Thursday, 9 August 2018

Independence of the Parole Board

Mr Justice Mostyn
In 2009, Mr Wakenshaw received an indeterminate sentence of imprisonment for public protection and has now served the minimum term stipulated within his sentence.   His continued detention is periodically reviewed by the Parole Board to determine his suitability for release.

In judicial review proceedings, Mr Wakenshaw claimed that the Parole Board lacked the requisite independence under the common law and article 5(4) of the European Convention on Human Rights.  He did not wish to prevent his current review going ahead but, more fundamentally, he claimed a declaration that the Parole Board was not an objectively fair adjudicative body.

In R (Wakenshaw) v Secretary of State for Justice [2018] EWHC 2089 (Admin) Mostyn J handed down his reasons for granting permission for judicial review.

By the time of the hearing, Mr W relied on 4 grounds - 

a) The Parole Board remains sponsored by the Ministry of Justice. As the Ministry is an invariable party to proceedings before the Board, it cannot be said that there is an appearance of fairness where the Ministry sponsors the Board.

b) The process of appointment to the Board is flawed.

c) Tenure once appointed is too short and too precarious.

d) The power of the Secretary of State to give directions to the Board impugns its independence.

Mostyn J  found that there was no merit in points (a), (b) and (d) - see paras 8 to 11 of the judgment.  However, there was merit in point (c) - tenure.

Mostyn J said - para 21 -

"In my judgment, the relatively short period of appointment (three or four years, renewable for three or four years) coupled with the power of the Secretary of State to remove a member if he is satisfied that he or she has failed without reasonable excuse to discharge the functions of his or her office for a continuous period of at least three months, or is unable to discharge the functions of the office, without recourse to any procedure or machinery to determine the merit, or otherwise, of a decision to remove him or her on one or other of these grounds, means that in this regard the provisions for tenure continue to fail the test of objective independence. I think that the reasonable, albeit well-informed, observer could conclude that the short term of appointment, coupled with the precarious nature of the tenure, might wrongly influence a decision that had to be made."

At para 27 Mostyn J said - "It is important to recognise that while the role of the Chair of the Parole Board is largely one of leadership, the occupant of the office still has significant judicial functions. Further, it would not be appropriate to consider the role and status of the Chair separately from the role and status of other members of the Board. All the members of the Board, including the Chair, are members of a quasi-judicial body in respect of which there must be complete objective independence ...."

The precarious tenure of Parole Board Members (including its Chairman) was well demonstrated by the Secretary of State's actions leading to the "no-real-choice resignation" in March 2018 of  Professor Nich Hardwick - please see Previous Post 3 April.   In that post I ventured to suggest that there were good grounds to think that Professor Hardwick was treated shabbily by the Secretary of State for Justice / Lord Chancellor - Mr David Gauke MP.

At para 31 Mostyn J said - "In my judgment it is not acceptable for the Secretary of State to pressurise the Chair of the Parole Board to resign because he is dissatisfied with the latter's conduct. This breaches the principle of judicial independence enshrined in the Act of Settlement 1701. If the Secretary of State considers that the Chair should be removed, then he should take formal steps to remove him pursuant to the terms of the Chair's appointment."

Mostyn J refused (para 34) to halt the current competition to select a new Chair of the Board.   The learned judge was "not satisfied that the balance of convenience militates in favour of such a disruptive remedy."  The application for an interim injunction was therefore refused.

The new Parole Board Chairman will be announced in September - see HERE.

It remains to be seen how the Secretary of State will address the Wakenshaw case.

Parole Board:

Concerns about the independence of the Parole Board have persisted for a considerable time.  It ought to be reconstituted as a truly judicial body.  Perhaps this could be done along the lines suggested 9 years ago by Justice - A new parole system for England and Wales.   This report suggested an independent Parole Tribunal with appeals to "a dedicated chamber within the Upper Tier." 


The Guardian 9 August 2018

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