Case No: CO/3582/2003
Neutral Citation [2003] EWHC 3120 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 19 December 2003
Before :

THE HONOURABLE MR JUSTICE MAURICE KAY

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Between :

	HARRY MAURICE ROBERTS	Claimant	
	- v -		
	THE PAROLE BOARD	Defendant	
	And		
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Interested Party	

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(Transcript of the Handed Down Judgment of
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Tim Owen QC and Alison Macdonald (instructed by Bhatt Murphy Solicitors) for the Claimant
Nicholas Blake QC (instructed by Treasury Solicitor), the Specially Appointed Advocate 
Michael  Fordham (instructed by Treasury Solicitor) for the Defendant
Javan Herberg (instructed by Treasury Solicitor) for the Interested Party.

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Judgment
Mr Justice Maurice Kay: 
1.	Harry Roberts is now aged 67.  On 12 December 1966 he was convicted of and sentenced for the murder of three police officers.  He received mandatory sentences of life imprisonment.  The tariff period was subsequently fixed at thirty years.  It expired on 30 September 1996.  In June 1999 his case was considered by the Parole Board.  It did not recommend release but did recommend a transfer to open prison conditions with a further review two years later. This recommendation was accepted by the Secretary of State and in March 2000 Mr. Roberts was transferred to HMP Sudbury, an open prison.
2.	In September 2001 the procedure towards the current Parole Board review began.  The usual range of reports was disclosed to Mr. Roberts’ solicitor, Simon Creighton of Bhatt Murphy.  They included relevant reports from within the prison service and probation service.  The reports were commendatory and recommended release on life licence.  About a week later, on 2 October 2001, Mr. Roberts was served with a notice from Alistair McMurdo of the Lifer Unit.  It was to the effect that he was being removed temporarily from HMP Sudbury “in the light of investigations into your alleged involvement in drug dealing and in bringing contraband into prison”.  Since that date, Mr. Roberts has remained in closed prisons.  He has never been charged with any offence in relation to the alleged drug dealing and contraband, nor have there been disciplinary proceedings relating to such matters.  In February 2002 further allegations were made against Mr. Roberts and they were responded to by his solicitor on 11 March 2002.  However, on 22 April 2002 the Secretary of State decided that Mr. Roberts should remain in closed conditions pending the completion  of the current Parole Board review.  At the same time, it was indicated that “certain material about the Sudbury removal to be included in the dossier will not be disclosed to your client in line with prison service policy on the withholding of information”. A dossier compiled on this basis was disclosed to Mr. Creighton on 14 May 2002.  On 29 May 2002 Mr. Creighton wrote to the Parole Board protesting that material in the dossier provided by the Secretary of State to the Parole Board had not been disclosed to Mr. Roberts or his solicitors.  The undisclosed material came to be known as “the Flag C material”.  
3.	Over the next few months there were two strands to the dispute between Mr. Roberts’ advisors and the Secretary of State about non disclosure.  The first strand took place within the Parole Board where the deputy chairman was considering the matter.  Before he had reached a conclusion, the Claimant commenced an application for judicial review (the first judicial review application).  That application was resolved by a consent order dated 18 October 2002 which referred to three issues: (a) whether material to be relied on by the Secretary of State before the Parole Board should be disclosed; (b) the form of disclosure of any such material; and (c) whether some other process should be applied in relation to any such material.  It was agreed that the three issues should be decided by the Parole Board.  It was  further agreed:
“In the event that the Parole Board considers that disclosure should not be made to (Mr. Roberts’) legal representative but should be made to a special advocate acting in the interests of (Mr. Roberts) in similar manner to special advocates appearing before the Special Immigration Appeals Commission, the Secretary of State will fund the costs of the appointment of and representation by the special advocate.”
The second strand culminated in the deputy chairman of the Parole Board (Scott Baker LJ) making a decision on 15 November 2002.   The relevant parts read as follows:
“……there is no absolute principle whether disclosure should be ordered in any particular context or case and….the various interests involved must be weighed.  Both parties refer to the triangulation of interests i.e. risks to the public, the interests of the prisoner and the interest of the source or sources of information.
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.”
4.	On 9 May 2003 the Parole Board in the form of Sir Richard Tucker held a directions hearing.  Mr. Roberts was represented by Mr Creighton in the open part of the hearing and Mr. Nicholas Blake QC as Specially Appointed Advocate (SAA).  It seems that Sir Richard was then under the impression that Mr. Roberts had consented to his interests being represented by an SAA, although this was not the correct interpretation of the consent order.  So far as the issue of disclosure was concerned, Sir Richard found:
“(1)……the fears of the source or sources are genuine and held on reasonable grounds….
(2) if full disclosure of [the Flag C material] were to be made to Mr. Roberts, there would be a real risk to the safety of the source or sources; 
(3) in making directions on disclosure the Board must balance the interests of the various parties involved.  These are (a) the public….. (b) the prisoner….and (c) the source or sources of the sensitive material.”
Sir Richard directed that the Flag C material should not be disclosed to Mr. Roberts, his solicitor or any counsel instructed by him but should be disclosed only to an SAA.
5.	Mr. Creighton took issue with Sir Richard’s decision and on 30 May 2003 Sir Richard held a further hearing at which Mr. Roberts was represented by Miss Phillipa Kaufmann of counsel, instructed by Mr. Creighton, in relation to “open” matters and by Mr. Blake as SAA in relation to “closed” matters.  Sir Richard’s decision in relation to this further decision was communicated in a letter dated 13 June 2003.  The misunderstanding as to the interpretation of the consent order was resolved on the basis that, correctly construed, it meant that the SAA procedure was available in principle but that the Board was obliged to consider all other procedural options and should only adopt the SAA procedure if the triangulation of interests required it in exceptional circumstances.
6.	In the decision letter of 13 June which was addressed to Mr. Creighton, Sir Richard stated:
“……it is said that you  have acted for Mr. Roberts for a very long time and are therefore particularly familiar with his affairs and qualified to represent his interests.  The Board fully accepts this and again asserts that there is no question about the integrity of Mr. Roberts’ legal representatives.  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.
This finding, that there was objective justification for the source’s fear should disclosure be made to Mr. Roberts’ representatives, was what lay behind the Board’s direction in its decision of 14 May……
In her further submissions……Miss Kaufmann sets out two respects in which she argues that Mr. Roberts would be prejudiced by the SAA procedure being adopted:
(a) The Board has already found that there can be no disclosure of even a gist to Mr. Roberts.  Mr. Roberts cannot therefore in any sense whatever answer the case against him.
(b) It is fair to assume that the material is being placed before the Board because it has an important bearing on Mr. Roberts’ alleged dangerousness.  If the Board accepts the source’s evidence and does not direct Mr. Roberts’ release as a result, the prejudice to Mr. Roberts will not end there.  Just as the Board cannot disclose the gist to him now, it will not be in a position to do so when it comes to provide reasons for its decision.   Mr. Roberts will continue to be detained on the basis of allegations about which he remains completely ignorant.  He will not therefore be able to address the concerns underlying his continued detention or take any steps to reduce risk.
It is true that it will be the task of the SAA to represent the interests of Mr. Roberts, but he is in that respect at a serious disadvantage to yourself, who have acted for Mr. Roberts for a very long period…….
The Board accepts that there is very considerable force in Miss Kaufmann’s arguments and that if the SAA procedure is adopted this will result in prejudice to Mr. Roberts in the respects identified by Miss Kaufmann.”
In the course of her submissions Miss Kaufmann had suggested that the position is analogous to the criminal trial process in which the prosecution may have to elect whether to proceed with trial and disclose sensitive material or to offer no evidence so as to protect the source.  Sir Richard stated:
“The Board does not accept the analogy with the criminal process.  Although the Board’s  deliberations will undoubtedly affect the liberty of the subject, the Board is not conducting a criminal trial and the presumptions and procedures that attend the criminal process have no direct application.   In the end the Board cannot avoid its duty to balance the three interests – of the public, the prisoner and the source – and it must reach its own assessment of Mr. Roberts’ dangerousness, without being bound by the fact that Mr. Roberts is currently detained in a category C prison”
7.	Mr. Blake had provided an advice in writing and had also made oral submissions to the effect that the SAA procedure was unnecessary and inappropriate.  To this, Sir Richard responded:
“Although the Board generally accepts Mr. Blake’s reasoning, the Board is satisfied 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 a Specially Appointed Advocate to represent Mr. Roberts in relation to the sensitive material.  The Board is also satisfied that with the cooperation of all parties the appointment of a SAA can secure acceptable standards of fairness for Mr. Roberts.”
Accordingly, Sir Richard repeated the directions which he had made on 14 May that the Flag C material should not be disclosed to Mr. Roberts or his legal representatives but should be disclosed only to the SAA.  It is the decision contained in the letter of 13 June 2003 which is challenged in the present application for judicial review.   On 3 December 2003 I heard “open” submissions from Mr. Owen QC on behalf of Mr. Roberts, Mr. Fordham on behalf of the Parole Board, Mr. Herberg on behalf of the Secretary of State and Mr Blake as SAA.  On 4 December I sat in private and heard submissions on the “closed” material from Mr. Blake as SAA on behalf of Mr. Roberts and from Mr. Fordham and Mr. Herberg.  This judgment is concerned only with “open” matters.  I shall hand down a separate judgment in private in relation to “closed” matters.
The statutory framework
8.	The Parole Board derives its authority from section 32 of the Criminal Justice Act 1991.  Section 32(3) requires the Board to deal with cases on consideration of (a) any documents given to it by the Secretary of State and (b) any other oral or written information obtained by it.  Section 32(5) enables the Secretary of State to make rules with respect to proceedings of the Board.  Pursuant to that provision he has promulgated the Parole Board Rules 1997.  Rule 5 is in the following terms:
“(1) Within eight weeks of the case being listed, the Secretary of State shall serve on the Board and, subject to paragraph (2), the prisoner or his representative –
(a) the information specified in Part A of Schedule 1 to these Rules
(b) the Reports specified in Part B of that Schedule, 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 practicable on the prisoner’s representative if he is –
(a) a barrister or solicitor,
(b) a registered medical practitioner, or
(c) a person who the chairman of the panel directs is suitable by virtue of his experience or professional qualifications,
provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or any other person without the authority of the chairman of the panel.”
The 1997 Rules apply to discretionary life prisoners but not to mandatory life prisoners such as Mr. Roberts.  They require consideration in the present case because it is submitted on behalf of Mr. Roberts that he is a victim of discrimination when compared with discretionary life prisoners in a similar situation.  
Grounds of challenge
9.	On behalf of Mr. Roberts, Mr. Owen QC advances wide ranging submissions.  It is convenient to consider the grounds of challenge under two headings.  First, it is suggested that the application of the special advocate procedure to Mr. Roberts’ case breaches his Convention rights because it is discriminatory by reference to Article 14, coupled with Article 5(4).  Mr. Owen now puts this at the forefront of his submissions.  Secondly, he submits that, one way or another, the decision to appoint an SAA is unfair and or disproportionate by reference respectively to domestic and Convention law.  
Ground 1: Discrimination
10.	Article 5 (4) of the ECHR provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
It is common ground that the lawfulness of the continued detention of Mr. Roberts at this stage depends on whether he continues to pose an unacceptable danger to life or limb:  Stafford v. United Kingdom [2002] 35 EHRR 1121.  At present, dangerousness falls to be decided by the Parole Board as a result of the change in policy announced by the Secretary of State on 17 October 2002 following the case of R (Anderson) v. Secretary of State for Home Department [2002] 3 WLR 1800.  Mr. Owen’s discrimination point can be put in this way.  If Mr. Roberts were a discretionary life prisoner, the Flag C material would be disclosed to his solicitor and counsel pursuant to Rule 5 (2) and (3).  They would then be under an obligation not to disclose it to him pursuant to the proviso to Rule 5(3).  Rule 5 does not include the possibility of resort to an SAA.  Because he is a mandatory life prisoner, Mr. Roberts’ case is not covered by Rule 5.  To deny him the procedure contemplated by Rule 5(2) and (3) and to impose upon him the SAA procedure is discriminatory within the meaning of Article 14 of the ECHR.
11.	Article 14 is headed “Prohibition of Discrimination”.  It provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The case for Mr. Roberts is that he is a victim of discrimination in the enjoyment of his rights under Article 5(4) by reason of his status as a mandatory life prisoner.
12.	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.  Mr. Owen submits that the Parole Board would have no such power in the case of a discretionary life prisoner.  It would have to deal with the situation under Rule 5 (2) and (3).  It is in those provisions that the Secretary of State has set out what he considers to be the limit of acceptable departure from the normal requirements of procedural fairness and equality of arms.  In his skeleton argument and opening submissions Mr. Owen sought to rely on Lamothe v. Commissioner of the Police for the Metropolis (unreported, 25 October 1999).  That case arose out of a civil action against the police for damages.  A central issue in the case was whether police officers had had reasonable grounds for believing that a particular person was on certain premises at the material time.  At an interlocutory stage, a judge sitting in the county court entertained an application made on behalf of the defendant without any notice to the claimant.  Having heard the application, he ordered that: 
“at the time the officers entered 56 Pym House….they had reasonable grounds for believing that Joseph Williams was on the premises…..at the trial of this matter the claimants shall be prohibited from asking any questions of the defendants witnesses the answer to which may reveal the grounds for their believe that Joseph Williams was on the premises.”
Thus, the judge had decided the central issue in the case in what Lord Bingham of Cornhill described as “procedurally extraordinary” circumstances.  Plainly such a procedure was not permitted by the Civil Procedure Rules.  The Lord Chief Justice stated:
“What happened here……. is in my judgment something which cannot on any showing be regarded as acceptable since it violated fundamental rights of the claimants and cannot be allowed to stand.
Mr. Owen submits that, notwithstanding the different factual circumstances, Lamothe supports his submission that, in a case concerning a discretionary life prisoner, the Parole Board could not go outside Rule 5 and appoint an SAA.  He further seeks to rely on the case of S & W [2002] UKHL 10, which  was concerned with the powers of a family court to supplement the procedural provisions of the Children Act 1989.  The Court of Appeal had considered elements in the way in which care orders were made and implemented were incompatible with the rights of parents and children under Article 6 and Article 8 of the ECHR.  Accordingly it had resorted to section 3 of the Human Rights Act 1998 in an attempt to procure a compatible interpretation.  The House of Lords reversed that decision and held that the Human Rights Act reserves the amendment of primary legislation to Parliament and that any purported use of section 3 to produce a result which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment.   Lord Nicholls of Birkenhead identified the issue as being “whether the courts had the power to introduce into the working of the Children Act a range of rights and liabilities not sanctioned by Parliament.” (paragraph  35)  The House of Lords answered the question in the negative.  In a written submission, Mr. Owen now contends:
“….What the Court of Appeal could not do in S & W via section 3 of the Human Rights Act, the Parole Board cannot do in the present case by recourse to its inherent power to create whatever new procedure it considers necessary to protect the rights of the source.”
13.	In my judgment , neither Lamothe nor S &W is determinative of the powers of the Parole Board in relation to a discretionary life prisoner.   Lamothe concerned the situation in which the Court purported to deal with the central issue in the case in the absence of and without notice to the claimant.  In S & W the issue was the extent of the power of the Court under section 3 of the Human Rights Act in relation to the interpretation of primary legislation.  These situations bear little semblance to a hearing of the Parole Board to consider the release of a discretionary life prisoner.  Although the Parole Board Rules 1997 apply to such hearing, I do not consider that they are exhaustive of all procedural issues which may arise.  Indeed, this appears to be acknowledged by Rule 13(3) which provides that the parties shall be entitled to appear and be heard and take part in the proceedings “as the panel thinks proper”.  If the facts of Mr. Roberts’ case were to occur in the context of a discretionary life prisoner, I do not consider that the Parole Board would lack the power to direct the appointment of an SAA.  The concept of an SAA is of recent origin.  Following the Strasbourg decisions of Chahal v. United  (1996) 23 EHRR 413 Kingdom  and Tinnelly v. United Kingdom (1999) 27 EHRR 249 legislation was introduced providing for the appointment of special advocates in the Special Immigration Appeals Act 1997 and the Northern Ireland Act 1998.  The context of the 1997 Act is one of national security.  In Lord Justice Auld’s report on “The Review of the Criminal Courts in England and Wales” there was a recommendation for the extension of the special advocate procedure to public interest immunity hearings in criminal cases. The recommendation has not been the subject of legislation but there is an implicit approval of it by the Strasbourg Court in Edwards and Lewis v. United Kingdom (22 July 2003).  In the recent case of H & C [2003] EWCA Crim 2847 Lord Justice Rose questioned the generality of Lord Justice Auld’s extra judicial recommendation but accepted an exceptional common law power of a criminal court to appoint a special advocate in extreme cases.  I understand that the House of Lords is to consider an appeal in that case next month.
14.	In my judgment, when the Parole Board is carrying out its very important public 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 is relation to mandatory life prisoners. 
15.	In these circumstances I accept the submission of Mr. Fordham that the Article 14 discrimination claim falls at the first hurdle.  There is no differential treatment.
16.	Ground 2: fairness and proportionality
I now turn to a consideration of the decision to appoint an SAA in Mr. Roberts’ case.  It is common ground that any decision of the Parole Board in this area must satisfy the criteria of fairness and proportionality.  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 exceptional 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.  As was said by the Strasbourg Court in Edwards and Lewis, in the context of criminal proceedings:
“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.” (paragraph 53)
Whilst the present case does not concern criminal proceedings, similar competing interests arise in the form of interest of the detainee, the interest of the detainee and the public interest in having the assessment of dangerousness by the Parole Board decided on the fullest possible material.  Mr. Owen observes that, in criminal proceedings, if the point is reached where the judge directs the prosecution to disclose information that the prosecution feels unable to disclose it will decline to disclose and take the consequences of not proceeding with the prosecution.  That is the specific dilemma which arises in those circumstances.  In my judgment it does not arise in that form here.  What I have to consider is whether, in seeking to balance the competing interests to which I have referred, the Parole Board has reached a decision that satisfies the tests of fairness and proportionality in the circumstances of this case. In seeking to contend that it has not, Mr. Owen makes the following submissions.  First, he challenges the risk of “inadvertent disclosure” referred to by Sir Richard Tucker in his decision. Secondly, he seeks to draw a real distinction between the SAA procedure and the procedure under Rule 5(2) and (3), which apply to discretionary life prisoners and which, it is suggested, should be the model adopted here. Mr Owen accepts that disclosure to Mr. Roberts himself would be inappropriate.  Thirdly, he complains that, by reason of the Secretary of State having undertaken to the source that the material will only be relied upon if the SAA procedure is followed, the Secretary of State has pre-empted the decision of the Parole Board.  
17.	Mr. Fordham accepts that, in considering these submissions, the approach of the court is not tied to a Wednesbury review.  I propose to review at a level of the utmost intensity on the basis of Lord Steyn’s illustrations of a proportionality exercise as set out in R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26 at para 27:
“First, the doctrine of  proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or  reasonable decisions.  Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations.  Thirdly, even the heightened scrutiny test developed in R v. Ministry of Defence ex parte Smith [1996] QB 517–554, is not necessarily appropriate to the protection of human rights.”
With that in mind I now turn to the specific matters raised by Mr. Owen.
Inadvertent disclosure
18.	It will be recalled that Sir Richard Tucker was
“quite satisfied that disclosure of the sensitive material to Mr. Roberts’ representatives would lead to a 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 on them.”
Sir Richard accepted that there is no question about the integrity of Mr. Roberts’ legal representatives.  Mr. Creighton has vast experience of dealing with prison and Parole Board cases.  He has coped with the pressures of Rule 5(2) and (3) in cases concerning discretionary life prisoners and it is not suggested that he has ever acted with anything other than the utmost propriety.  To understand “the circumstances of the case and the unusual pressures”, it is necessary to have regard to the closed material.  I shall do that in my second judgment.  All that I propose to say here is that I am entirely satisfied that Sir Richard’s conclusion and reasoning on the subject of inadvertent disclosure satisfies a review of the utmost intensity.  
The relative merits of an SAA and the Rule 5 procedure
19.	Sir Richard accepted that the SAA procedure would result in prejudice to Mr. Roberts.  However, having considered the three interests of the public, the prisoner and the source, he concluded:
“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. Robert’s behalf, the Board is entirely satisfied that the balance of interests is firmly in favour of the appointment of an SAA to represent Mr. Roberts in relation to the sensitive material.  The Board is also satisfied that with the cooperation of all parties the appointment of an SAA can secure acceptable standards of fairness for Mr. Roberts.”
It is plain that Sir Richard took the view that, whilst this solution was not the best for Mr. Roberts, it was the best in the light of the triangulation of interests which fell for consideration.  Mr. Owen observes (as indeed Sir Richard expressly accepted) that Mr. Creighton has acted for Mr. Roberts for some ten years and has become particularly familiar with his affairs and specially qualified to represent his interests.  It is suggested that Mr Creighton may have accumulated knowledge which would assist in refuting the allegations in the Flag C material and/or he would be better placed to carry out independent investigations into that material.  Whilst I do not discount these points as worthless they have to be viewed in context.  The SAA is none other than Mr.Blake whose experience and expertise are unquestioned.  It is open to Mr. Creighton to place before Mr. Blake everything which he has on paper and which conceivably could be relevant.  That could amount to his entire file, supplemented if necessary by his most recent thoughts which could be committed to paper.  If Mr. Blake considers that investigation is necessary, he has the good offices of a solicitor from the Treasury Solicitor at his exclusive disposal.  Of course, Mr. Blake could not take instructions from Mr. Roberts but neither could Mr. Creighton at this stage if the Rule 5 procedure were being adopted.  Once again, I am satisfied that, following a review of the utmost intensity, Sir Richard committed no error in his balance of the competing interests or in his conclusion that the appointment of an SAA “can secure acceptable standards of fairness” in the circumstances of this case.  I consider such a course to be fair, proportionate and, indeed, correct.
Pre-emption
20.	This, too, has to be considered in context.  In his first decision of 9 May 2003, which was repeated in the ultimate decision letter of 13 June 2003, Sir Richard found
“the fear of the source or sources are genuine and held on reasonable grounds….if full disclosure of the contents……were made to Mr. Roberts, there would be a risk to the safety of the source or sources.”
It is implicit in his decision that he found that the same would apply in the event of disclosure to Mr. Roberts’ legal representatives alone because of the further risk of inadvertent disclosure to Mr. Roberts.  I accept the submission of Mr. Herberg on behalf of the Secretary of State that it is not right to characterise the undertaking given by the Secretary of State to the source as amounting to pre-emption or a fait accompli.  The Secretary of State is in possession of relevant but sensitive material from the source.  It is relevant to the performance of the Parole Board’s function.  The Secretary of State wishes to place it before the Parole Board and to rely upon it.  There is no sensible way in which that could be done save for the way that has been pursued.  I accept that the fears of the source are both subjectively and objectively justified.  It had been suggested to Sir Richard that the proceedings might take the conventional form but that the Secretary of State or the Parole Board might subpoena the source pursuant to CPR.34.4  or the Secretary of State might put the allegations before the panel by way of written material alone without calling the source to give direct evidence.  In either case, however, given the finding of risk of inadvertent disclosure, the risk to the source would not be avoided.  If the SAA procedure had been refused, it seems that the Secretary of State would not seek to rely on the material.  That might raise issues as to whether the Parole Board, which is in possession of the material, might nevertheless be able to rely upon it pursuant to section 32(3) of the Criminal Justice Act 1991 which requires the Board to consider 
“(a) any documents given to it by the Secretary of State; and 
(b) any other oral or written information obtained by it.”
I do not need to decide that hypothetical issue.  In my judgment, it was entirely proper for the Secretary of State to place the material before the Parole Board and to submit that, in the exceptional circumstances which exist, the appropriate course would be to adopt the SAA procedure.  In turn, given those exceptional circumstances, it was fair and proportionate for Sir Richard to accede to that suggestion.  I do not find Mr. Owen’s complaint to be sustainable.
Conclusion
21.	It follows from what I have said that the grounds of challenge advanced by Mr. Owen do not persuade me.  In stating that conclusion, I necessarily also have in mind my conclusions on the closed submissions which are provided in a separate, closed judgment.  I therefore approve the deployment of the SAA procedure in this case.  Looking further ahead, I have considered the situation which might arise if Mr Blake, as SAA, were to conclude that any adverse decision by the Parole Board were to be legally flawed.  He would be unable to inform Mr. Roberts’ legal representatives of his detailed views and they in turn  would lack the specifics necessary to mount a  challenge.  It seems to me that, if that were to eventuate (and there is no reason to suppose that it will) the appropriate course would be for Mr. Blake to seek the directions of this court as to what may or may not be done to mount such a challenge.  I shall grant a liberty to apply within these proceedings lest such circumstances should arise.  In the first instance, it would be appropriate for application to be made on notice to the Parole Board and the Secretary of State only.
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MR JUSTICE MAURICE KAY:  There are two judgments to hand down in this case, an open one and a restricted one.  I hand down the open one now.  I understand there may be some submissions in relation to the restricted one and it will be necessary to clear the court for that. 
MR FORDHAM:  My Lord, yes.  Can we deal with the open judgment first? 
MR JUSTICE MAURICE KAY:  Yes. 
MR FORDHAM:  We invite your Lordship to dismiss the claim for judicial review ‑‑ 
MR JUSTICE MAURICE KAY:  Yes. 
MR FORDHAM:  ‑‑ with costs on the usual Legal Aid terms.
MR JUSTICE MAURICE KAY:  Yes. 
MR FORDHAM:  I ought to say, because I got this wrong on the slip that I filled in, that it is Mr Matthew Purchase who is here today, on behalf of Mr Roberts.  
MR JUSTICE MAURICE KAY:  Yes.
MR FORDHAM:  I know from Mr Owen's written submissions, which your Lordship may have seen, that the claimant wishes the usual Legal Aid order in relation to assessment of his costs and, of course, that is appropriate.
MR JUSTICE MAURICE KAY:  I have not seen that. (Handed) 
MR FORDHAM:  My Lord, Mr Purchase can let you have that document; submissions following judgment.  I think, given that Mr Owen is not here, it would be appropriate for your Lordship to have a look at that.
MR JUSTICE MAURICE KAY:  Yes. 
MR FORDHAM:  So, my Lord, dealing as I was with the question of costs, we would ask you to give the Parole Board its costs in the usual terms, with the claimant having his detailed assessment for public funding purposes.  
In relation to permission to appeal, I will let my learned friend go ahead and address your Lordship on that.
MR JUSTICE MAURICE KAY:  Yes.
MR PURCHASE:  My Lord, in relation to the first ground, the discrimination point, it would be my submission that there is a reasonable prospect that the Court of Appeal would take a different view from your Lordship in relation to whether the Parole Board was entitled to use a Special Advocate in these circumstances.  As your Lordship has recognised in the judgment, that is a crucial legal point, and one which is a substantial departure from previous practice.  So, it is my submission that not only would there be a reasonable prospect of success on that, but it is a compelling reason to have a Court of Appeal decision on such an important point in the public interest.  
Secondly, my Lord, in relation to the proportionality point, it is my submission that there are two reasons why that point should go to appeal.  The first is that I respectfully submit that the judgment does not take proper account of the closeness of the analogy between the criminal context and the Parole Board context for that purpose.  
Secondly, that in assessing proportionality more weight ought to have been accorded to other potential ways of dealing with the problem; for example, witness protection schemes.  
For those reasons it is my submission that permission to appeal should be granted.
MR JUSTICE MAURICE KAY:  Thank you very much.  Mr Fordham, do you want to say anything? 
MR FORDHAM:  My Lord, we resist the permission to appeal.  We say your Lordship has reached very clear conclusions, both as to the power, in the exceptional case, to take this course, and as to the fact that this is a wholly exceptional case.  Those are our submissions.
MR JUSTICE MAURICE KAY:  Yes, thank you.  Mr Herberg, you do not wish to speak on that, do you? 
MR HERBERG:  I adopt Mr Fordham's point.
MR JUSTICE MAURICE KAY:  I shall refuse permission to appeal.  I do not think there is a real prospect of success, nor do I think there is any other compelling reason.  But if anybody wishes to pursue that they can, of course, do so with the Court of Appeal.  I see Mr Owen invites an extension of time to 28 days for applying to the Court of Appeal for permission? 
MR PURCHASE:  Yes.
MR JUSTICE MAURICE KAY:  No problem with that. 
MR PURCHASE:  Thank you.
MR JUSTICE MAURICE KAY:  So, application for judicial review dismissed, costs orders as indicated or asked for by Mr Fordham, permission to appeal refused, time extended to 28 days for applying to the Court of Appeal.
MR FORDHAM:  My Lord, we are very grateful.