Roberts v Parole Board

A Parole Board has inherent power to control its procedure and, in exceptional circumstances, may appoint a special advocate even where no express statutory provision authorises that course. The power is not confined to national-security cases. It may be used where withholding sensitive material is necessary to protect a source or an important public interest, and the alternative would be an assessment based on incomplete relevant material. The Board must balance the interests of the public, the prisoner and the source. Its decision must satisfy fairness and proportionality, assessed by review of the utmost intensity. The special advocate procedure must remain exceptional and must provide acceptable standards of fairness in the circumstances of the particular case.

The claimant, a mandatory life prisoner, challenged the Parole Board’s decision to withhold sensitive material from him and his ordinary legal representatives while disclosing it to a specially appointed advocate. The material concerned allegations of drug dealing and contraband and was said to create a real risk to the safety of its source if disclosed.

The claimant alleged discrimination under Articles 14 and 5(4) of the ECHR, arguing that a discretionary life prisoner would receive the protection of Rule 5 of the Parole Board Rules 1997. He also argued that appointing a special advocate was unfair and disproportionate. The central issues were whether the Board had power to use that procedure for discretionary and mandatory life prisoners, and whether its use was justified on the facts.

1. Judicial review claim dismissed. The Parole Board’s decision to appoint a specially appointed advocate was lawful. Permission to appeal was refused, with time extended to 28 days for an application to the Court of Appeal.

2. The Board’s procedural rules for discretionary life prisoners were not exhaustive. Rule 13(3), which entitled parties to participate as the panel thought proper, supported the conclusion that the Board retained power to deal with procedural situations not expressly covered by the rules. If the same circumstances arose in a discretionary life prisoner’s case, the Board could also appoint a special advocate.

3. There was therefore no differential treatment for the purposes of Article 14 read with Article 5(4). The discrimination ground failed at the first stage because the Board had power to adopt the same procedure for a discretionary life prisoner in comparable circumstances.

4. The Board had inherent powers to control its proceedings in mandatory life cases. In exceptional circumstances those powers included adopting the novel special advocate procedure. Exceptional circumstances were not confined to national security. Comparable constraints could arise where disclosure endangered a source or where an important public interest required the Board to decide dangerousness on the fullest possible relevant material.

5. The decision required a careful balance between the public interest, the prisoner’s interests and the source’s interests. The reviewing court was entitled to examine that balance with the utmost intensity, including the relative weight given to the competing considerations.

6. The Board had accepted that the procedure prejudiced the claimant, but had reasonably found a real and objectively justified risk of inadvertent disclosure through his representatives. The special advocate’s expertise, and the ability of the claimant’s solicitor to provide relevant written material, meant that the procedure could secure acceptable standards of fairness. The Secretary of State’s undertaking to the source did not unlawfully pre-empt the Board’s decision.

7. The court granted liberty to apply if the special advocate later considered that an adverse Parole Board decision was legally flawed and the claimant’s representatives lacked sufficient information to challenge it.

First-instance judicial review in the Administrative Court. The claim was dismissed. Permission to appeal was refused, with 28 days allowed for an application to the Court of Appeal.