Roberts (FC) (Appellant) v Parole Board (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Roberts (FC) (Appellant)
Parole Board (Respondents)
THURSDAY 7 JULY 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Tim Owen QC
(instructed by Bhatt Murphy)
(instructed by Treasury Solicitor)
The Secretary of State for the Home Department
(Instructed by Treasury Solicitor)
Keir Starmar QC
(Instructed by Justice)
Hearing dates: 20 and 21 April 2005
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Roberts (FC) (Appellant) v. Parole Board (Respondents)
 UKHL 45
LORD BINGHAM OF CORNHILL
What is at stake in this instance is, on the one hand, the safety and security, perhaps the life, of a witness, and, on the other, the real possibility that the appellant may remain in prison until he dies. In this case, as in R v H, above, para 33,
On appeal to the House in the same case ( AC 201, Lord Devlin referred at p 237 to "the fundamental principle of justice that the judge should not look at material that the parties before him have not seen", and at p 238, referring to "the ordinary principles of a judicial inquiry", he continued:
Lord Mustill, with the agreement of all other members of the House, spoke in similar vein in Re D (Minors) (Adoption Reports: Confidentiality)  AC 593, 603-604, when he described it as
Later in the same opinion, at p 615, he said:
This principle has been upheld in such domestic cases as R v Parole Board, Ex p Wilson  QB 740, 751, per Taylor LJ (disclosure of reports to the Board), whose reasoning was adopted by the House in Doody, above, p 562, and R v Secretary of State for the Home Department, Ex p Hickey (No 2)  1 WLR 734, 746 (disclosure of evidence elicited by the Secretary of State following a conviction), where Simon Brown LJ said:
In dismissing a challenge to special measures directions for the protection of juvenile witnesses in R (D) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393, the House attached importance to the fact that the defendant was able to challenge and cross-examine the witnesses and that the evidence was produced at trial in the presence of the accused, who could see and hear it all: see para 49 of the opinion of Baroness Hale of Richmond, with which all members of the House agreed.
Section 32 of and Schedule 5 to the 1991 Act were repealed and replaced by section 239 of and Schedule 19 to the Criminal Justice Act 2003, but it was not suggested in argument that this change had any bearing on the issue to be decided by the House.
A right to be represented (subject to certain exclusions) was provided in rule 6, and a right for the prisoner to call witnesses and adduce evidence, subject to certain procedural conditions, by rules 7 and 8. The chairman of the panel had power to give directions (rule 9), among them a direction (rule 9(1)(d)):
There was to be an oral hearing of the prisoner's case unless otherwise agreed (rule 10) and the hearing was to be at the prison or other institution where the prisoner was detained (rule 12(1). It was provided in rule 13(2) that:
This paragraph was subject to paragraph (3) which provided:
Rule 15(2) provided:
Rule 8, which in part reproduces rule 9 of the earlier rules in relation to the giving of directions, provides in (2)(d) that a direction:
The prisoner must give notice whether he wishes to attend the hearing (rule 14(3)). Rule 15 entitles him to call witnesses if he obtains leave to do so. Rule 18(1) provides that:
Rule 19(2) and (3) reproduce rules 13(2) and (3) of the earlier rules. Rule 19(6) is new and provides:
Rule 20, relating to the panel's decision provides:
Section 111 of the Local Government Act 1972 empowers local authorities to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions. Paragraph 1(2) of Schedule 5 to the 1991 Act, as already noted, empowers the Board to do such things and enter into such transactions as are incidental or conducive to the discharge of its statutory functions.
Lord Steyn spoke to similar effect: pp 587-590. In R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, 131, Lord Hoffmann expressed the point very clearly:
For reasons given above, the course proposed and so far adopted in the conduct of the appellant's parole review involves a substantial departure from the standards of procedural fairness which would ordinarily be observed in conducting a review of this kind. It would in my opinion violate the principle of legality, strongly relied on in argument by Mr Owen, and undermine the rule of law itself, if such a departure were to be justified as incidental or conducive to the discharge of the Board's functions.
Such rules were to be made by statutory instrument (section 5(8)) of which a draft was to be laid before and approved by resolution of each House. Seeking the House of Lords' approval of the first rules made under the Act, the Lord Chancellor acknowledged that the Commission's procedures departed from what would ordinarily be required to satisfy natural justice: House of Lords Hansard, 29 July 1998, Col 1587. Section 6 of the Act provided for the appointment of special advocates (not so described), who would not be responsible to the person whose interests they were appointed to represent. The Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034), now in force, lay down detailed provisions governing the withholding of material from the applicant and his legal representative (e.g. rules 10(3), 16(3), 37), the appointment and role of special advocates (rules 34-36), the holding of hearings in the absence of the appellant and his legal representative (rule 43), qualification of the appellant's right to cross-examine opposing witnesses (rule 44(5)) and a qualification of the Commission's duty to give reasons for its decision (rule 47). Thus whatever the merits of these procedures (which have caused concern to the House of Commons Constitutional Affairs Committee and a number of special advocates, as evidenced by the report referred to in para 18 above, but on which the House is not required to rule in this appeal), it seems clear that they have been authorised by primary legislation and by rules approved in Parliament. Reliance has not been placed on implication to warrant so significant a departure from ordinary standards of procedural fairness.
(1) The Northern Ireland (Sentences) Act 1998 provided for prisoners serving sentences for scheduled offences to apply to Sentence Review Commissioners for early release if they were able to meet certain statutory conditions. By Schedule 2 to the Act the Secretary of State was empowered to make rules which might, among other things, provide for the withholding of evidence about a prisoner, the holding of hearings in the absence of the prisoner and his legal representative and the appointment of a person to represent the prisoner when he and his representative were excluded. Schedule 2 came into force on 28 July 1998 and on 30 July the Secretary of State, acting under the authority of Schedule 2, made the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998 (SI 1998/1859), which contained more detailed provisions to the same effect. Information could be withheld from the prisoner and his representative as a safeguard against dangers which included not only threats to national security but also adverse effects on the health, welfare or safety of any person.
(2) Section 85(1) of the Northern Ireland Act 1998 empowered Her Majesty by Order in Council to make provision dealing with a number of reserved matters listed in Schedule 3, one of which (para 9(e)) was the treatment of offenders. It was a broad power, extending (section 85(1)(c)) to the amending or repealing of any provision made by or under any Act of Parliament or Northern Ireland legislation. But (section 85(3)) no recommendation might be made to Her Majesty to make an Order in Council under the section unless a draft of the Order had been laid before and approved by resolution of each House of Parliament. In exercise of this power, by the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) Her Majesty in Council made provision for the appointment of Life Sentence Review Commissioners to deal with tariff and release decisions. Schedule 2 to the Order empowered the Secretary of State to make procedural rules, subject to annulment by resolution of either House. Such rules might provide for the withholding of evidence from a prisoner (para 3(e)), the conduct of proceedings in the absence of the prisoner and his legal representative (para 6(1)) and the appointment of a person to represent the interests of the prisoner when he and his representative were excluded (para 6(2)). Pursuant to Schedule 2, the Secretary of State made the Life Sentence Review Commissioners' Rules 2001 (SR 2001/317), which provided in rule 10(8) for conducting parts of the hearing in the absence of the prisoner and his legal representative, in rule 15(2) for the withholding from the prisoner and his legal representative of any information certified by the Secretary of State to be confidential, as defined, and in rule 16(2) for the appointment of a special advocate to represent the interests of the prisoner.
(3) The Northern Ireland (Remission of Sentences) Act 1995 came into force on 17 November 1995 (SI 1995/2945) and was significantly amended by the Terrorism Act 2000. Section 1(3) of the 1995 Act empowered the Secretary of State to revoke the licence of a person released from prison in specified circumstances
"if it appears to him that the person's continued liberty would present a risk to the safety of others or that he is likely to commit further offences; and a person whose licence is revoked shall be detained in pursuance of his sentence and, if at large, be deemed to be unlawfully at large."
A person whose licence was revoked was entitled under section 1(4) to make representations in writing to the Secretary of State about the revocation and to be informed as soon as practicable of the reasons for the revocation and of his right to make representations. There was no provision in the statute enabling the person whose licence had been revoked to seek a review of the lawfulness of his detention by any independent court or tribunal, and section 1(3) and (4) was plainly incompatible with article 5(4) of the Convention: see for example Waite v United Kingdom (2002) 36 EHRR 1001. This decision was made on 10 December 2002. On 13 January 2003 the Secretary of State issued a "Written Statement" in which he stated:
Annexed to this document was a note listing the additional safeguards the Secretary of State would apply. This provided that the Commissioner would decide the procedure for dealing with any representations, subject to paragraphs 5 and 6 which read:
These paragraphs were supplemented by paragraphs 7-9:
(4) Section 24(1)(c) of the Northern Ireland Act 1998 provided that a minister or department of the Northern Ireland government should have no power to do anything which discriminated against a person or class of person on the ground of religious belief or political opinion. Section 76 of the Act, applying to public authorities, was to similar effect, although expressly conferring a right of action. Where a person claimed to be a victim of discrimination in contravention of section 24 or 76, it was open to the person against whom the claim was made to propose to rely (section 90(1)(b) of the Act) on a certificate purporting to be signed by or on behalf of the Secretary of State certifying
"(i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and
(ii) that the doing of the act was justified by that purpose."
A claimant might appeal against the certificate to a Tribunal established under section 91, in accordance with rules made by the Lord Chancellor (section 90(2)), which might uphold or quash the certificate (section 90(3)). Section 91(1) established the Tribunal and section 91(2)-(6) governed the Lord Chancellor's rule-making power. It was specifically enacted that rules might provide for the withholding of information from the claimant, for the conduct of proceedings in the absence of the claimant and his legal representative and for regulating the functions of persons who might be appointed to represent the interests of the claimant when he and his legal representative were excluded (subsections 4(a), 4(b) and 4(c)). Power to appoint such persons was conferred on the Attorney General for Northern Ireland by subsection (7). In exercise of his rule-making power, the Lord Chancellor made the Northern Ireland Act Tribunal (Procedure) Rules 1999 (SI 1999/2131), which were laid before and approved by resolution of each House as required by section 96(6) of the 1998 Act. These rules made provision for the appointment of special advocates (rule 9), the withholding of information from the claimant (rules 10 and 11), the exclusion of the claimant and his legal representative from the hearing (rule 18) and the issue of incomplete reasons (rule 22).
The Board's Statutory Framework
Specially Appointed Advocates
The Appellant's Core Submissions
As a submission of law, this is correct. The issue here is whether there is an express or implied authorisation. In my view, there is an express authorisation to withhold information contained in the current Rules but if this is wrong, the authorisation is to be implied from the duty of the Board to conduct hearings which will enable it to reconcile the triangulation of interests to which I have referred. In the case of the appointment of a SAA, authorisation is implied from the undoubted implicit duty of the Board under section 28 of the 1997 Act to conduct its decision-making process in a manner which so far as is practical and appropriate in the circumstances ensures that the prisoner is fairly treated. The appointment of the SAA should only be made in the circumstances I have already identified. If this approach is adhered to and the possible appointment of a SAA is not used as an excuse to lower the standards of fairness, the presence of the SAA can only mitigate the disadvantage to which the prisoner would otherwise be subject. In these circumstances, I cannot see any objection to a SAA being appointed. The legislation and Rules should not be interpreted as preventing the use of a SAA. This is despite the decision of the Administrative Court in R (S) v Waltham Forest Youth Court  EWHC 715 (Admin);  2 Cr App R 335. In R (D) v Camberwell Green Youth Court  1 WLR 393, Baroness Hale of Richmond expressed reservations about that decision with which I would respectfully agree. Courts should be slow to restrict the implied power of an administrative body to enhance the fairness available to a person who otherwise would be adversely affected by the lack of that power.
Again, I have no quarrel with the legal accuracy of this submission. But the submission does not advance the appellant's case. Bodies such as the Board have an implied power under domestic administrative law to control their own procedure so as to deal with a person in the position of the appellant as fairly as the circumstances permit. The use of a SAA, in an exceptional case, can assist the achievement of this. The SAA was able to advance his contentions in favour of the appellant before the Administrative Court and Maurice Kay J was able to evaluate the appellant's arguments taking into account the "closed facts" and give a "closed judgment" on those facts to which we have not been invited to refer. The result may have been adverse to the appellant, but the fact that this action could be taken confirms that the process is of value. In another case the result could be different and the prisoner could establish that evidence is unjustifiably being withheld from him.
On what I regard as being the proper approach, this submission fails to advance the appellant's case because the appointment of a SAA is not detrimental to any legal right of the prisoner. This is because, as I have already explained above, the appointment of a SAA should not be used as a justification for reducing the rights that the prisoner would otherwise have but only as a way of mitigating the disadvantage he would otherwise suffer if his rights were going to be reduced with or without a SAA. The submission refers to a special advocate "procedure" but I here refer, as does the issue, to the appointment of a SAA. A SAA can be used in a variety of situations. It can only enhance the rights of a life sentence prisoner. Any complaint of the appellant should not be directed at the SAA but at the non-disclosure to the prisoner. If there is no right not to make disclosure to the prisoner or his legal representative, then the SAA procedure cannot correct the failure to make disclosure. It is only if there can be non-disclosure in the appropriate circumstances that the special advocate can have any role. That the SAA can have a role in appropriate circumstances is inherent in the flexible nature of the requirement that the prisoner is treated with fairness that is the source of the right to an oral hearing.
I accept the contention that there is, as contended, "a core, irreducible, minimum entitlement". But what the Board does, if the need exists, to protect the safety of the public interest in, for example, a life threatening situation, is not necessarily inconsistent with achieving the minimum in question. There is an issue as to what is that minimum. The difficulty here is that we are only able to approach this case as a matter of principle. We cannot approach it upon the facts because we do not know the facts. There is a balancing exercise to be performed in order to determine whether the minimum is crossed. We are just not in a position to perform that balancing exercise. In order, therefore, to determine the agreed issue in the appellant's favour, we would first have to decide that there are no circumstances in which there can be no disclosure of "any evidence which decisively bears on the legality of his detention" which would then justify the appointment of a SAA. We do not know, for example, whether the inhibition on disclosure is temporary or likely to be permanent. We cannot even properly hazard a guess as to the scale of the danger to the public interest which the decision of the Board is intended to protect.
"(a) whether material to be relied on by the Secretary of State 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..."
This is what precisely has happened, but this does not affect the appellant's right to appeal.
Summary and Conclusion
(i) The Board has ample express and implied powers to enable the Board in the great majority of situations to give such directions as are needed to ensure that the proceedings before it are conducted fairly and justly having regard to the interests of the prisoner, the public and those who provide it with information to enable it to perform its role.
(ii) The Board has also, under the Rules made since 1992, an express power to give directions and those directions could relate to the non disclosure of information to the prisoner when this is necessary in the public interest. That is as long as those directions together with any mitigating steps, such as the appointment of a SAA, do not mean that there is a fundamental denial of the prisoner's rights to a fair hearing.
(iii) Where there should be, for public interest reasons that satisfy the Board, non disclosure not only to the prisoner but also his representatives, and the Board concludes that the nature of the proceedings and the extent of the non disclosure does not mean that the prisoner's right to a fair hearing will necessarily be abrogated, the Board has either an implicit or express power to give directions as to withholding of information and, if it would assist the prisoner, to the use of a SAA.
(iv) In the situation just described, if the Board comes to a decision in favour of the prisoner or reveals at least the gist of the case against the offender, then there may be no injustice to the prisoner, but if this is not what happens at the end of the proceedings the Board will have to consider whether there has been compliance with article 5(4) and the minimum requirements of fairness which are to be implied from the nature of the Board's duty under the 1991 Act. If there has not been compliance then either necessary steps must be taken to ensure compliance or the non disclosed material cannot be relied on.
(v) The answer to the issue identified at the outset of this judgment is that there can be situations where it is permissible and other situations where it is not permissible for the Board within the powers granted by the 1991 Act and compatibly with article 5(4); (a) to withhold material relevant to the appellant's parole review from his legal representatives, and (b) instead, disclose the material to a SAA.
(vi) Into which category a case falls can only be identified after examining all the circumstances and cannot be decided in advance as a matter of principle.
(vii) What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the Board using a procedure that involves significant injustice to the prisoner. If there has been, the decision should be quashed. The procedure may not be ideal procedure but it may be the only or the best method of balancing the triangulation of interests involved in the very small number of cases where a SAA may be instructed.
The question is therefore whether the power contained in the words "to do such things . . . as are incidental to or conducive to the discharge of [the relevant functions of the Board]," properly construed in its setting, is wide enough to cover the Parole Board's decision to take away a prisoner's right to a fair hearing. If the words of the statute do not authorise the power which the Board exercised, the decision is ultra vires. In examining this question the starting point is that the persuasive burden rests on the Parole Board to demonstrate that its departure from ordinary fair procedures is authorised by the statute.
This difference cannot be brushed aside. After debate Parliament may well have decided that an extension of the special advocate system to cases such as the present would not be justified. But Parliament has never been given the opportunity to consider the matter. This fact also suggests that the Parole Board's decision to depart from elementary fair procedures in the present case was precipitate. If the decision of the Parole Board is upheld in the present case, it may well augur an open-ended process of piling exception upon exception by judicial decision outflanking Parliamentary scrutiny.
This citation is directly in point because the authority upon which the Parole Board relies is a classic example of general words invoked to override a most fundamental right of due process. The courts must act on the basis that Parliament would always consider with great care whether it should override fundamental rights. And that must be particularly the case in circumstances in which the denial of the fair procedure may result in the indefinite detention of a prisoner whose tariff has long ago expired.
My noble and learned friend Lord Woolf, the Lord Chief Justice, has observed inter alia that if the Board reveals at least the gist of the case against the prisoner then there will be no injustice. But the Board affirmatively found in the present case that there can be no disclosure of even a gist to the prisoner. I note that the Lord Chief Justice observes that "both under article 5(4) and domestic law [the prisoner's] fundamental right to have a hearing that in all the circumstances at least meets the minimum standards that for reasons of fairness have to be respected". In my view it is a formalistic outcome to describe a phantom hearing involving a special advocate (as directed by the Board) as meeting minimum standards of fairness. In truth the special advocate procedure empties the prisoner's fundamental right to an oral hearing of all meaningful content.
This statement does not correctly reflect my position. In para 94 of my opinion I state:
This is a clear statement of the primacy of the need to protect innocent members of the public. My opinion speaks for itself and in the interests of economy I will not repeat my reasoning.
LORD RODGER OF EARLSFERRY
(a) be constituted in accordance with this Part; and
(b) have the functions conferred by this Part in respect of long-term and short-term prisoners and by Chapter II of Part II of the Crime (Sentences) Act 1997 in respect of life prisoners within the meaning of that Chapter."
There is a clear implication from the matters to which the Secretary of State has to have regard in giving directions under section 32(6) that these are objects of the Board. They are (a) the need to protect the public from serious harm from offenders and (b) the desirability of preventing the commission by them of further offences and securing their rehabilitation. As my noble and learned friend Lord Bingham of Cornhill confirmed in R (West) v Parole Board  1 WLR 350 at para 26, the Board's sole concern is with risk, and it has no role at all in the imposition of punishment.
By virtue of the provisions of the Crime (Sentences) Act 1997 and the Criminal Justice Act 2003 the Parole Board now has the function of deciding on the release of life prisoners, as distinct from merely advising the Secretary of State, and its remit extends to mandatory as well as discretionary life prisoners. Section 28(5) and (6) of the 1997 Act provide:
The express power contained in rule 6(3) for the chair of the panel to direct the withholding of a document from the prisoner's representative was an innovation in the 2004 Rules, though such a power may have previously existed by necessary implication. As my noble and learned friend Lord Woolf has pointed out, it will be exercised by a chairman who has held high judicial office and applies his experience of balancing conflicting considerations in deciding whether to give such a direction. The use of an SAA, with all of the handicaps which it imposes upon a prisoner, accordingly will operate to mitigate the rigour of a direction and the disadvantages accruing to him.
The three interests concerned have been referred to throughout this case as the "triangulation of interests".
Other practical difficulties involved in the use of SAAs were outlined by Lord Bingham of Cornhill in para 22 of his opinion in R v H  2 AC 134.
It was common case that this provision was engaged. A prisoner whose tariff period has expired is entitled to have his continued detention decided by a "court", and for these purposes the Parole Board has the essential features of a court. An adversarial procedure involving oral representation and the opportunity to call and question witnesses is required: Hussain v United Kingdom (1996) 22 EHRR 1.
It went on at para 42:
In the same vein he said in the earlier case of Brown v Stott  1 AC 681, 704: