Brooke & Anor, R (on the application of) v Parole Board & Anor

A body exercising judicial or court-equivalent functions must demonstrate objective independence and impartiality, both in fact and in appearance. The assessment is holistic. Appointment by a minister, departmental funding, rule-making powers and specialist membership are not necessarily objectionable individually. They may become unlawful when combined with insecure tenure, executive influence over decision-making, close departmental sponsorship and the minister’s status as a party. Security of tenure is an essential safeguard. A statutory power to make rules or give relevant guidance may be compatible with independence, but it cannot be used to alter a statutory decision-making test or control decisions allocated to the tribunal. The Parole Board’s arrangements therefore failed the common-law and Article 5(4) requirements of objective independence.

Three consolidated judicial review claims concerned decisions and prospective decisions of the Parole Board. The claimants challenged the Board’s structural independence because the Secretary of State appointed and could remove members, controlled its budget and rules, issued directions, housed and staffed it, and sponsored it within the relevant department while appearing as a party in every case.

The claims also raised case-specific issues. The court considered a challenge to recall and release decisions, a prospective challenge concerning a life prisoner, the unresolved application of Article 5(4) to an extended-sentence prisoner, and a reasons challenge in a recall case. The central issue was whether the Board objectively demonstrated sufficient independence from the Executive and the parties.

1. Declarations. The court held that the Parole Board did not sufficiently demonstrate objective independence from the Executive and the Secretary of State, contrary to the common law and Article 5(4). The assessment required consideration of the arrangements as a whole.
2. Appointment procedures, specialist probation membership, funding and rule-making powers were not necessarily incompatible with independence when considered separately. Appointment by the Secretary of State was acceptable where rigorously insulated from ministerial influence. Funding was lawful provided it was not used to influence decisions.
3. The combination of a short three-year renewable term with an unfettered power to remove members for unsatisfactory performance, without prescribed procedural safeguards, failed to provide adequate security of tenure. Departmental sponsorship also created an appearance that the Board was an in-house body.
4. The Department had unlawfully used budgetary control to restrict prisoner interviews, although the statutory decision whether an interview was necessary belonged to the Board. A ministerial initiative to appoint members with a view to changing release outcomes was similarly inconsistent with objective independence. The use of directions to narrow the statutory release test was a further illustration of the danger, as explained in R (Girling) v Parole Board [2006] EWCA Civ 1779.
5. The court could declare the arrangements unlawful but could not redesign them. Declarations were granted to Brooke, Ter-Ogannisyan and Murphy, and in part to O’Connell. O’Connell’s remaining issues were adjourned to a fresh court. The decisions in Brooke and Murphy were not quashed because they would not have been different absent the structural defects. Murphy’s reasons challenge failed: the Board was entitled to consider past conduct when assessing future risk management and had given sufficient reasons.

First-instance judicial review proceedings in the Administrative Court. The court granted declarations concerning the Board’s objective independence, declined to quash the decisions in Brooke and Murphy, rejected Murphy’s discrete reasons challenge, and adjourned final disposal of O’Connell’s claim.