will often simply not be available, assuming that it ever came to police attention. Prisoners cannot sensibly be asked open-ended questions by the
board
about whether their
record
gives the complete picture. Even where evidence is available, further investigation or inquiry cannot be mandated in every case; there may well be situations where such evidence could not be
relevant
to the level of the prisoner's
risk.
Given that the statutory test is directed to whether confinement is no longer necessary for the protection of the public, the principal focus in the majority of cases will be on current and future
risk.
A prisoner's
risk
factors will
require
identification, but the degree of
risk
at the time of sentencing will not necessarily
require
precise ascertainment.
- In any event, Ms Kaufmann's submission, in its highest form, tends to elide two questions. The first is whether the panel should have undertaken further inquiry. The second is whether the panel, having done so, should have taken evidence of wider offending into account. Ms Kaufmann's focus was on the second question but it does not arise unless the first question is answered affirmatively. Thus, the
relevant
consideration invoked by Ms Kaufmann is a matter which, by definition, cannot arise in all cases; it only arises if a logically prior step has been undertaken. As a matter of analysis, that step – the undertaking of further inquiry - cannot arise as a matter of legal obligation; and, in any case, there are statements of the highest authority to the effect that the scope of inquiry in any particular case must be a matter for the
board:
see Walker (ibid), per Lord Hope [21] and Lord Judge (in the passage previously cited).
- At the outset of her oral argument, Jay J asked Ms Kaufmann whether there was an alternative formulation to her case on
relevant
considerations, namely that in the particular circumstances of this case it was irrational not to have considered evidence of wider offending. Ms Kaufmann's
riposte
was that there was agreement between her and Mr Fitzgerald that the issue was whether evidence of wider offending was obviously material. She appeared to be adhering to a formulation that tied this limb of her case to an omission to take into account a
relevant
consideration. That, however, was not at all Mr Fitzgerald's formulation, which was why Jay J asked the question. That said, provided that the issue is framed in Mr Fitzgerald's terms – of irrationality
rather
than of omitting to consider
relevant
considerations - there can be no unfairness in our addressing it. In doing so we will avoid the elision between the two questions we have identified at paragraph 144 above.
- Mr Collins' first submission, directed admittedly to Ms Kaufmann's slightly different formulation but for present purposes it does not matter, was that it was simply impermissible for the
Parole
Board
to consider whether Mr
Radford
had committed further crimes. We were taken by counsel to a number of authorities bearing on this topic, as well as the
related
topic of the nature of the evidence, information and material that the
Parole
Board
is entitled to take into account.
- In
R
v
Kidd and others [1998] 1 WLR 604 the Court of Appeal, Criminal Division,
restated
the principle that a defendant is not to be sentenced for an offence unless it has been proved against him by admission or
verdict,
or he has admitted it and asked for the court to take it into consideration when passing sentence for an offence of which he has been convicted.
- In
R
v
Farrar [2007] 2 Cr. App.
R.
(S.) 35, the Court of Appeal, Criminal Division applied this principle to the exercise of determining the issue of dangerousness for the purposes of s. 229 of the CJA 2003. Accordingly, it was wrong for the judge to determine, to the criminal standard, that the defendant was guilty of a separate sexual offence. However, Mitting J (giving the judgment of the Court) added, at [19]:
"The principle must not be taken too far. As the Court in [Kidd]
recognised,
full account can be taken of "acts done in the course of committing that offence or offences even when such acts might have been separately charged". In the specific case of sexual offences against children, evidence about the offences charged may demonstrate a pattern of behaviour before their commission which includes other criminal conduct … Nor, in our
view,
would a judge who had presided over a trial of a defendant charged with a sexual offence at which evidence of similar conduct was given, and must have been accepted by a jury, whether in
relation
to the same or another complainant, be prevented from taking such behaviour into account under section 229(2)(b)."
- Similarly, in
R
v
Considine [2008] 1 WLR 414 a five-judge constitution of the Court of Appeal, Criminal Division (Lord Judge CJ presiding, and giving the judgment of the Court), drew a distinction between "the introduction of a hybrid arrangement into the criminal justice system, in effect the possibility of conviction, or effective conviction, of a serious criminal offence after trial by judge alone in the course of a sentencing decision" [34], which is prohibited, and:
"[36] … the court making the section 229 decision [being] precluded from considering evidence of previous misconduct which would amount to a criminal offence. Arguments advanced on the basis that [Farrar] did so decide are ill-founded. The contrary is true, and in Farrar, the end
result
was that material directly
related
to the earlier incident did in fact contribute to the conclusion that Farrar himself should properly be assessed as dangerous. For this purpose no conviction was necessary. Provided the judge could
resolve
the issue fairly, it was sufficient for the information to be contained in a psychiatric
report
…
[37] We have deliberately declined to lay down any hard and fast
rules
about how the court should approach the
resolution
of disputed facts when making the section 229 assessment. In
reality,
there will be
very
few cases in which a fair analysis of all the information in the papers prepared by the prosecution, events at the trial, if there has been one, the judicial assessment of the defendant's character and personality (always a critical feature in the assessment), the material in mitigation drawn to the attention of the court by the defendant's advocate, the contents of the pre-sentence
report,
and any psychiatric or psychological assessment prepared on behalf of the defendant, or at the behest of the court itself, should not provide the judge with sufficient information on which to form the necessary judgment in
relation
to dangerousness."
- Although these decisions were directed to the sentencing exercise
rather
than to the function of the
Parole
Board,
they do lend support to Mr Collins' submission that the latter should not be determining issues of guilt in
relation
to non-index offences. In any event, it is not the
role
of the
board
to determine a criminal charge: see
R
(West)
v
Parole
Board
[2003] 1 WLR 705. On the other hand, these decisions do not support the proposition that evidence of other offending cannot be considered as part and parcel of a global assessment of
risk.
If that exercise may be undertaken for the purposes of s. 229 of the CJA 2003 on the basis of all the information that is before the sentencing judge, there is no
reason
why it cannot be performed for the broadly similar purposes of s. 28(6) of the 1997 Act.
- Section 229(3)(a) uses the term "information", as opposed to "evidence", as does s. 239(3)(b) in the context of the
Parole
Board.
It is clear from Lord Judge's judgment in Considine that the sentencing judge is given considerable latitude as to the
range
of the information to be considered, subject always to considerations of fairness. In our judgment, the same principle applies to the
Parole
Board.
- Our attention was drawn to a number of authorities which show that hearsay evidence is admissible in proceedings before the
Parole
Board
and that matters which are disputed by the prisoner do not necessarily
require
cross-examination of witnesses, subject to the demands of fairness in the individual case. We
refer
in particular to
R
(Sim)
v
Parole
Board
[2004] QB 1288 [52-59],
R
(Brooks)
v
Parole
Board
[2004] EWCA Civ 80 and
R
(McGetrick)
v
Parole
Board
(in the Divisional Court, [2012] 1 WLR 2488 and in the Court of Appeal [2013] 1 WLR 2064). Although these were
recall
rather
than first
release
cases, the statutory test and the applicable principles are the same: see Watson (ibid) at 916H, 917H-918B and 919F. It follows that we cannot accept Mr Fitzgerald's submission that
recall
cases are logically distinct because the focus must be on what has occurred after initial
release.
That will be the starting-point for the inquiry, but the
Board's
function in a
recall
case is to determine the same critical question as to the necessity for continued confinement. Nor, in a first
release
case is there anything in s. 28(6) of the 1997 Act or 239(3) of the 2003 Act which limits the inquiry, either expressly or by necessary implication, to post-conviction matters.
- Mr Fitzgerald dwelled on McGetrick, a case which has generated some difficulty. The dossier submitted to the
Parole
Board
by the Secretary of State contained material which had been prepared for, but not used, in the claimant's criminal trial. This material comprised allegations of a number of further sexual offences in
respect
of which the claimant had not been convicted, no indictment in
relation
to them having ever been pursued. Stanley Burnton LJ, giving the judgment of the Divisional Court with which King J agreed, held that the
Parole
Board
did not have power to exclude this material from the dossier, and that its inclusion was not in breach of the Secretary of State's policy. Further:
"30. … Where, however, the matter in question (whether it amounts to a criminal offence or not) has not been the subject of a prosecution or adjudication, the facts will not have been established in court, and the Secretary of State is entitled to
require
the
board
to consider any
relevant
evidence, including witness statements.
…
33. Kennedy LJ's summary [in Brooks]
remains
relevant
under current legislation. It is essential to bear in mind that it is not the function of the
board
to find a prisoner guilty or innocent of any offence or other misconduct. Its function is to assess the
risk
that would be created if the prisoner is
released
on licence. For that purpose, the
board
must take into account hearsay and other evidence of misconduct or criminal offences on the part of the prisoner, whether that misconduct or offence took place before or after or at the same time as the offending for which he was sentenced. Similarly, the
board
must take into account evidence of any good conduct of the prisoner, whenever it took place. The weight, if any, to be given to that evidence is a matter for the
board."
- The Court of Appeal in McGetrick
reversed
the decision of the Divisional Court on the issue of whether the
Parole
Board
had power to exclude untried material from the dossier in the interest of fairness. The other observations of Stanley Burnton LJ, however, and in particular those set out at [33] of his judgment,
remain
intact. In our judgment, these are clearly in line with other authority and
reflect
the breadth of the statutory provisions which govern the functions of the
Parole
Board.
In short, there is no implied limitation on the nature or temporal character of the information the
Parole
Board
may take into account in assessing
risk:
the only constraint is that the
board
must act fairly.
- Drawing these strands together, whereas we agree with Mr Collins that it is not the
role
of the
Parole
Board
to determine whether a prisoner had committed other offences, we cannot accept the extension of that submission, shared by Mr Fitzgerald albeit advanced in slightly different terms, that it is precluded from considering evidence of wider offending when determining the issue of
risk.
The distinction between these formulations is important, not least because it was occasionally obscured during the course of Ms Kaufmann's argument. It was, however,
very
clearly drawn at the beginning of her submissions in
reply.
As for Mr Collins's submission that the distinction between taking account of evidence of wider offending and
refraining
from making determinations about it is artificial, we cannot agree: it is important. At the
risk
of
repetition,
in the circumstances of the present case, this evidence or material could have been used as a means of probing and testing the honesty and
veracity
of Mr
Radford's
account.
- The next question which arises is whether it was irrational for the
Board
not to have undertaken further inquiry.
- Both Mr Collins and Mr Fitzgerald stressed the height of the bar that needs to be surmounted before a conclusion of irrationality could properly be drawn. Apart from all the judicial statements about this, from which we do not
resile,
counsel emphasised that the dossier in Mr
Radford's
case contained a plethora of material about him which appeared to cover all
relevant
ground, as well as detailed, careful expert evidence. Moreover, the dossier covered all the matters set out in Schedule 1 to the
Parole
Board
Rules
2016, including "the prisoner's attitude to the offence for which the offender
received
the sentence which is being considered by the
Parole
Board".
There is no express
requirement
to seek information about the prisoner's attitude beyond this, although such inquiry is not precluded.
- These were powerful submissions which we have considered
very
carefully indeed. We
recognise
that this is a difficult, troubling case with many exceptional features.
- Ultimately, however, we are driven to conclude that, in the particular circumstances of this case, the
Parole
Board
ought to have carried out, or have instigated the carrying out of, further inquiry. Our
reasons,
advanced cumulatively, are as follows:
i) There were numerous
references
in the dossier to "80+ potential
victims".
It was clear that Mr
Radford's
case was that he only offended against twelve
victims,
and that this was confined to the period October 2006 to February 2008. It follows that, putting to one side the two cases where he was acquitted, if Mr
Radford's
case is
right
the CPS had, quite
remarkably,
selected for inclusion in the indictment just those cases where offences had in fact been committed.
ii) Mr
Radford's
account, subject to the inconsistencies we have mentioned, was punctilious in its precision as to timing and the sequence of events which led to his first offence. We do not go so far as to hold that Mr
Radford's
account is inherently implausible, but there was, at the
very
least,
reason
to doubt his explanations as a matter of common sense.
iii) Other aspects of Mr
Radford's
account, including possible minimisation of what he did in the twelve cases where he was convicted, have already been addressed by us at paragraphs 124-5 above. We believe that these concerns do not merit
repetition.
iv) There were several
references
in the dossier to proceedings brought by
victims
against the Metropolitan Police. In November 2017 the judgments of both Green J and the Court of Appeal were available. It did not
require
an exercise in speculation to infer that this litigation might have involved some of the "80+ potential
victims"
and even if the
Parole
Board
was not going to look at the number of
victims,
far more information about the circumstances of his offending would have been apparent.
v)
Mr
Radford's
change of position came after at least 6 years of adherence to an account which he now accepts was completely untrue. This cannot have been an example of a prisoner persuading himself that he had not offended. This factor, coupled with Mr
Radford's
apparent deftness in impression management, should have engendered a considerable degree of dubiety.
vi)
The
Parole
Board
was aware, or at least ought to have been aware, that it had been provided with no material from the police or the CPS with which to probe the honesty of Mr
Radford's
account in
relation
to the index offences. The prosecution's opening note provided for the purposes of the criminal trial and the judgment of Green J could easily have been provided if sought.
vii)
A key issue in this case, and one directly
relevant
to Mr
Radford's
continuing
risk,
was whether he was being open and honest.
- Had some basic lines of inquiry been undertaken, it would
very
rapidly
have become apparent that
DSD
was claiming that she was sexually assaulted, if not
raped,
by Mr
Radford
as long ago as 2003, and that a "
rape
kit" containing strips of Nytol (cf. the assertion by Mr
Radford
that he used Nytol only once, as well as the forensic evidence
relating
to
DSD)
and a box of condoms, amongst other items, had been found in the boot of his car. In our
view,
this could or should have generated further lines of inquiry, including obtaining, with her consent, a copy of
DSD's
witness statement used in the civil proceedings, of counsel's opening to the jury in the criminal trial and the April 2011
report
relating
to the conclusion of Operation Danzey. Yet further lines of inquiry would probably have led to the
revelation
that Mr
Radford
had settled the civil claims of a number of individuals who were not his indicted
victims.
We appreciate that the settlement was without admission of liability but that would not have precluded questions.
- In our judgment, this material would have provided a sound platform for testing and probing Mr
Radford's
account, either at a pre-hearing interview by a member of the panel or at the hearing itself. The psychologists would also have been asked to
reconsider
their assessments in the light of it.
- At this point, it is unnecessary to examine Ms Kaufmann's submission that this evidence should have been taken into account because it was so obviously material. The prior question which we have examined is whether this evidence should have been obtained and, in our judgment, it plainly should have been.
- Mr Fitzgerald
valiantly
submitted that it was clear to the Panel that Mr
Radford
was a serial offender, and that whether he had or may have committed a significant number of further offences was not
relevant,
or should carry
very
little weight. We cannot accept this. Once the prior question we have identified has been asked and answered, and additional material obtained, we would hold that it was so obviously material that it would have to be considered. In any case, in strict public law terms the issue for us is whether we could be confident that this additional material could make no difference to the outcome, in other words that the
Parole
Board
would inevitably have taken the
view
that it is irrelevant. It would be impossible for us so to conclude.
- It follows that the
release
direction must be quashed and Mr
Radford's
case
remitted
to the
Parole
Board
for
rehearing
before a different panel in the light of this Court's findings. We would encourage the
Parole
Board
to ensure that the panel included someone with judicial experience.
The
Vires
Challenge
Preliminary Objections
- It is convenient first to address Mr Sheldon's
various
submissions to the effect that the substance of the
vires
challenge should not be considered by this Court in the exercise of its discretion. He argues that all of the Claimants are out of time to challenge
Rule
25. This point was not taken in the Secretary of State's skeleton argument filed for the purposes of the permission hearing, and permission was granted by this Court on an unconditional basis (cf. the position as
regards
the standing of the Mayor).
- In the leading case on this topic,
R
v
Criminal Injuries Compensation
Board,
ex parte A [1999] 2 AC 330, it could be inferred that time had been extended by the judge granting permission [340D/E], but the same inference cannot be drawn in the present case. However, in the light of Lord Slynn's summary of the position [341A-G], that makes no difference to the outcome. This Court has granted permission to the Claimants to challenge the
vires
of
Rule
25, and the issue cannot now be
re-opened.
The timeliness or otherwise of this challenge is part of that issue. In theory, as we have previously observed in
relation
to standing, it could have been
re-opened
had an application been made to set aside permission, but none has been brought. In any event, such an application would have failed.
- Putting that argument to one side, the claims by
DSD/NBV
and the Mayor are clearly not out of time. We agree with the Claimants that there is a distinction between cases where the challenge is to a decision taken pursuant to secondary legislation, where the ground to bring the claim first arises when the individual or entity with standing to do so is affected by it, and where the challenge is to secondary legislation in the abstract. Cases falling into the first category include
R
v
Secretary of State for the Home Department, ex parte Leech [1994] QB 198 (where the point was not taken on behalf of the Secretary of State, but would have been had it possessed merit),
R
v
Secretary of State for the Home Department, ex parte Saleem [2001] 1 WLR 443 and
R
(T)
v
Chief Constable of Manchester [2015] AC 49; an example of a case falling into the second category is
R
(Cukurova Finance International Ltd)
v
HM Treasury [2008]
EWHC
2567 (
Admin).
It is arguable that Mr Sheldon is on stronger ground in
relation
to the claim of News Group Newspapers Ltd but, if necessary, we would grant an extension of time. Aside from the futility of closing the door of the court on Mr Millar once others have passed through it, and without prejudice to our conclusion that it is too late to take a time point at this stage, there are good
reasons
to extend time, not least because it was only the circumstances of this particular case that focussed press attention on the breadth of
Rule
25.
- We were not impressed by Mr Sheldon's subordinate arguments on discretion. Allowing these Claimants to proceed, even if we could properly prevent them, will not generate a spate of similar claims directed to other
Parole
Board
decisions given, but not publicly promulgated, over the years. Although it is correct to point out that these Claimants have
received
everything (and more) to which an intra
vires
rule
might have entitled them, the legitimacy of
Rule
25 falls to be judged at the point in time before these proceedings were brought. We were informed that the Secretary of State is
reconsidering
Rule
25 and will not publish the
result
of his
review
until after judgment has been handed down, but this cannot be a
reason
for our not doing so.
Are any Fundamental
Rights
in Play?
- Dealing first with the principle of open justice, it is not in dispute that this principle is one of constitutional importance and that the
rights
which flow from it are fundamental in nature. We agree with Mr Millar that the open justice principle is multifaceted and its application is not "all or nothing". As Lord Toulson JSC explained in Kennedy
v
Charity Commission (Secretary of State for Justice and others intervening) [2015] AC 455, at [115]:
"The fundamental
reasons
for the open justice principle are of general application to any such body [
viz.
a body exercising the power of the state], although its practical operation may
vary
according to the nature of the work of a particular judicial body."
- The open justice principle includes the obligation to hold hearings in open court to which the public has access (see Attorney General
v
Leveller Magazine Ltd [1979] AC 440, at 450, per Lord Diplock); the
right
of the press and others to
report
on legal proceedings (see Khuja
v
Times Newspapers [2017] 3 WLR 351 at [16], per Lord Sumption); the placing into the public domain of judicial decisions (see
R
(Mohammed)
v
Foreign Secretary [2011] QB 218, at [37] - [41], per Lord Judge CJ and [189], per Lord Neuberger MR), even in cases where there has been a closed material procedure; and, the obligation to ensure that evidence or information communicated to a court is presumptively available to the public (see
R
(Guardian News & Media)
v
City of Westminster Magistrates Court [2013] QB 618).
- The open justice principle does not apply to tribunals which are not courts, and Mr Sheldon submits that the
Parole
Board
is not a court for these purposes. He does accept that it is a court for other purposes, including the application of Article 5(4) of the Convention. That submission
receives
some support from the fact that the
board
has inquisitorial functions, deploys a degree of informality and does not apply strict
rules
of evidence; and that between 1968 and 1997 its function was to advise the Secretary of State
rather
than make binding determinations. However, matters have moved on and the critical question is whether the body at issue exercises the judicial power of the state: see Pickering
v
Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370, at 417G, and City of Westminster Magistrates Court (ibid), at [46] approved in Kennedy (ibid), at [115]. In the case of the
Parole
Board,
that question must be answered affirmatively: see
R
(Giles)
v
Parole
Board
[2004] AC 1, at [10], and
R
(Brooke)
v
Parole
Board
[2007]
EWHC
2036 (
Admin),
at [2], [14] and [17] (Divisional Court) and [2008] 1 WLR 1950, at [53] (Court of Appeal). The judicial function of the
Parole
Board
is to determine whether a prisoner should
remain
confined after the expiry of his minimum term. Adjudications upon matters of individual liberty are paradigm examples of the exercise of a judicial function.
- Mr Sheldon's more powerful submission was that the
Parole
Board
should be envisaged as occupying an exceptional category because historically its hearings have been in private. He heavily
relied
on Pickering and Lord Bridge's analysis in that case of Scott
v
Scott [1913] AC 417, at 437-438 where Lord Haldane LC carved out a number of exceptions to the open justice principle, including proceedings involving wards of court, the mentally ill and matters of national security ("As the paramount object must always be to do justice, the general
rule
as to publicity, after all only the means to an end, must accordingly yield."). According to Lord Bridge (at [417D-F]):
"Thus the exceptions in paragraph (a) are all proceedings
requiring
for their just disposal the safeguard of privacy which proceedings in wardship always attracted. So also are the proceedings under Part
VIII
of the Act of 1959, now Part
VII
of the Act of 1983, which are concerned with the same subject matter as was formally under the jurisdiction of the judges in lunacy acting on behalf of the Crown as parens patriae. Paragraphs (c) and (d) speak for themselves [national security cases]. The proceedings before a mental health
review
tribunal, itself the creature of the Act of 1959, exercising a novel jurisdiction over the discharge of patients liable to be detained under the Act, are, for obvious
reasons,
included in the exceptions as proceedings which
require
for their just and effective conduct the same cloak of privacy as the common law had always drawn around proceedings in the other categories mentioned."
- Mr Sheldon's submission, as we understood it, was that the
right
to information which the Claimants invoke must be seen in the context of a justifiable
Rule
requiring
Parole
Board
proceedings to be held in private. Accordingly
Rule
22, which the Claimants carefully do not seek to assail, has direct consequences for
Rule
25 which they do attack.
- The Claimants were highly dismissive of Mr Sheldon's argument, contending that he was aiming at the wrong target or was setting up a straw man. Although we
recognise
some of its force we have concluded that his argument cannot be accepted. Notwithstanding Lord Bridge's broad statements of principle in Pickering, which are strictly speaking obiter, it is noteworthy that
Rule
24(4) of the Mental Health Tribunal
Rules
1960 did permit the tribunal in its discretion to direct that information about the proceedings before it could be made public. Furthermore, the law has not
remained
static, and
recent
jurisprudence makes clear that the open justice principle
retains
its
vigour
even in situations where the imperatives of national security have led to proceedings being held, at least in part, in private: see Mohamed (ibid), at [41], [44], [46], [134], [189], [262] and [285].
- Particularly
valuable
in our
view
is the extended analysis of the open justice principle by Lord Toulson JSC in Kennedy, at [113]–[140]. He stressed the
role
of the court in exercising a broad judgment as to where the public interest lies "in infinitely
variable
circumstances". In our judgment, a correct application of this approach leads to the conclusion that the open justice principle may well
require
some information about proceedings which are quite properly taking place in private being put into the public domain, depending on all the circumstances.
- There are no obvious
reasons
why the open justice principle should not apply to the
Parole
Board
in the context of providing information on matters of public concern to the
very
group of individuals who harbour such concern, namely the public itself. Indeed, it seems to us that there are clear and obvious
reasons
why the
Parole
Board
should do so. This information can
readily
be provided in a fashion which in no way undermines the Article 8
rights
of the prisoner and the confidentiality which attaches to it.
- Our conclusion is that the open justice principle, or more particularly the
right
of the public to
receive
information which flows from the operation of that principle, applies to the proceedings of the
Parole
Board.
- A number of subsidiary arguments were advanced as to whether
DSD
and/or NBV have a
right
to information qua
victims
pursuant to Directive 2012/29/EU, the Code of Practice for
Victims
of Crime and the
Victim
Contact Scheme Guidance PI 48/2014, and whether providing information to
victims
is in any case not a breach of
Rule
25 because that would not amount to the making of such information public within the meaning of that
Rule.
We consider that these submissions lead nowhere. They cannot impact on the position of News Group Newspapers Ltd. Neither
DSD
nor NBV was given any information about the
release
decision before these judicial
review
proceedings were brought.
- Mr Sheldon's submission that limited disclosure to
victims
would not be to the public generally was not prefigured in his Detailed Grounds, could not properly be addressed by the Claimants, and appears to us, at first blush, to be without merit: given that there is no suggestion that the
victims
would be bound by any obligation as to confidentiality, there would be nothing to prevent them placing what they were told in the public domain. Finally, if the open justice principle applies, it is not
required
to give way because the
victims
might acquire
relevant
information by some other means.
- In
relation
to the fundamental
right
of access to the court, the
right
in question concerns the ability for a
victim
to challenge the
release
direction (or, given the entitlement to be consulted in
relation
to licence conditions, those conditions) by bringing judicial
review
proceedings. It has
rightly
not been suggested that the door to the
Administrative
Court has been completely barred to them in this case but this was because it was conceded that material should be supplied to all parties on a confidential basis. The argument proceeds on the footing that the blanket
restriction
on the provision of information impedes or interferes with this
right,
or otherwise hinders its exercise: see
Raymond
v
Honey [1983] 1 AC 1 and Leech (ibid), at 210A-D in particular.
- Mr Squires' submission, strongly supported by Ms Kaufmann in writing, is that the
right
of the
victims
to bring judicial
review
proceedings was impeded because, in the absence of any information about the
release
decision and the
reasons
for it, they were firing into the dark. No informed assessment could be made of the merits, and no sensible advice given. In the absence of any information, all that could be said by any
reasonably
objective lawyer was that the decision gave
rise
to concern and appeared to be aberrant.
- Mr Sheldon's answer to this submission was that it
rather
assumed what needed to be established, namely that there was a
right
to such information in the first place. He argued that in the absence of a general common law
right
to
reasons
the postulated interference did not arise.
- In our judgment, Mr Sheldon is correct in submitting that there is no general
right
at common law for persons directly affected by
administrative
decisions to be given
reasons
for them, but he is incorrect is submitting that
DSD
and NBV's case proceeds on that premise. It does not; they invoke a different
right.
They
rely
on the principles enunciated by the House of Lords in
R
(Anufrijeva)
v
Secretary of State for the Home Department [2004] 1 AC 604, and
R
(Corner House
Research)
v
Director of the Serious Fraud Office (JUSTICE intervening) [2009] AC 756, as applied by Green J in
R
(Privacy International)
v
Revenue
and Customs Commissioners [2015] 1 WLR 397, at [142]–[162].
- The
Parole
Board
is a judicial body which under
Rule
24(1) is
required
to provide
reasons
for its decisions and to promulgate these to the parties.
DSD
and NBV are not seeking to access
reasons
through the portal of this
Rule.
Their point of departure is that they have standing to bring these judicial
review
proceedings. Their complaint in these proceedings is not (and does not have to be) that the
Parole
Board
owes a general duty at common law to give
reasons
for its
release
direction. It is that the
release
decision is irrational and that, as a separate matter, a
rule
exists which wrongly prevents the
Parole
Board
from giving them any information about the proceedings, including a summary of the
reasons
for it.
- In order to
vindicate
their argument in
relation
to this separate matter, the
victims
say that the existence of
Rule
25 infringes their fundamental
rights
because it
renders
it more difficult to bring the challenge in the first place. True it is that the fundamental
right
being invoked flows out of the common law, but it is not equivalent to or a synonym for any
right
correlative to a (non-existent) duty in the
Parole
Board
to give
reasons
for its decisions. As Lord Steyn stated in Anufrijeva, at [26]:
"The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is
required
before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical
rule.
It is simply an application of the
right
of access to justice. That is a fundamental and constitutional principle of our legal system."
We should add that "the individual concerned" includes a person with proper standing to seek judicial
review:
see Corner House, as discussed by Green J in Privacy International at [146]–[155].
- The
right
to information, which flows from the
right
of access to the court, is not absolute and will have to yield to stronger competing public interests. However, for present purposes the Claimants do not have to be particularly ambitious; all that they need say is that their
right
of access to the court entitles them to some information about the
release
decision.
Rule
25 disentitles them to any.
- We would hold that an inseparable part or corollary of the
victims'
right
of access to the court entitles them to be given some information about the substance of the
release
decision. In that
regard,
we have not overlooked the decision of the Court of Appeal in Hasan
v
Secretary of State for Trade and Industry [2009] 3 All ER 539. In that case the information sought was highly sensitive and the standing of the claimant was
very
much in doubt.
- In the circumstances, it is unnecessary for us to address the parties' other arguments at common law, under Article 10 of the Convention, and in
relation
to the
rights
of
victims
conferred by the Directive or government policy documents.
Does s. 239(5) Authorise the Infringement?
- The principle of legality is now well-established in our law. The authorities usually cited for it are
R
v
Home Secretary, ex parte Simms [2000] 2 AC 115 and
R
(Daly)
v
Secretary of State for the Home Department [2001] 2 AC 532. As Lord Hoffmann explained in Simms, at 131E-G:
"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."
- Even if some degree of infringement is impliedly authorised, it is incumbent on the executive to justify this by a pressing social need and as being the minimum necessary to achieve the objectives sought. These are matters for the court and not for the decision-maker.
Rule
239(5) contains general and ambiguous words which do not expressly authorise any trammelling of fundamental
rights.
The issues for us are whether authorisation is implied; and, to the extent that it is or may be, whether the infringement is justified.
Rule
25 implements a "blanket ban" on the provision of information. The courts have consistently held that a
rule
of this nature, which does not permit of exceptions, is both unlikely to be impliedly authorised by the enabling statute and difficult to justify. These are unpropitious starting-points for Mr Sheldon. He advanced two submissions in support of the
Rule,
both directed to the issue of implied authorisation. The first was that an examination of the legislative history
reveals
that Parliament must have authorised
Rule
25. The second, effectively an argument by analogy, was that given that proceedings of the
Parole
Board
have always been in private – a state of affairs which Parliament must have authorised despite the generality of s. 239(5) – it follows that the enabling statute also authorises
Rule
25. In our judgment both of these submissions are wrong.
- As for the first submission, Mr Squires took us carefully through the predecessors to s. 239(5) of the 2003 Act in the Criminal Justice Act 1967 and Criminal Justice Act 1991, and to
Rule
25 in
various
versions
of the
Parole
Board
Rules
promulgated in 1992, 1997, 2004 and 2011. In short, the position is that the wording of what is now s. 239(5) has not changed over the years, and that at all material times until 2011 the wording of what is now
Rule
25 was either in terms that information about the proceedings should not be made public "except insofar as the chairman of the panel otherwise directs" or the
Rules
were silent (see the
Parole
Board
Rules
2004). The first iteration of the formulation which did not admit of any discretion came about in 2011.
- It follows that three sets of
Parole
Board
Rules
did not contain any equivalent to
Rule
25, and that the position changed in 2011 for
reasons
which seem to us to be wholly unclear. Mr Sheldon submitted that the "default position" in
relation
to
Rules
made under the 1991 Act was that information would not be provided, but for present purposes there is a
very
important difference between a
Rule
which is adamantine and one which permits of exceptions. Overall, we completely fail to see how an examination of the legislative history avails Mr Sheldon in any
respect.
- Furthermore, we agree with Mr Squires that the legislative history is not
relevant
to the question in issue, namely, whether s. 239(5) of the 2003 Act impliedly authorises
Rule
25. That question must be addressed on a narrow basis, focussing on the statutory language, and applying the
rigorous
approach outlined by Lord Hobhouse in the Morgan Grenfell case, at [45]. We answer this question, applying that approach, below.
- As for Mr Sheldon's second submission, the separate privacy provision,
Rule
22(3),
raises
different issues. We consider that s. 239(5) by necessary implication permits the
Parole
Board
to
regulate
its own procedure and to
require
proceedings to be held in private where necessary, in the interests of confidentiality. An issue arises, but not for our determination, as to whether proceedings should always be held in private in the light of those interests. The pressing need and proportionality arguments are stronger in this context than they are in the context of
Rule
25, but it is unnecessary for us to express a concluded
view
about them.
Returning
to the question which directly arises for our consideration, we would hold, as Lord Bingham held in Daly in the context of s. 47(1) of the Prison Act 1952 (at 540C), that s. 239(5) by necessary implication authorises the withholding of certain information
relating
to the proceedings of the
Parole
Board.
Information which is confidential would fall into that category. However, the
Rule
is of such breadth that it embraces information which is not confidential, or at the
very
least information which can be presented in such a manner that the private
rights
of individuals are left
respected.
- Accordingly, the question is whether the
Rule
goes too far, because it imposes a prohibition which is not the minimum necessary to protect such
rights.
Unlike Simms (ibid 130D-G), this is not a case where it is possible, in applying the principle of legality, to construe
Rule
25 in a manner which preserves fundamental
rights.
In line with the approach in Leech, and Daly, we have concluded that a provision which is unnecessary and/or disproportionate cannot be
regarded
as authorised by the enabling statute as a matter of necessary implication.
- In our judgment, the
Rule
clearly does go too far. There is no objective necessity for a
rule
which stifles the provision of all information
relating
to the proceedings of the
Parole
Board,
regardless
of the justified public interest in any particular set of proceedings and of the fact that not all information needs to be safeguarded. These obvious propositions are
vouched
by a brief examination of the earlier
versions
of the
Parole
Board
Rules
containing discretionary language, the position which currently obtains in Scotland, the position in
relation
to Mental Health
Review
tribunals, and the
view
of the Chairman of the
Parole
Board
that greater transparency is desirable, and by implication, achievable.
- For all these
reasons,
we would hold that
Rule
25(1) of the
Parole
Board
Rules
2016 is ultra
vires
s. 239(5) of the 2003 Act.
Conclusion
- In the circumstances which we have outlined, we uphold the challenge by
DSD
and NBV to the
rationality
of the decision of the
Parole
Board
directing the
release
of Mr
Radford
on the basis that it should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and
reliability.
That is so even in
relation
to the offences of which he was convicted, let alone any other offending.
- In the light of our decision, the
release
direction will be quashed and Mr
Radford's
case
remitted
to the
Parole
Board
for fresh determination before a differently constituted panel. It is for the
Parole
Board
to decide the procedure appropriate to the
re-determination
of Mr
Radford's
case, taking into account the terms of this judgment, including the observations we have made at paragraphs 159-161 above
regarding
the need to undertake further inquiry. We would add that consideration should also be given by the
Parole
Board
in a case of this complexity and prominence to whether a serving or
retired
judge should chair the panel. We must emphasise that we have not held, nor must we be understood as suggesting, that Mr
Radford's
present
risk
is such that his continued imprisonment is necessary for the protection of the public, or that the
Parole
Board
should so find. Subject only to the
review
jurisdiction of this Court, the assessment of all the available evidence, and all matters
relevant
to Mr
Radford's
risk,
is for the
Parole
Board
alone to make.
- We also uphold the Claimants' challenge to the
vires
of
Rule
25(1) of the
Parole
Board
Rules
2016. In the circumstances, the Claimants are, at the
very
least, entitled to declaratory
relief:
it will be for the Secretary of State (as it may be that he is minded to do) to decide how
Rule
25 should be
reformulated.
We invite written submissions from Counsel as to the form of
relief
in the light of our judgment.
- We conclude this judgment by thanking all those involved for the care and detailed consideration (under considerable pressure of time) which they have given to this case under difficult time constraints. Given that the consequence of the decision of the
Parole
Board
was that Mr
Radford
was entitled to be
released,
it was of
very
real importance to ensure that the challenge was determined as quickly as possible.