England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/07/2013

The President of the Queen's Bench Division:

This is the judgment of the court.

1. The issue in this application for judicial review is the extent of the defendant (the Parole Board)'s obligation to make, maintain and make available a record of the proceedings before it.

The factual background

2. The claimant was convicted of an offence of wounding with intent to inflict grievous bodily harm on 16 March 2007. The victim was the partner of a woman whom he had been seeing. The claimant agreed to meet the victim to sort things out. They met and a fight developed. During the fight injuries were sustained. The claimant was convicted of that offence; a connected charge of common assault on the woman was not pursued. He was sentenced to an indeterminate sentence for public protection (IPP) with a minimum term of 18 months. That minimum term expired in September 2008.
3. On 19 August 2010 there was a hearing before a panel of the Parole Board to consider his release. The claimant gave evidence. The panel decided that the claimant should be moved to open conditions. The decision of the Parole Board was set out in a letter dated 25 August 2010.

i) Part of the reasoning entailed setting out the circumstances of the offence:

"A fight ensued between you and the victim during the course of which you took a metal object from a female in the crowd, and struck the victim over the head. The victim fell to the ground and you went on to kick him. You were sentenced on the basis that the implement that you used was a machete. However you deny this but admit that the implement was a metal bar. Although the dossier suggests that you told a Probation Officer that [your girlfriend] passed you the metal object, you maintained in evidence that you did not know the identity of the person who handed you the object."

ii) Another part of the letter set out the panel's view on the charge of common assault which was not pursued. It stated that the dossier suggested that he had banged the woman's head against a phone box. It recorded that in his evidence to the panel, he denied that this had happened, although he had admitted pushing her; he had claimed CCTV evidence had proved that he had not assaulted her.

4. After that hearing the claimant was moved to open conditions. He absconded. When he surrendered, he was returned to closed conditions.
5. His release was again considered by a panel of the Parole Board on 9 December 2011. On that occasion he also gave evidence in relation to what he accepted had happened when he committed the offence. In its decision letter of 1 February 2012 the panel decided he should be transferred to open conditions.

i) In the reasoning the panel again referred to the facts of the offence of wounding with intent of which he had been convicted. It recorded that the panel was referred to what the trial judge had said and what had been said in August 2010 as recorded in the earlier panel's letter of 25 August 2011. The letter then stated in respect of the evidence given at the hearing in December 2011:

"You now accept it was a bladed weapon that you had taken to the scene."

ii) The letter also referred to the charge of common assault which had not been pursued. It set out what had been recorded in the letter of 25 August 2010 in respect of the hearing earlier in the month, namely that he had pushed her. It continued:

"You told the panel that you now accept that you banged her head during a struggle in a telephone box. The panel is concerned that you repeatedly provided minimising evidence at the previous Parole Board review."

6. The claimant was content with the decision made in the letter of 1 February 2012 that he be placed in open conditions. He therefore made no challenge to the decision. However, his solicitor who had represented him at the hearing was concerned as to what had been recorded in relation to what was said by the panel to have been his change of account in relation to the offence of wounding with intent and the charge of common assault. She thought it might be used to the claimant's disadvantage at the next hearing.
7. She therefore wrote to the Parole Board on 1 March 2012 drawing attention to the record of the differing accounts. She made clear that she could not recall, having reviewed her own largely verbatim notes, that what was recorded in the letter of 1 February 2012 as his evidence in December 2011 had in fact been his evidence. She therefore requested a copy of the panel's notes.
8. The Parole Board secretariat replied on 12 April 2012. They declined to supply the notes. The secretariat stated, having taken legal advice, that:

"The notes are created by panel members in the course of them carrying out duties for the Parole Board. However, panel members take notes in relation to their "judicial" function; the Parole Board has no control over what notes panel members take or how these are recorded.

Panel members' notes of hearings do not form part of the Parole Board's official record of a case and are not filed with the Parole Board's files. The notes remain in the possession of panel members and the Parole Board does not control access to the notes."

The Secretariat stated that the letter from the claimant's solicitor would be placed on the file so that it was available at the next hearing.

9. Some correspondence followed. On 9 August 2012 the claimant's solicitor wrote to the Parole Board stating that she intended to apply for judicial review of the decision of the Parole Board not to supply the notes.
10. After some further correspondence permission was sought on 23 January 2013 to review the decision of the Parole Board:

"to fail to have a policy or practice regarding the disclosure of notes of Parole Board hearings recording evidence heard at such hearings and their refusal to disclose such notes."

11. On 28 March 2013 the Single Judge granted permission; in doing so he observed that he could not understand why the Chairman's note of the disputed issues could not be transcribed and be made available.
12. When the claimant's solicitor sought the notes, it then emerged that this request could not be complied with as the notes made by the panel had been destroyed in compliance with the guidance issued to them by the Board.

The practice of the Board and its panels

13. The Parole Board is currently established under s.239 of the Criminal Justice Act 2003; its status was described in R (Brooke) v The Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950.
14. It is sufficient for us to state that when a case is referred to the Board, a panel is established to hear the case. The Ministry of Justice through NOMS (the division of the Ministry that operates the probation and prison services) provides the Board with what is called a dossier which is then given to the panel. The dossier is provided on the understanding that it remains the property of the Ministry. The dossier contains the prisoner's records, including those of his progress through the prison system, the courses taken and views on the likelihood of re-offending. If there is a previous decision of a panel, such a decision letter will be included. That dossier is then used at the hearing. At the conclusion of the hearing, the dossier is returned to the Ministry which keeps it for at least 20 years after release.
15. The Board itself keeps files in relation to each case referred to it. The policy in relation to such files is set out in the Parole Board's "Freedom of Information Publication Scheme".

i) Files for prisoners serving a determinate sentence in respect of whom any action is taken are kept until one day after the expiry date of the prisoner's sentence and then destroyed.

ii) Files for prisoners serving indeterminate sentences (including IPP) are destroyed 9 months after the end of the review, or if there has been some action taken, 9 months after the completion of the action.

16. During the hearing notes will be made by the panel. The Board used to have panel administrators who took notes at the hearing, but there is only one such person now employed; he is only available for some single members hearings. The Guidance given by the Parole Board contained in its Oral Hearings Guide (2012) states:

"4. Order of evidence

It is important to remember that the chair has wide discretion over how the hearing is conducted. Although the following part of this guide can be taken as the norm, proceedings are nevertheless subject to directions the chair, in discussion with co-panellists, may make to the contrary. Unless one of the parties applies for the chair to direct otherwise, all participants can expect to be present during the entire hearing.

Although the panel has a judicial role, it will try to keep the proceedings informal. It is likely that the proceedings will be more formal if there is strongly contested evidence (for example regarding the circumstances of a recall). However, witnesses are not required to give evidence on oath. The proceedings are not recorded verbatim and participants who require a full record should take notes. It is considered part of the panel chairs job to take as good a note as possible." (emphasis added)

17. The notes taken by the chair and the panel members are kept by them for the reasons given by the Parole Board set out at paragraph 8. They are not attached to the dossier or given to the Parole Board. The Board, having taken advice, decided upon a policy of destruction of the notes after 9 months. The policy is set out in the Parole Board Handbook, which states under the heading Members' responsibilities:

"(i) To keep notebooks for nine months following the date of the panel for potential legal challenges)

(ii) At the end of nine months, these notes should be shredded or burnt

….

Personal notes held by members in handwritten from in notebooks and retained by them do not constitute personal data as defined in the [Data Protection Act] and will not be subject to it or the Freedom of Information Act. Nevertheless personal notes held by members may still be subject to disclosure upon grant of leave to apply for judicial review. This was so held in the case of Regina v The Parole Board ex parte Gittens, Jan 1994, QBD."

The duty to make a note by way of record

18. As is clear from the Guidance set out, the Board's view is that it is part of the duty of the chair to take as good a note of the evidence as is possible. At the hearing it was not disputed that the chair is under such a duty.
19. The obligation to take a note was made clear as long ago as 1994 by this court in R v Parole Board ex p Gittens (Times 3, February 1994, transcript 26 January 1994). One of the issues turned on what the applicant had said. In his concluding observations Ralph Gibson LJ said, after making clear that the prisoner's representative should keep a note:

"It is, however, in my judgment necessary for a sufficient note to be made of the proceedings by or at the direction of the panel. Such is the obligation of a county court judge in ordinary proceedings in those courts. The note should be produced by the Board upon the grant of leave to apply for judicial review with reference to a decision"

20. In our view it is the responsibility of the Board to ensure that a proper record is made of each hearing and in particular the evidence given at it. As there is no audio or visual recording of the proceedings (and there is no reason for them to be recorded), then the full note which the chair makes of the evidence and the proceedings is the record of the proceedings. The panel is making a decision which may determine whether a person continues to be deprived of his liberty, whether he is set free, or the conditions under which he may be detained; we were referred to numerous authorities which set that out. A proper record of what happened is obviously essential, as the Parole Board recognises. For example, a record of the proceedings and evidence before the panel may be essential if proceedings for judicial review are brought. But it can also be essential if the evidence given is relied on at a further hearing.
21. Thus in our judgment the notes of the chair which constitute the record of the proceedings are made by the chair to discharge the Board's duty to keep a record. The Board was incorrect in stating it had no control over them. As there is no other official record of the evidence and the proceedings, the notes by way of record are the Board's record of the proceedings before the panel determining the liberty of an individual.
22. It may be that the Board has failed to distinguish between the notes of the chair which constitute the record of the proceedings and the notes made by the chair or other panel member during the hearing as part of their preparation for reaching a reasoned decision. As Ralph Gibson LJ pointed out, the chair makes a note of the evidence and the proceedings. That part of the note constitutes the record of the proceedings in the way in which the note of the county court judge constituted the record of the evidence and proceedings in the long history of the county courts before those courts were supplied with audio recording equipment: see also Greene v Half Moon Bay Hotel [2009] UKPC 23 at paragraphs 9-10. Similarly in the Tribunals where there is no audio recording, the note of the Chairman constitutes the record: see the decision of Judge Hickinbottom, Chief Commissioner, (as he then was) in R(DLA) 3/08.
23. The notes constituting the record are quite distinct from notes taken by the chair for his or her own use or notes made by a judge or chair where there is an audio or visual recording of the proceedings. Such notes do not constitute the record. Nor do they constitute personal data. They are made by the judge or chair or panel member solely for the purpose of assisting in and in preparation for the reaching of the reasoned decision; they are not a record of the proceedings. Their absolute confidentiality is integral to the independent and impartial decision making function of a judge or tribunal or panel member and the proper administration of justice. They are in effect notes made for the preparation of the judgment. They are no different to a preliminary draft of a judgment. If such notes are held by an administrative officer or on a computer system operated by an administrative body for the judge, tribunal or panel member, they are held on behalf of the judge, tribunal or panel member and remain under the sole control of the judge, tribunal or panel member. No person has a right of access to them. They must never be disclosed or provided to any person.
24. For that reason it was accepted that if the notes of the chair contained observations which were made by the chair for the purpose of reaching a decision or setting out the reasons, then that part of the notes do not constitute part of the record and can never be made available.

The policy of destruction of the note by way of record.

25. We were told that the Parole Board decided on the policy of requiring the chair and members of the panel to destroy after 9 months all the notes, including those constituting the record of the proceedings, as there was an obligation under Data Protection legislation not to keep personal data longer than was necessary. The view was taken, possibly from a narrow reading of the observations of Ralph Gibson LJ, that the notes would no longer be relevant if no application was made for judicial review. If they were no longer relevant for that purpose, then there would be no justification for keeping them. We were also told that the Parole Board had very limited office space and no storage facilities. There is therefore a risk of losing or misplacing them.
26. It seems to us that this view was mistaken. As is clear from what happened in the present case a dispute arose as to what was said by the claimant. A change of account in relation to what a prisoner accepts as to the circumstances of the offence of which he was convicted can be material to the assessment of the risk of further offending. Such a dispute can only be resolved by the chair looking at the record constituted by his note in the light of the material provided by the person who contends that there is a mistake. As in the present case the dispute arose shortly after the decision letter. Until it was resolved, the note as a record of the proceedings was essential.
27. However, there is a more important reason why the policy is mistaken. The chair's note is the record of a body that decides on the liberty of the subject; there is an important public interest in the keeping of such records. The reason as explained to us for the current policy is difficult, if not impossible, to understand. If the dossier used by the panel at the hearing is kept for at least 20 years, it is difficult at first sight to see the justification for treating the record of what happened in any different way. Quite apart from these considerations of public interest, the circumstances in the present case are one illustration of why the record may be important for the fair conduct of further proceedings. There may well be other circumstances.
28. We make no further observations. The Parole Board had begun a review of its retention and disposal policy prior to the hearing of this matter. It must be for the Parole Board to determine in the course of that review how it keeps the record of the proceedings constituted by the chair's note of the evidence and the proceedings and for what length of time that record is kept.

Declining to make the note by way of record available

29. It happens from time to time, though infrequently, that in a tribunal where there is no visual or audio recording of the proceedings there may be a dispute as to what a witness has said. That is often resolved by the judge or chair looking at his or her own notes in the light of the notes made by others at the hearing and reaching agreement. In the present case the solicitor for the claimant sought no more than the resolution of such a dispute.
30. It is, perhaps, most unfortunate that the dispute was not resolved by the chair looking at his or her own note in the light of the observations of the claimant's solicitor and her note. In the event that the notes could not be reconciled by the chair, or the chair considering his or her own notes to be accurate, the notes of the chair as the record would prevail and be made available, if necessary, as the record for use in the further proceedings. The claimant's solicitor was entitled to have the point on the accuracy of the summary in the decision letter considered and it should have been resolved in this way. It would have taken little time and avoided these proceedings.
31. The relief the claimant seeks is first a review of the decision of the Parole Board that its policy or practice of not maintaining and disclosing records of evidence is unlawful and second the disclosure of the notes.
32. In this particular case, the claimant is not challenging the decision of the panel. The notes are no longer available. There was some argument in the written submissions as to what relief, if any, could be obtained in such circumstances. For example, it was contended by the Parole Board that the note by way of record had to be made available only when judicial review proceedings were brought and its duty to do so was part of its duty of candour in such proceedings. We cannot accept that argument. Given the powers of the Parole Board in relation to the liberty of the subject, there are, as this case illustrates, other circumstances where fairness makes it necessary for the chair to re-examine the notes by way of record to ensure that they accurately reflect what was said in evidence, where that evidence may be used in further proceedings and thereafter for the chair, if necessary, to make them available.
33. It seems to us that it would not be appropriate to make a specific order in this case or to extend the length of this judgment by a discussion of further issues in the light of the acceptance by the Parole Board that a note by way of record must be kept and of our decision that its policy of destruction after 9 months cannot be lawful. The circumstances in which the note by way of record should be examined and if necessary made available are various; it must be for the Board to consider what, if any, policy should be devised or guidance given.
34. It would plainly be a wholly disproportionate burden for the notes by way of record to be transcribed and/or made available after each hearing. The circumstances in which it will be necessary to examine the notes by way of record and thereafter to make them available will be very infrequent. We would hope those circumstances would be obvious – the most common is likely to be a dispute over what was said in evidence either for the purposes of a judicial review or for use of the evidence in a further hearing before another panel of the Parole Board. When such a dispute arises, we would hope it will always be resolved in the pragmatic manner we have suggested at paragraph 30 without the need for the Parole Board to formulate policies or lay down guidance.