R (Roberts) v Parole Board

The House considered whether the Parole Board, within the scope of the Criminal Justice Act 1991 and relevant rules, may withhold sensitive material from a tariff-expired life prisoner and his legal representatives and disclose it instead to a specially appointed advocate (special advocate) to assist the Board at a closed hearing, consistent with article 5(4) of the European Convention on Human Rights. The majority held that the Board has power, in principle, to adopt such a procedure in exceptional cases and that its use is not necessarily incompatible with article 5(4), provided the procedure as applied affords the prisoner the minimum core of fairness and the use of special advocates is tailored and last resort. The minority would have held the Board acted ultra vires and that such a fundamental departure from ordinary standards of procedural fairness required clear parliamentary authorisation.

This appeal arose from the Parole Board's decision to withhold from Mr Harry Roberts (a tariff-expired mandatory life prisoner) certain "sensitive material" on grounds that disclosure would endanger the safety of the source, and to disclose that material only to a specially appointed advocate (SAA) who would represent the prisoner in closed sessions. The prisoner challenged the lawfulness of that procedure.

The factual background is that Mr Roberts was convicted of three murders in 1966 and served a 30-year tariff term. The Parole Board and the Secretary of State placed sensitive material before the Board in connection with a review beginning in 2001; the material was not the subject of criminal charge or adversarial inquiry and was said to risk source safety if disclosed. A specially appointed advocate was appointed, the Board conducted a two-stage hearing (open and closed), and the Board directed non‑disclosure of the sensitive material to the prisoner and his representatives while disclosing it to the SAA. The prisoner sought judicial review; Maurice Kay J upheld the procedure on the closed material and dismissed the challenge, and the Court of Appeal dismissed the appeal on principle before the House of Lords.

The House framed the legal issues as: (i) whether the Parole Board had power under the 1991 Act (and incidental powers) and the Rules to adopt the SAA procedure and withhold sensitive material from both prisoner and his legal representatives; and (ii) whether that procedure is compatible with article 5(4) ECHR and domestic standards of natural justice.

The majority (Lords Woolf, Rodger and Carswell) concluded that the Board has both express and implied powers sufficient to permit withholding in exceptional cases under the Rules (notably rule 6 of the 2004 Rules) and to appoint a specially appointed advocate where this is necessary to mitigate prejudice to the prisoner and to enable the Board to perform its statutory function of protecting the public. They stressed that any departure from ordinary disclosure must be necessary, proportionate, confined to rare cases, and applied so as to preserve the irreducible minimum of fairness required by article 5(4). The majority dismissed the appeal, emphasising fact-specific appraisal and appellate review of the overall process.

The minority (Lords Bingham and Steyn) accepted the need to protect sources and public safety but considered that the special advocate procedure, when it results in withholding even a gist of the case and prevents meaningful instruction, entails such a substantial curtailment of fundamental rights that it could not be impliedly authorised by the general incidental powers of the Board. They would have allowed the appeal and quashed the Board's decision, holding that such a radical departure required clear primary legislation.

The House therefore decided the issue of principle: special advocates and closed material may be used in rare and exceptional cases but only within strict limits; whether the procedure violated article 5(4) must be judged on the full facts and the proceedings as a whole.

Appeal dismissed. By majority the House held that the Parole Board has, in principle, power under the statutory framework and Rules to withhold sensitive material from a prisoner and his representatives and to disclose it to a specially appointed advocate in exceptional cases, provided that the procedure as applied remains compatible with article 5(4) ECHR and preserves the minimum requirements of fairness; the question of compatibility depends on the facts and the process as a whole.

Judicial review in the High Court: Maurice Kay J dismissed the challenge ([2003] EWHC 3120 (Admin)). Appeal to the Court of Appeal: appeal dismissed ([2004] EWCA Civ 1031, [2005] QB 410). Appeal to the House of Lords: [2005] UKHL 45.