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R (DSD, NBV & Ors) v The Parole Board & Ors [2018] EWHC 4949 (Admin)

Case date: 28/03/2018

Court: High Court

Area/s of law: Judicial Review , Other

Background

The High Court (Sir Brian Leveson P, Jay J and Garnham J) has handed down judgment in the judicial review of the Parole Board’s decision to release John Worboys (now Radford). That decision has been quashed on the basis that the Board acted irrationally in failing to carry out, or instigate, further inquiry into wider offending by Mr Worboys when determining the issue of risk (at [155] – [164]). 

This note considers a secondary issue arising in the judicial review proceedings, which is of interest to media lawyers: the challenge to the legality of Rule 25 of the Parole Board Rules 2016. That Rule prohibits the making public of information about proceedings before the Board, or the names of persons concerned in those proceedings. 

It was argued by the claimants (including News Group Newspapers) that this provision was unlawful, on the basis that it infringed the open justice principle by depriving the public and those affected by the Parole Board’s decisions, of information about it reasons. That challenge was upheld. 

Decision

The Court’s substantive reasons for upholding the challenge are at paragraphs [169] – [200] of the judgment. In short, the Court found that fundamental rights of open justice and access to the court were engaged by the restriction on information imposed by Rule 25, and that a blanket prohibition on disclosure was an unnecessary and disproportionate interference with those fundamental rights. The Rule therefore contravened the principle of legality, and was ultra vires.  

The rights in play: (1) Open Justice and the Parole Board

The Parole Board’s argument was twofold: first, that it was not a court (such that the open justice principle did not apply to it), and, alternatively, that its proceedings should be regarded as an exception to the open justice principle on the basis that, historically, those proceedings have been held in private. 

That latter argument rested on the analysis of familiar statements regarding the exceptions to the open justice principle in Scott v Scott [1913] AC 417 by Lord Bridge in Pickering v Liverpool Daily Post and Echo [1991] 2 AC 37. In particular, the Board relied on the existence of exceptions to the general principle of open justice to protect the privacy of those concerned in wardship cases. 

Both submissions were rejected by the Divisional Court. Whether a body is a court depends on whether it exercises the judicial power of the state and adjudications upon matters of individual liberty – such as those now made by the Board – are “paradigm examples of the exercise of a judicial function” [172]. 

In the view of the Court, information from Parole Board hearings could readily be provided in a manner which protects the Article 8 rights of prisoners. Such rights did not in themselves justify a carve out from the principle which “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” [175]. 

As a result, the principle of open justice – “or more particularly the right of the public to receive information which follows from the operation of the principle” – applied [177]. 

(2) Access to the court for the purposes of challenging the Board’s decision

In addition to the fundamental principle of open justice, the Court held that it was an “inseparable part or corollary of the victims’ right of access to the court [to challenge by way of judicial review the decision to release] entitles them to be given some information about the substance of the release decision”. 

Legality

The Parole Board Rules are those made by the Secretary of State for Justice pursuant to the power under s.239(5) of the Criminal Justice Act 2003 to “make rules with respect to the proceedings of the Board”. 

The question for the Court was whether that provision gave implied authorisation for the interference with the fundamental rights identified and, if so, whether the infringement was justified by a pressing social need and by being the minimum necessary to achieve the objectives sought [190]. 

In the Court’s view, the provision did, by necessary implication, permit the Board to regulate its own procedure, including by requiring proceedings to be held in private where necessary to protect confidentiality [196]. However, Rule 25 – being a blanket prohibition – went much further than necessary. That blanket rule was “unnecessary and/or disproportionate” and could not be regarded as authorised by the enabling statute. It was therefore ultra vires [200]. 

Comment

Given the particular controversies of this case it is perhaps unsurprising that discussion of the open justice principle takes something of a backseat in the judgment: in reality, this is a relatively straightforward application of that principle, made simple for the Court by the operation of a blanket rule on disclosure. As is noted in the judgment, that blanket rule was only introduced in 2011, and previous manifestations of the Parole Board Rules permitted disclosure at the direction of the Chair. 

Nevertheless, the decision provides helpful (if unsurprising) clarification of the status of the Parole Board vis the open justice principle. 

As a result of that decision, the reformulation of Rule 25 is now in the hands of the Secretary of State for Justice, who has indicated an intention to abolish the rule “as soon as possible after the Easter recess”. In a statement released in response to the judgment, the Secretary of State indicated that the intention of the abolition of the rule was to “provide for the Parole Board to make available summaries of the decisions they make to victims”. If that is the limits of what is intended, it might be thought somewhat limited given the role of the open justice principle in the Court’s decision. It will be interesting to see what provision is made to ensure that the public’s right to receive information, as recognised in that judgment, is protected. 

The judgment is available here.

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