Judgments - Roberts (FC) (Appellant) v Parole Board (Respondents)

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    29.  The first, second and fourth of these Northern Irish instances are consistent with the legislative practice adopted in Great Britain, as briefly summarised in paras 26-27 above. The third instance is different, and the Parole Board placed strong reliance on it. But the 1995 Act provided for revocation decisions to be made by the executive, without any provision for judicial review of the revocation decision or any provision for an adversarial hearing. It was blatantly incompatible with the Convention, and the safeguards introduced by the Secretary of State were an attempt to rescue it. By providing for the possibility of oral hearings and for special advocates the Secretary of State effected an improvement on the procedure which had hitherto prevailed. But it would in my opinion be very dangerous to draw any inference from a procedure devised to meet an emergency, in the absence (unlike all the other examples considered) of any express statutory authority or rule-making power, the lawfulness of which may well be open to question (although, in the absence of argument, I express no opinion on the point).

    30.  The examples considered above show plainly that Parliament in practice observes the principle of legality. If it intends that a tribunal shall have power to depart from the ordinary rules of procedural fairness, it legislates to confer such power in clear and express terms and it requires that subordinate legislation regulating such departures should be the subject of Parliamentary control. It follows this practice even when the security of the nation is potentially at stake. Reference to Hansard shows that measures of this kind have repeatedly been the subject of anxious and detailed debate. It is in my opinion contrary to legal principle and good democratic practice to read such a power into a statute which contains no hint whatever that Parliament intended or even contemplated such a departure. Had it done so, as in the other cases considered, the departure would have been carefully defined and controlled. It is nothing to the point to argue that if damaging adverse evidence is withheld from a prisoner and his legal representative he is better off with the limited help given by a specially appointed advocate than without it, unless there is lawful authority to conduct the hearing while withholding such evidence from the prisoner, which in the present context there is not.

    31.  The Board and the Secretary of State gain no support for the contrary proposition from three cases cited in argument: Secretary of State for the Home Department v Rehman [2003] 1 AC 153; R v Shayler [2002] UKHL 11, [2003] 1 AC 247; and R v H [2004] UKHL 3, [2004] 2 AC 134. In the first of these cases, an appeal from SIAC, in which a special advocate had appeared, the Court of Appeal received written submissions from a special advocate: see paras 31-32. It was clearly within the inherent power of the court to do so to make the appeal effective. There could scarcely have been a meaningful appeal had the Court of Appeal not been able to put itself in the same position as SIAC. In the second, the House contemplated use of a special advocate if a former member of a security service were to seek judicial review of a refusal of permission to publish. This also would be within the inherent power of the court if the object of the proceedings was not to be frustrated, and the context under consideration was far removed from one in which a tariff-expired mandatory life sentence prisoner faces the prospect of lifelong incarceration for reasons not communicated to him or his legal representative. In the third of the cases the House held that a special advocate might, exceptionally, be appointed in a criminal case to help resolve an issue whether a trial could be fairly conducted if material, favourable to the defendant, were not disclosed to him. It was not suggested or contemplated that any part of the prosecution case against the defendant could be properly withheld from the defendant and his legal representative, a consideration which distinguishes that case from the present.

    32.  In my opinion the procedural course proposed in the Board's decision letter of 13 June 2003 was one it had no power to adopt. I would accordingly allow the appeal and quash that decision.

LORD WOOLF

My Lords,

    Background

    33.  I have found it especially helpful in this case to have had the opportunity to read the speeches of my noble and learned friends in draft.

    34.  The issue which we are required to determine is identified in the agreed statement of facts and issues in these terms:

    "Whether the Parole Board, a statutory tribunal of limited jurisdiction, is able, within the powers granted by the Criminal Justice Act 1991, and compatibly with article 5 of the European Convention on Human Rights ('the Convention'):

    (a)  to withhold material relevant to [the appellant's] parole review from [his legal representatives] and

    (b)  instead, to disclose that material to a specially appointed advocate ('SAA'), who will represent [the appellant], in [his] absence, at a closed hearing before the Board."

    35.  That issue is one of principle and not confined to the facts of this case; it was so treated before the Court of Appeal (as para 18 of the agreed statement of facts and issues records) and it has been so argued before us. It is therefore not necessary for me to refer to the facts of this case and I do not purport to do so. I am content to adopt the summaries which are set out in the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Carswell. However, the fact that we are dealing with the issue as a matter of principle means that our decision has wide implications for how the Board performs its functions and its ability to perform its statutory role. That statutory role is one which is already of considerable significance within the criminal justice system, a significance which will be increased because of the new sentences of life imprisonment, detention for life and detention for public protection in relation to serious offences created by Chapter 5 of the Criminal Justice Act 2003. In addition it means that while I am able to set out my views on the issues of principle I am unable to say what effect those views will have on the appellant's rights. This will probably only be able to be determined during or after the hearing on the facts by the Board, as to the merits, on whether the appellant should be released on licence.

    36.  In order to perform its role, to which I will refer later, the Board is dependent upon the information with which it is provided. It has no power to compel witnesses to attend its hearings but it can invoke the assistance of the High Court for this purpose. However, this residual power of compulsion does not assist in those cases where it is desirable that it receives the information, but the information will only be provided if it can be made available to the Board in circumstances in which its sources can be confident that their identity will be protected from disclosure.

    37.  That the Board should be able to perform its functions effectively is particularly important in the case of those who are sentenced to life imprisonment, whether the sentence of life imprisonment is discretionary or mandatory. In these cases, a period is now identified by the sentencing judge which is the minimum period to be served by way of punishment and deterrence. The sentencing judge does not need to consider the question of future risk to the public because this is dealt with by the Parole Board when the question of the release of the prisoner on licence comes to be considered after the prisoner has served the minimum term. At the time the appellant was sentenced in September 1966 the position was very different because, although at that time the Secretary of State would take into account the views of the Chief Justice and the trial judge as to the period to be served as a punishment and by way of deterrence, the sentence was still regarded as actually one of life imprisonment and release on licence was a matter of discretion for the Secretary of State alone.

    38.  In the very different situation that exists to day, it is desirable for the question of risk to be considered by the Parole Board rather than the sentencing judge. The Board should be in a position to know all the relevant information about the progress that the prisoner has made during his sentence. In addition, in some situations, the risk that will exist could relate to circumstances that did not exist at the time of sentence. However, both from the point of view of the prisoner and from that of the public, whom the Board is intended to protect, it is critical that the Board, whenever possible, is aware of any relevant information before it reaches its decision to release a prisoner on licence.

    39.  If this appeal is allowed this could affect the ability of the Board to perform its functions in future. In addition, the decision could affect the powers of other administrative bodies that determine issues that impact upon the rights of the individual, at least where those administrative bodies are subject to procedural rules made under statute. I draw attention to this aspect of this appeal since it justifies my reiterating well established basic principles of administrative law.

    40.  The principles have been set out in many cases of high authority, with greater elegance, but I would summarise them as follows:

    (i)  An administrative body is required to act fairly when reaching a decision which could adversely affect those who are the subject of the decision.

    (ii)  This requirement of fairness is not fixed and its content depends upon all the circumstances and, in particular, the nature of the decision which the body is required to make.

    (iii)  The obligation of fairness to which I refer can be confined by legislation and, in particular, by rules of procedure, provided that the language used makes its effect clear and, in the case of the secondary legislation, it does not contravene the provisions of the Convention (in the context of the present appeal, this means article 5(4) as it is accepted article 6 has no application).

    41.  A case which considers these principles in the context of a criminal trial, where the responsibility rests not upon an administrative body but a court, is R v H [2004] 2 AC 134. In that case, the defendants had been charged with others with conspiracy to supply a Class A drug. At a preparatory hearing the Crown sought a ruling as to whether material could be withheld from disclosure to the defence on the ground of public interest immunity ("PII"). The judge ruled that the hearing should not be conducted in open court in the presence of the defendants and that a special independent advocate ("SAA") should be appointed to introduce an adversarial element into the hearing. This was done to avoid a violation of article 6 of the Convention. It was decided that the appointment of a special counsel to represent a defendant as an advocate on such an application might, in an exceptional case, be necessary in the interests of justice, but such an appointment should not be ordered unless and until the trial judge is satisfied that no other course would adequately meet the overriding requirement of fairness to the defendant. My noble and learned friend Lord Bingham of Cornhill in giving the opinion of the Committee made the following important statements of principle which are of relevance to the different context in which the Board operates:

    "11.  Fairness is a constantly evolving concept…it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.

    12. …  The European Court has repeatedly recognised that individual rights should not be treated as if enjoyed in a vacuum: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52. As Lord Hope of Craighead pointed out in Montgomery v H M Advocate [2003] 1 AC 641, 673:

    'the rule of law lies at the heart of the Convention. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasbourg court has taken to the question whether there are sufficient safeguards recognises this fact.'

    13.  The institutions and procedures established to ensure that a criminal trial is fair vary almost infinitely from one jurisdiction to another, the product, no doubt of historical, cultural and legal tradition…

    18.  Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and undercover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial…

    22.  There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant's right to a fair trial. Such an appointment does however raise ethical problems…Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant…

    23.  The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. It is not surprising that complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of our domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively: Klass v Federal Republic of Germany (1978) 2 EHRR 214, 232, para 48…

    32.  The appellants contended that, taken at its narrowest, the principle established by Edwards and Lewis is that it is incompatible with article 6 for a judge to rule on a claim to PII in the absence of adversarial argument on behalf of the accused where the material which the prosecution is seeking to withhold is, or may be, relevant to a disputed issue of fact which the judge has to decide in order to rule on an application which will effectively determine the outcome of the proceedings. It was argued that the Edwards and Lewis principle applies wherever the defence rely on entrapment to stay the proceedings or exclude evidence, but does not apply to entrapment only and is not confined to determinative rulings. It was however acknowledged that there is no absolute rule which requires the appointment of special counsel in any particular kind of case.

    33.  These submissions, in our opinion, seek to place the trial judge in a straitjacket. The consistent practice of the court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, but to avoid laying down rigid or inflexible rules. There is no doubt as to the principles to be applied - the more important have been identified in earlier paragraphs of this opinion - and there is no dissonance between the principles of domestic law and those recognised in the Convention jurisprudence. It is entirely contrary to the trend of Strasbourg decision-making to hold that in a certain class of case or when a certain kind of decision has to be made a prescribed procedure must always be followed. The overriding requirement is that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone is to ascertain what justice requires in the circumstances of the particular case."

    42.  The position of a person who is being considered for release on licence, as I have indicated, is not identical to that of a defendant in a criminal trial which was being considered in H. However, these statements could be even more apposite in the case of the Board. I have already indicated that article 6 does not apply to the Board's role. Furthermore, although the decision of the Board is of the greatest importance to a prisoner, the prisoner has inevitably already been found or pleaded guilty, and in the case of a prisoner sentenced to life imprisonment, the offence would have been a grave crime. Furthermore, any decision to find an offender guilty is a once and for all decision, but in the case of a decision of the Board, the decision can always be changed with the passage of time. Finally, the task of the court is to determine the guilt or innocence of a defendant, while the task of the Board is to determine whether it is safe for the prisoner to be released.

    43.  Based on Lord Bingham's approach it can therefore be accepted when determining the outcome of the issue that fairness is a "constantly evolving concept". Provision has to be made when it is necessary for derogation from the golden rule of full disclosure but the derogation must be the minimum necessary to protect the public interest. When there has to be derogation there can be cases in which the appointment of a SAA is, in the interests of justice, advantageous. The European Court of Human Rights ("ECtHR") has accepted that some operations "must be conducted secretly if they are to be conducted effectively". Finally, there is the fact that the trial judge should not be placed in a straitjacket. Instead the decision sets out principles and indicates those principles should be applied on a case by case basis: "in the infinitely diverse situations with which trial judges have to deal,…the touchstone is to ascertain what justice requires in the circumstances of the particular case". These points are all highly relevant to the determination of the issue.

    44.  The other point to which it is worth drawing attention from the different context of the criminal trial is that the evolving practice of the criminal courts with regard to non-disclosure because of PII, was, as in the case of the Board, until relatively recently, not dealt with specifically in legislation or the subject of rules. It arose out of the decisions of courts. It was not dependent on the inherent jurisdiction of the courts. Instead it existed because it is a characteristic of courts (shared by tribunals) whether created by statute or by common law that they are masters of their own procedure subject to any limitation imposed by legislation. For courts, there is now a legislative framework. This is provided by the Crown Court (Criminal Procedure and Investigations Act 1996 (Disclosure)) Rules 1997 (SI 1997/698 (L4))which came into force in April 1997. There is also a legislative framework for the Board.

    The Board's Statutory Framework

    45.  The changed statutory context in which the Board now decides the date on which a life sentence prisoner is released is provided by the Crime (Sentences) Act 1997 ("the 1997 Act"). The 1997 Act provides the regime under which both mandatory and discretionary prisoners are released. Section 28 contains the duty to release. It provides, so far as relevant:

    "(1A)  This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order.

    (5)  As soon as-

    (a)  a life prisoner to whom this section applies has served the relevant part of his sentence; and

    (b)  the Parole Board has directed his release under this section,

    it shall be the duty of the Secretary of State to release him on licence.

    (6)  The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless -

    (a)  the Secretary of State has referred the prisoner's case to the Board; and

    (b)  the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

    (7)  A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time -

    (a)  after he has served the relevant part of his sentence; and

    (b)  where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

    (c)  where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence…"

    46.  Section 28(6) sets out clearly the nature of the Board's "responsibility". In exercising that responsibility, the Board is required to make a practical judgment, "balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public" (if this is the case) "against the need to protect the public…In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance, the board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury" (R v Parole Board, Ex p Watson [1996] 1 WLR 906, 916-917 per Sir Thomas Bingham MR). Obviously, as emphasised in R (West) v Parole Board [2005] 1WLR 350, the prisoner should, therefore, "have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society".

    47.  This is particularly important because so far as the Board is concerned, the position is clear: a prisoner can only be released on licence if the Board is satisfied that it is no longer necessary for him to be confined. In expressing the matter in that way, I am not intending to depart from Lord Bingham's statement in R v Lichniak [2003] 1 AC 903, 913 para 16 that he doubted "whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment". While that is correct, the Board has still to decide whether "it is no longer necessary… that the prisoner should be confined".

    48.  It is next necessary to refer to the power, not of the Board but of the Home Secretary, to make rules relating to the procedure to be employed by the Board when conducting a hearing. However, before considering the rules, it is important to emphasise that even if there were no rules, made either by the Home Secretary or the Board, the Board would undoubtedly have the responsibility to reconcile so far as it can, what Lord Carswell rightly describes as a triangulation of interests: the Board's obligations to the prisoner and its obligation to protect society and, as part of the latter obligation, its obligation to protect third parties so far as it is practical to do so having regard to the Board's other responsibilities. Procedural rules cannot be devised that anticipate all the situations that can arise where a tribunal has to exercise its discretion to determine its own procedure in order to reconcile conflicting interests of the nature to which I have just referred.

    49.  My Lords, in determining the point of principle we are asked to decide, we cannot ignore the reality of certain criminal activity today. For example, the lives of the sources of the essential information which the Board requires, if it is to safeguard society can, in some cases, be at grave risk if their identities are revealed. Not all legal advisors can be trusted. A legal advisor may not only be acting for the prisoner but also for other parties who could be equally antagonistic to the source. The category of prisoners the Board has to consider who are serving a mandatory life sentence may, even after very long terms of imprisonment, remain extremely dangerous individuals. So, while this, fortunately, only occurs on rare occasions, it is inevitable that situations will arise where the Board is faced with the predicament of deciding to significantly curtail the protection of what is normally provided for a prisoner in order to perform its statutory duty. The circumstances in which this can happen are demonstrated by the decisions of the Board and the Administrative Court in this case.

    50.  While we do not know the contents of the closed evidence in this case, we have to accept that a case could well occur where a witness would be able to satisfy the Board that there would be a real danger of a prisoner killing someone if he is released, but the witness who could provide the evidence of this is not prepared to make available the evidence if it may be disclosed to the prisoner or his representatives. In such a situation it appears that there can be no alternative but for the Board to weigh up the conflicting interests of the prisoner and society. It would conflict with the Board's statutory duty for the Board to ignore the evidence unless this is what article 5(4) or domestic law require.

    51.  The fact that the prisoner has been convicted of the most serious of crimes and been sentenced to life imprisonment makes his position significantly different from that of someone who has not been convicted and who is awaiting trial. In the latter situation, the predicament has, if necessary, to be resolved in the accused's favour. If necessary, the prosecution may have to be discontinued if disclosure is essential for the proper conduct of the prosecution. (See Edwards v United Kingdom (2003) 15 BHRC 189). In Stafford v United Kingdom (2002) 35 EHRR 1121, the ECtHR, while condemning the approach of the executive at that time, was careful to restrict its criticisms to "perceived fears of future non-violent criminal conduct unrelated to his original murder conviction" (emphasis added) (para 82). This does not however mean that the prisoner has no rights that have to be respected. As I will explain later both under article 5(4) and domestic law his 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.

 
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