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

The Parole Board Rules 2004 confer flexible procedural powers. Under rules 19 (2) and 19 (3), a panel may temporarily exclude a prisoner while a frightened essential witness gives evidence, although parties generally have rights to appear and participate. The legality of exclusion depends on the fairness of the proceedings as a whole. The exclusion must be justified and the prisoner’s position adequately protected. Legal representation, knowledge of the evidence and a proper opportunity to instruct and cross-examine may provide sufficient protection. Specific powers given to the chair under rules 19 (4) and 19 (6) do not restrict the panel’s general powers. The exclusion and hearing were lawful in this case.

This was an appeal concerning a Parole Board hearing following the appellant’s recall to prison. His former wife alleged threatening and assaultive conduct but was unwilling to give evidence in his presence because she feared him. The panel excluded the appellant while she gave evidence. His counsel remained present, later obtained instructions and cross-examined her.

Munby J upheld the panel’s power and the lawfulness of its procedure in the judgment reported at [2005] EWHC 2981 (Admin). The appeal concerned the proper construction of rules 19 (2) and 19 (3) of the Parole Board Rules 2004, and whether the exclusion resulted in an unfair hearing.

Appeal dismissed. Tuckey LJ gave the reasons, with Wilson LJ and Mummery LJ agreeing.

1. Power under the Rules. The short procedural code in the Parole Board Rules 2004 is expressed flexibly and is not intended to address every eventuality. Rule 19 (2) permits the panel to conduct the hearing in the manner most suitable to clarify the issues and to make its own enquiries about risk. It therefore permits temporary exclusion of a prisoner where an essential witness is too frightened to give evidence in the prisoner’s presence, since otherwise relevant information about risk may be lost.
2. Rule 19 (3) must also be given its ordinary meaning. The entitlement to take part in the proceedings is qualified by the provision allowing participation as the panel thinks fit. A party may therefore be prevented from taking a full part in part of the hearing. The requirements of the rule may be met through the prisoner’s legal representative.
3. The specific powers in rules 19 (4) and 19 (6) do not negative the general powers in rules 19 (2) and 19 (3). The former concern powers of the chair to preserve order and deal with evidence previously withheld under rule 8 (2) (d), whereas the latter concern the powers of the panel as a whole and extend beyond the parties.
4. Fairness. Analysed at common law or under Article 5 (4) of the Convention, the question is whether the proceedings as a whole were fair. Even assuming that the appellant had a right to be present, exclusion required sufficient justification and adequate protection of his position. The panel had to balance his interests with the wider interests of the community, with public protection predominant.
5. The exclusion was justified because the former wife’s fear was well founded and her evidence concerned central issues of risk. The panel was not required to conduct a preliminary enquiry into the reasonableness of her fear. The appellant’s position was adequately protected: he knew the substance of the evidence, his counsel heard it all, instructions were obtained and the witness was cross-examined. The case was materially different from R (Roberts) v Parole Board & anr. [2005] UKHL 45, where neither the prisoner nor his representative knew what was alleged. The reasoning was also consistent with R v Camberwell Green Youth Court [2005] UKHL 4, which recognised that physical confrontation is unnecessary if there is a proper opportunity to challenge the witness. The hearing was fair and the appeal was dismissed.

1. Court of Appeal (Civil Division) — In [2006] EWCA Civ 1222, the court dismissed the appeal and held that the panel had power to exclude the appellant temporarily and had exercised that power lawfully.
2. Administrative Court — Munby J, in [2005] EWHC 2981 (Admin), held that rules 19 (2) and 19 (3) conferred the power and that the procedure was lawful. The Court of Appeal affirmed that conclusion.