"We will conduct a root-and-branch review of the parole system to improve accountability and public safety, giving victims the right to attend hearings for the first time, and we will establish a Royal Commission on the criminal justice process."
In March 2022, the government published - Root and Branch Review of the Parole System - GOV.UK (www.gov.uk).
Probation Board Rules were made in 2019 by the then Secretary of State for Justice - Robert Buckland QC MP. Those Rulesenabled reports about prisoners to include "views on suitability for release on licence". When making a decision whether to release a particular prisoner, the Parole Board would obviously take into account those views but the Board was NOT bound by the views.
Parole Board (Amendment) Rules were made in 2022 by Dominic Raab - (now the Secretary of State for Justice). The amendment rules are a ridiculously long exercise in "cut and paste". It beggars belief that the 2019 Rules could not have simply been replaced by new rules. However that may be, the amendment mostly came into force on 21 July 2022.
One of the significant changes made by the Amendment Rules is that reports on prisoners are no longer to contain views on suitability for release. Instead, the Secretary of State will present to the Parole Board a single view about suitability for release. The Parole Board is therefore prevented from seeing the actual reports from people such as Prison Offender Managers - the very people likely to have seen much more of the offender than the Secretary of State or his officials could ever do.
In addition to new Rules, HM Prison and Probation Service issued a 20 page guidance document to all staff "involved in writing parole and recall review reports, or who are attending oral hearings, about recent significant changes to the parole and recall process."
The guidance stated that - "From 21 July HMPPS witnesses in oral hearings must no longer provide a view or recommendation about suitability for release or a move to open conditions, unless they have submitted a report with a recommendation before 14 July."
Adrian John Bailey was convicted of murder on 26 January 2006 and sentenced to life imprisonment. He is now eligible for release provided that the Parole Board so decides. He is a category D prisoner at HMP Haverigg - an open prison.
Bailey did not wish the amended rules to be applied to his case and so he applied for judicial review. He also asked the High Court to grant "relief" pending the judicial review being heard and decided. Such interim relief would prevent the new Rules and connected guidance being applied to his case.
See the judgment of His Honour Judge Bird - Bailey, R (On the Application Of) v Secretary of State for Justice  EWHC 2125 (Admin) (09 August 2022) (bailii.org)
The grounds argued for judicial review are set out in paragraph 21.
The appropriate test for interim relief is set out at paragraph 9 of the judgment of Swift J in R (on the application of Hussain) v The Secretary of State for Health and Social Care  EWHC 1392 (Admin) -
"There is no dispute as to the principles to apply when deciding this application for interim relief. In this case, the Claimant must first show a real prospect that at trial he will succeed in obtaining a permanent injunction, taking account of the fact that any decision to grant such relief would include consideration of the public interest. If the required real prospect exists, the next issue is whether or not the balance of convenience favours the grant of relief. As is ordinarily the case, the balance of convenience requires me to assess the prejudice that would arise if interim relief were wrongly granted, and weigh that against the prejudice that would arise were interim relief wrongly to be refused. At this stage too, the public interest is a relevant consideration: ....."
Judge Bird applied this at paragraphs 26 to 45. On at least one ground, the amended Rules passed the "real prospect" of success part of the test but the balance of convenience was against granting relief. The Guidance also passed the real prospect of success part of the test and the balance of convenience favoured granting relief.
Permission was granted for the judicial review to proceed on all grounds.
When considering the test for interim relief, it is of interest to note that the judge referred to the Conservative Party election manifesto.
He said - at paragraph 32 - "In my view the public interest strongly favours keeping the amended rules in place until a final decision can be made. The Secretary of State's decision to amend the rules follows a manifesto commitment to review and, where necessary, make changes to the parole system. In my view there is a strong public interest in allowing the "apparently authentic" new procedures to stand pending the determination of the present proceedings. The Secretary of State's view that it is beneficial to avoid conflicting recommendations is in my view sufficient to establish for the purposes of this application a real public interest in the changes." [My emphasis].
Regarding the guidance, the judge said - at para 41 - "The guidance does not arise as part of a manifesto pledge and so cannot obviously be seen as having a democratic mandate. The rationale for it is in my view not clear. It does not appear in the root and branch and review and for the reason I have given it appears to go beyond the scope of the amended rules."
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29 August 2022