Roberts v Parole Board

The Parole Board may, under the Criminal Justice Act 1991, adopt a specially appointed advocate procedure without express statutory wording. The power is ancillary to its protective and preventative function and applies in appropriate cases involving mandatory or discretionary life prisoners.

The procedure is justified only in exceptional circumstances. Fairness under Article 5(4) is contextual. Procedural rights may be qualified where necessary and proportionate to protect a source or important public interest, but the Board must mitigate the resulting disadvantage and secure substantial fairness. National security is not a prerequisite; protecting an individual source may suffice.

Harry Roberts, serving a life sentence for murder, had been considered likely to obtain release on licence. Allegations of drug dealing, bringing contraband into prison and related conduct led to a review of his eligibility. The Secretary of State provided the Parole Board with sensitive material which was withheld from Mr Roberts and his representatives.

The Board appointed a specially appointed advocate to examine the material and represent Mr Roberts at closed hearings. Maurice Kay J dismissed the judicial review claim: [2003] EWHC 3120 (Admin.). The challenge to the procedure’s application on the facts was not pursued on appeal. The central issue was whether the Board had power to use the procedure, or whether its use was confined to national-security cases.

1. Appeal dismissed. The Court of Appeal, in a judgment delivered by Tuckey LJ and agreed to by Clarke LJ and Jackson J, held that the Parole Board had power to appoint a specially appointed advocate in this case.
2. Section 32 of the Criminal Justice Act 1991 gives the Board broad procedural responsibility in carrying out its protective and preventative function. The Board must consider all evidence placed before it, including material obtained from a source whose safety may be endangered. That responsibility carries an inherent or implicit power to devise procedures necessary to perform the statutory task while maintaining substantial fairness. The absence of express authority, and the existence of express special-advocate provisions in other statutory contexts, did not alter that conclusion.
3. Where disclosure of sensitive evidence would create a real and sufficiently serious risk to a source, the Board may withhold the evidence from the prisoner and representatives. It must then use appropriate safeguards to mitigate the resulting unfairness. A specially appointed advocate may fulfil that function by examining the closed material, questioning witnesses and making submissions, subject to the restriction on communicating the material or obtaining further instructions. The procedure is exceptional and must not become routine.
4. Article 5(4) fairness must be assessed in context. Its constituent procedural rights are not absolute. Any restriction must be necessary and proportionate, and the interests of the prisoner, the public and persons requiring protection must be balanced. The court’s approach in Chahal v UK and Tinnelly & Sons Ltd v UK supported the importance of counterbalancing safeguards. The alternatives here were unacceptable: disclosure created a real safety risk, exclusion of the material would impair the Board’s protective function, and testing it without assistance would be inappropriate.
5. There was no principled distinction between protecting national security and protecting an individual source. The specially appointed advocate procedure was therefore not confined to national-security cases. The court declined to decide whether Article 6(1) was engaged, since that question was unnecessary and added little to Article 5(4) and common-law fairness. The appeal was dismissed, with costs on the usual CLS funding terms, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): On 28 July 2004 the appeal was dismissed. Permission to appeal to the House of Lords was refused.
• Queen’s Bench Administrative Court: Maurice Kay J dismissed the judicial review challenge to the Parole Board’s appointment of a specially appointed advocate: [2003] EWHC 3120 (Admin.).