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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Warner, R (On the Application Of) v Secretary of State for Justice [2020] EWHC 1894 (Admin) (15 July 2020) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2020/1894.html Cite as: [2021] 1 Cr App R 9, [2020] WLR(D) 436, [2021] 1 WLR 151, [2020] EWHC 1894 (Admin), [2021] 3 All ER 266, [2020] ACD 109 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President Court of Appeal (Criminal Division))
and
Mrs Justice Whipple
____________________
The Queen (on the application of Gary Warner) |
Claimant |
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- and - |
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Secretary of State for Justice |
Defendant |
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- and - |
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Criminal Cases Review Commission |
Interested Party |
____________________
Mr Jason Pobjoy and Mr Warren Fitt (instructed by Government Legal Department) for the Defendant
Mr Philip Rule (instructed by Criminal Cases Review Commission) for the Interested Party
Hearing date: 23 June 2020
____________________
Crown Copyright ©
Lord Justice Fulford and Mrs Justice Whipple:
The CCRC
"(1) There shall be a body corporate to be known as the Criminal Cases Review Commission.
(2) The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Commission's property shall not be regarded as property of, or held on behalf of, the Crown.
(3) The Commission shall consist of not fewer than eleven members.
(4) The members of the Commission shall be appointed by Her Majesty on the recommendation of the Prime Minister.
(5) At least one third of the members of the Commission shall be persons who are legally qualified…
(7) Schedule 1 (further provisions with respect to the Commission) shall have effect".
"1. Her Majesty shall, on the recommendation of the Prime Minister, appoint one of the members of the Commission to be the chairman of the Commission.
2. (1) Subject to the following provisions of this paragraph, a person shall hold and vacate office as a member of the Commission, or as chairman of the Commission, in accordance with the terms of his appointment.
(2) An appointment as a member of the Commission may be full-time or part-time.
(3) The appointment of a person as a member of the Commission, or as chairman of the Commission, shall be for a fixed period of not longer than five years.
(4) Subject to sub-paragraph (5), a person whose term of appointment as a member of the Commission, or as chairman of the Commission, expires shall be eligible for re-appointment.
(5) No person may hold office as a member of the Commission for a continuous period which is longer than ten years.
…
6. (1) The arrangements for the procedure of the Commission (including the quorum for meetings) shall be such as the Commission may determine.
(2) The arrangements may provide for the discharge, under the general direction of the Commission, of any function of the Commission—
(a) in the case of a function specified in sub-paragraph (3), by a committee consisting of not fewer than three members of the Commission, and
(b) in any other case, by any committee of, or by one or more of the members or employees of, the Commission.
(3) The functions referred to in sub-paragraph (2)(a) are—
(a) making a reference to a court under any of sections 9 to 12,
(b) reporting to the Court of Appeal under section 15(4),
(c) giving to the Secretary of State a statement under section 16(1)(b),
(ca) giving to the Minister in charge of the Department of Justice in Northern Ireland a statement under section 16(2A)(b), and
(d) requiring the appointment of an investigating officer under section 19".
a) s. 8(2), which states in terms that the Commission is not a servant or agent of the Crown and its property is not Crown property.
b) s. 8(4), which provides for Commissioners to be appointed by Her Majesty on the advice of the Prime Minister.
c) Para 6(1) of Sch 1, which confers on the CCRC a power to determine its own processes and procedures.
a) making a reference to a court under any of sections 9 to 12, which reference operates as an appeal to that court and has the effect of reopening that case for review by that court (this applies to cases dealt with on indictment and summarily, in England, Wales and Northern Ireland),
b) reporting to the Court of Appeal under section 15(4), which is where the Court of Appeal has directed the CCRC to investigate a matter,
c) giving to the Secretary of State a statement under section 16(1)(b), which occurs after the SoS has referred a matter to the CCRC for a recommendation whether to exercise the prerogative of mercy, and
d) giving to the Minister in charge of the Department of Justice in Northern Ireland a statement under section 16(2A)(b), which similarly occurs after the Minister has referred a matter to the CCRC for a recommendation whether to exercise the prerogative of mercy.
The Tailored Review
i) It was suggested that the CCRC should no longer review cases dealt with summarily in the Magistrates' Court. The CCRC rejected this on the basis that there were numerous examples of referrals and meritorious applications falling within this category of case. As Ms Pitcher wrote, "a miscarriage is a miscarriage, regardless of the Court in which it occurred."
ii) It was suggested that responsibility for the final decision in some cases (type 1 and type 2 cases, which are the smaller cases) should be moved away from Commissioners to Case Review Managers ("CRMs", who are civil servants, not all of whom are legally trained or qualified). The CCRC rejected this recommendation on the basis that it could cause additional work (type 2 cases) and lacked strong evidence or rationale (type 1 cases).
Absence of Bias
"[28]. … If lawful, it matters not that some might contend that it should be better organised, or differently constituted, or housed elsewhere within the public sector, nor that other improvements might be made such as by extending its powers, or in its ability to manage the presentation of evidence."
The Court's attention was on matters of legality, and not policy. We adopt the same approach in this case.
"[39]. The explanation offered by the Department for the term standing at 3 + 3 years is twofold. First, it is said that the legislative changes in the Board's work are likely to result in a greater incidence of oral hearings and thus in a different balance between lay and qualified members. The short term is said to give greater flexibility in appointment. That may be so, but the term has remained the same for years, as has invariable renewal. Secondly, it is said that the short term may help to appoint further black and minority ethnic members, in the interests of diversity. That laudable aspiration applies to all tribunals and does not stand in the way of a longer term of office, whilst the practice of invariable renewal tends to suggest that it is not the reason. No evidence has been presented showing the consideration of such factors, nor that they were raised with the Board as reasons for keeping the term short. Both explanations seem likely to owe more to ex post facto rationalisation than to evidence-based prospective consideration of them as reasons not to make a change in term which would otherwise have been made."
"… the importance of security of tenure to the independence of a member of a court is not to be under-estimated. … [T]he Parole Board, makes large numbers of decisions on, frequently, highly sensitive issues. …"
"[42]. We conclude that the period of appointment in this case is near the low borderline of what is capable of providing the necessary guarantee of independence, but would if taken alone pass the test. However, when coupled with the power to remove under paragraph (a) without any procedure for the determination of the merits, the provisions for tenure fail the test of independence …".
"[85]. … In practice the board itself made recommendations in respect of re-appointments and the minister had never been known to reject such a recommendation. Nor was there any known instance of the minister exercising his power to terminate an appointment on the ground of failure on the part of a member to perform his or her duties satisfactorily. …
…
[87]. Membership of the Parole Board involves, for almost all members, only part time employment and this will last a maximum of six years. … In the circumstances of this case we can see nothing objectionable in the fact that the tenure of members of the board is relatively short. The only relevant issue is whether the desire to be reappointed for a second term of three years might incline, or appear to incline, board members to have regard to the perceived wishes of the Secretary of State when making decisions. This danger will not arise provided that the minister continues to respect the recommendations of the board with regard to re-appointments."
"[92]. … We consider, however, that the intervention of the sponsoring minister and his department in relation to the exercise of the functions of the Parole Board has gone beyond those necessary or appropriate to the sponsoring relationship and that the sponsoring arrangements have contributed to the perception that the board is not independent."
Ground 1: insufficient security of tenure
Recasting the role of Commissioner
"These working patterns will also support simpler governance arrangements and the increased movement of work from Commissioners to staff, which are very likely to feature as recommendations in the forthcoming TR report".
This was of course to confirm the very point that Mr Foster had been concerned about, namely that MoJ was reducing Commissioner days in anticipation of changes proposed in the Tailored Review, yet to be published.
"Underlying these particular concerns is a more general worry my Board has that the relationship we have with your department is not as it should be and needs to be reset."
He invited a "positive and direct dialogue" with officials and with the Minister.
Reservation of re-appointment to the Minister
"whether the desire to be appointed for a second term of three years might incline, or appear to incline, board members to have regard to the perceived wishes of the Secretary of State when making decisions. The danger will not arise provided that the minister continues to respect the recommendations of the board with regard to re-appointments".
"Given the concerns about performance (and a lack of any more recent information about whether they have been addressed) and the fact that we are aiming to conclude the new campaign by early December in any event, we suggested that you do not agree to either a re-appointment or short extension but instead invite [X] to apply for the forthcoming campaign …
We are also aware that [X] has been amongst the cadre of Commissioners seeking to resist further changes to governance/working arrangements. We consider that refusing the re-appointment request will provide the new Chair of the Commission with the opportunity to assess X's skills and strengths afresh against the job description and criteria for the new campaign as well as against a fresh applicant field. Opening the vacancy resulting from the end of [X's] tenure will also provide an opportunity to seek to improve the diversity of the commissioners, something which the CCRC is committed to doing."
Ground 2: Misuse of the Sponsorship Role
"all members agreed that the Board was too big and unwieldy and by not implementing a smaller Board they risked harming their credibility with the MoJ".
"… I was personally committed to implementing changes irrespective of the Tailored Review recommendations".
Conclusion