Robert Gardner, R (on the application of) v The Parole Board

The Parole Board may exclude a prisoner from part of a hearing while evidence is given where its procedural rules confer a broad power to conduct proceedings in the manner most suitable for clarifying the issues and handling the case justly. That power must be exercised compatibly with Article 5(4).

The fairness of the proceedings is assessed as a whole and is highly fact-sensitive. The Board must balance the prisoner’s interests against the public interest and the interests of vulnerable witnesses. Exclusion may be lawful where adequate counterbalancing safeguards remain, including representation, the opportunity to challenge the evidence and the absence of material prejudice.

The claimant, a life prisoner whose tariff had expired, challenged the Parole Board’s decision to exclude him while his former wife gave evidence at a recall hearing. His counsel remained, observed the evidence, obtained further instructions and cross-examined her.

The claimant argued that the Board lacked domestic-law power to exclude him, that such a power was incompatible with Article 5(4), and that the particular decision was unfair. The proceedings were deferred pending the House of Lords’ decision in R (Roberts) v Parole Board and another, [2005] UKHL 45.

1. Power under domestic law. Rule 19(2) of the Parole Board Rules 2004 required the panel to conduct the hearing in the manner most suitable to clarify the issues and handle the proceedings justly. Construed purposively, it conferred power to exclude a prisoner where necessary to reconcile the interests of the prisoner, the public and witnesses. Rule 19(3), including the words permitting the prisoner to take such part in the proceedings as the panel thought fit, did not prevent that conclusion. The specific powers in rules 19(4) and 19(6) did not impliedly restrict the general power.
2. The same result followed from paragraph 1(2)(b) of Schedule 5 to the Criminal Justice Act 1991. The reasoning of the majority in R (Roberts) v Parole Board and another, [2005] UKHL 45, established that the Board had express and implied powers incidental or conducive to the discharge of its functions, including protection of informants and witnesses.
3. Convention compatibility. Article 5(4) did not necessarily require the prisoner’s personal presence throughout the hearing. The principles in Doorson v Netherlands, (1996) 22 EHRR 330, showed that the interests of the defence may be balanced against the safety and welfare of witnesses, provided the resulting handicap is adequately counterbalanced. The domestic rules were therefore compatible with the Convention.
4. Application to the facts. The panel was entitled to regard the wife as vulnerable, to take account of the assurance given to her, and to conclude that her important evidence might otherwise not be obtained. The claimant’s counsel was present throughout, cross-examined the wife and was able to obtain further instructions. The panel considered the wife’s evidence alongside other material and the claimant identified no actual prejudice.
5. Fairness had to be assessed by looking at the proceedings as a whole, with acute sensitivity to the facts. The panel’s decision was lawful, fair at common law and compliant with Article 5(4). The application for judicial review was dismissed. Permission to appeal was refused.

This was a first-instance judicial review in the Administrative Court. The application for judicial review and the claimant’s application for permission to appeal were dismissed.