Roberts (FC) (Appellant) v. Parole Board (Respondents)

A Parole Board empowered to withhold sensitive material from a prisoner’s representative may, in rare and exceptional cases, appoint a special advocate where that step is incidental or conducive to its release function and mitigates an unavoidable disadvantage. Non-disclosure must be necessary and proportionate, and the procedure must be a last resort.

Compliance with article 5(4) of the European Convention on Human Rights depends on the proceedings as a whole. The Board must balance the prisoner’s ability to answer the case, the safety of informants and the protection of the public. It should provide the widest disclosure possible, including a gist or redacted material where practicable. If the irreducible minimum of fairness cannot be maintained, the undisclosed material cannot be relied upon.

Roberts (FC) (Appellant) v Parole Board (Respondents) concerned a mandatory life prisoner whose 30-year tariff had expired. Reports initially recommended release, but he was returned from open to closed conditions after allegations of misconduct. The Secretary of State supplied the Parole Board with sensitive material said to require protection because disclosure could endanger its source.

The Board directed that the material be withheld from the prisoner and his lawyers but disclosed to a specially appointed advocate for use at a closed hearing. The Administrative Court dismissed a judicial review challenge: [2003] EWHC 3120 (Admin), [2004] 2 All ER 776. The Court of Appeal dismissed a further appeal: [2004] EWCA Civ 1031, [2005] QB 410.

The central question was whether the Board possessed statutory power to adopt that procedure and whether its use was capable of complying with article 5(4) of the European Convention on Human Rights.

1. Appeal dismissed by a majority of three to two. Lord Woolf, Lord Rodger of Earlsferry and Lord Carswell held that the Parole Board could, in an appropriate case, withhold sensitive material from a prisoner’s legal representatives and appoint a specially appointed advocate. Lord Bingham of Cornhill and Lord Steyn dissented.

2. Statutory power. The majority held that rule 6(3) of the Parole Board Rules 2004 expressly permitted the panel chair to direct that sensitive information be withheld from the prisoner’s representative. The validity of that rule was not challenged. Appointment of a special advocate mitigated the resulting disadvantage and was incidental or conducive to the Board’s functions within paragraph 1(2)(b) of Schedule 5 to the Criminal Justice Act 1991. Per Lord Rodger and Lord Carswell, the appointment enabled the Board to consider relevant information while affording the prisoner a measure of procedural protection. Per Lord Woolf, the Board also possessed powers to control its procedure so as to reconcile the interests before it.

3. Article 5(4) and procedural fairness. The majority rejected a categorical rule that the procedure was always unlawful. The relevant inquiry examines the proceedings as a whole and balances three interests: the prisoner’s ability to answer the case; the safety and welfare of the source; and the public interest in an informed assessment of risk. The approach in R v H [2004] UKHL 3 supported a fact-sensitive assessment rather than an inflexible procedural rule. The House could not determine prospectively whether the eventual parole hearing would satisfy article 5(4), because the Board might reject the sensitive evidence, disclose its gist, use redacted material, release the prisoner or decide without relying on that evidence.

4. Limits on the procedure. The special advocate procedure was not a substitute for ordinary disclosure and could not remove its serious disadvantages. It was available only exceptionally and as a last resort. The Board had to minimise non-disclosure, reconsider it as circumstances changed and disclose the widest information compatible with the competing interests. If the completed process denied the prisoner the irreducible minimum of a fair hearing, the material could not be relied upon and any resulting decision could be quashed.

5. Dissent. Lord Bingham and Lord Steyn considered the Board’s decision ultra vires. In their view, general words authorising acts incidental or conducive to statutory functions could not authorise a radical departure from natural justice. The principle of legality required clear primary legislation before adverse material could be withheld from both a prisoner and his lawyers and used at a closed hearing. Lord Steyn further considered that withholding even the gist of the case reduced the oral hearing to one without meaningful content.

1. House of Lords: By a majority of three to two, dismissed the appeal and left the Court of Appeal’s order undisturbed: [2005] UKHL 45.
2. Court of Appeal: Dismissed the appeal and held that the Parole Board could adopt the special advocate procedure in a suitable exceptional case: [2004] EWCA Civ 1031, [2005] QB 410.
3. Administrative Court: Maurice Kay J dismissed the application for judicial review in an open judgment and also delivered a closed judgment concerning the sensitive material: [2003] EWHC 3120 (Admin), [2004] 2 All ER 776.
4. Parole Board: On 13 June 2003, directed that the sensitive material be withheld from the prisoner and his lawyers but disclosed to a specially appointed advocate for a two-stage hearing.