COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH
MR. JUSTICE MAURICE KAY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
MR JUSTICE JACKSON
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Michael FORDHAM (instructed by Roland Phillips - Treasury Solicitors) for the Respondent
James EADIE (instructed by Treasury Solicitors) for the Interested Party
Crown Copyright ©
Lord Justice Tuckey:
Having considered the sensitive material, in my view the way ahead is as follows. It should in the first instance be disclosed to a special advocate agreeable to both parties. This would be on the basis that it would not be disclosed to Roberts, his lawyers, or anyone else without the consent of the Parole Board. The special advocate procedure is I think a statutory one in other fields (SIAC) but I can see no reason why it should not be used in the present circumstances and it does not prejudice Roberts provided other options remain open to argument thereafter.
I think a hearing then should take place before the legal chairman of the panel that is to hear Roberts' case There can then be argument both as to the law and as to disclosure, including any issues such as whether some of the sensitive material might be disclosed and what, if any, broad information Roberts might be given about the nature of the withheld material.
(i) with regard to the sensitive material the fears of the source or sources are genuine and held on reasonable grounds ;
(ii) if full disclosure were to be made to Mr Roberts there would be a real risk to the safety of the source or sources;
(iii) in making directions on disclosure the Board must balance the interest of the various parties involved. These are :
(a) the public the Board's ultimate purpose is to protect the public. Moreover, it is important that all judicial decisions are made on the basis of the broadest information available;
(b) the prisoner the prisoner has the right to proper representation and examination of the evidence. This is not however an absolute right. The Parole Board Rules, whilst not specifically applicable to mandatory lifers acknowledge that the public interest may restrict the prisoner's right in this respect ;
(c) the source or sources of the sensitive material these parties have the right under Articles 2 and 3 of the ECHR and under common law, to protection.
The Board is however quite satisfied that disclosure of the sensitive material to Mr Roberts' representatives would lead to real risk of inadvertent disclosure to Mr Roberts by his representatives, having regard to the circumstances of the case and the unusual pressures that would be placed upon them.
Sir Richard confirmed his earlier directions about disclosure and that the decision on the claimant's eligibility for release on life licence would be made following a full hearing at which first the disclosed evidence would be examined before the SAA, the claimant and his representatives and then the sensitive material in the absence of the claimant and his representatives.
Although the Board generally accepts Mr Blake's reasoning, the Board is satisfied that the SAA procedure does have a place outside the immediate context of terrorism and intelligence gathering (it may be that Mr Blake himself accepts that) and that it may have a part to play in cases like the present where the public interest, balanced against the other interests, may require it.
Despite the possibility of prejudice to Mr Roberts in making representations to the Board and having taken carefully into account all the points made on Mr Roberts' behalf, the Board is entirely satisfied that the balance of interest is firmly in favour of the appointment of the SAA to represent Mr Roberts in relation to the sensitive material. The Board is also satisfied that with the co-operation of all parties the appointment of an SAA can secure acceptable standards of fairness for Mr Roberts.
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.
5 (1) the Secretary of State shall serve on the Board and, subject to paragraph 2, the prisoner or his representative
[specified information and reports relating to the prisoner] and
(c) such further information that the Secretary of State considers to be relevant to the case.
(2) Any part of the information or reports referred to in paragraph (1) which in the opinion of the Secretary of State should be withheld from the prisoner on the ground that its disclosure would adversely affect the health or welfare of the prisoner or others shall be recorded in a separate document and served only on the Board together with the reasons for believing that its disclosure would have that effect.
(3) Where a document is withheld from the prisoner in accordance with paragraph (2) it shall nevertheless be served as soon as is practicable on the prisoner's representative if he is -
(a) a barrister or solicitor,
(b) a registered medical practitioner, or
(c) a person whom the chairman of the panel directs is suitable by virtue of his experience or professional qualification;
provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or to any other person without the authority of the chairman of the panel.
13(3) The parties shall be entitled to appear and be heard at the hearing and take such part in the proceedings as the panel thinks proper; and the parties may hear each others evidence, put questions to each other, call any witnesses who the Board has authorised to give evidence ., and put questions to any witness or other person appearing before the panel.
(5) The panel may receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law
(6) The chairman of the panel may require the prisoner or any witness appearing for the prisoner to leave the hearing where evidence is being examined which the chairman of the panel previously directed should be withheld from the prisoner as being injurious to the health or welfare of the prisoner or another person.
A crucial legal point lies at the heart of this ground of challenge. It is whether, as a matter of law, the Parole Board would have been able to take the same course and appoint an SAA in the case of a discretionary life prisoner in the same circumstances.
He decided it could. The 1997 Rules were not exhaustive of all procedural issues which might arise as Rule 13 (3) appeared to acknowledge. The concept of an SAA was of recent origin, had been introduced into other legislation and appeared to have the approval of the Strasbourg Court. He concluded:
In my judgment when the Parole Board is carrying out its very important function in relation to a discretionary life prisoner, it is entitled in exceptional circumstances, to resort to the SAA procedure. It has the inherent power to adopt a novel concept in the interests of justice and in the public interest. It is crucial that SAAs should remain wholly exceptional and not become the norm. On the other hand, where their availability enables justice to be done on the basis of all relevant material when the alternative is a decision on incomplete relevant material, I consider that the Parole Board has the power to resort to the procedure to the same extent in relation to discretionary life prisoners as it has in relation to mandatory life prisoners.
The discrimination argument therefore fell at the first hurdle. There was no differential treatment.
There is another important piece of common ground. It is that the Parole Board has inherent powers to control its own proceedings in relation to mandatory life prisoners and that, in exceptional circumstances, these may permit the appointment of an SAA. However, Mr Owen's first submission in relation to that proposition is that exceptional circumstances should be limited to matters of national security. I do not agree. Whilst I accept that the exception must remain exceptional and not become the norm, I am not persuaded that the constraints which may justify the appointment of a SAA in the context of national security cannot be matched by comparable constraints in other contexts.
There is a discretion in the Board which is underlined in the terms of section 32 (3) to adopt whatever procedure is, in any individual case, the fair procedure.
45. Our judge made public law recognises that the impact of recall is grave It accordingly calls for a high standard of fair procedure. What it does not do is react schematically to the need by insisting on the translation of the criminal trial process into the different context of a Parole Board hearing.
In exercising its practical judgment the Board is balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury 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.
Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer/client relationship, is acting in a way hitherto unknown to the legal profession. Whilst not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay expense and of continuing review None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it but the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant.
(1). Fairness and its ingredients need to be judged in context.
(2). The formulation of hard-edged principles is eschewed.
(3). The constituent rights of fairness are not absolute. Qualifications to them are justified provided they are necessary and proportionate.
(4). The extent to which qualification or flexibility is permitted depends upon the context. A greater degree of latitude is permitted in cases concerning civil rights than in criminal cases. In deciding what is necessary it is legitimate to have regard to the interest of others, including the public if they are affected.
(5). The interaction of these interests is a matter of degree to be judged on a case by case basis.
There may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.
Lord Justice Clarke: I agree.
Mr Justice Jackson: I also agree.
ORDER: Appeal dismissed. The appellant to pay the Board's costs on the usual CLS funding terms. Application for permission to appeal to the House of Lords refused.