Rowe, R (on the application of) v Secretary of State for the Home Department

A public decision-maker must ask the correct question and take reasonable steps to obtain information relevant to answering it. The scope of that duty depends on the importance of the information, the decision being made and what is at stake. A specialist body such as the Parole Board is entitled to substantial deference concerning the evidence it receives, provided its procedure is fair and its reasons sound. In a terrorism-related parole case, current security information may be essential when deciding licence conditions, even if the existing material is sufficient to decide the release date. The court may give a direct procedural order where remittal would cause avoidable delay and the result on reconsideration is effectively inevitable.

The claimant, a long-term prisoner convicted of terrorism offences, challenged the Parole Board’s refusal to request current risk information from MAPPA, the police and the Security Service. He sought an early release recommendation and the determination of appropriate licence conditions. The Board had access to existing material and stated that it would not draw adverse inferences from the absence of further information. The central issues were whether the Board had failed to take reasonable steps to obtain relevant information and whether its decision addressed both the release date and the licence conditions.

1. The claim succeeded in part. The common law requires a decision-maker to ask the right question and take reasonable steps to obtain relevant information enabling it to answer that question correctly. Relevance and reasonableness are fact-sensitive and depend, among other matters, on the importance of the information and the consequences of the decision.
2. Substantial deference was owed to the Parole Board as a specialist body. Applying R (on the application of Brooks) v Parole Board [2004] EWCA Civ 80, the court would not dictate how the Board conducts its business unless its decision was unfair or otherwise susceptible to judicial review.
3. Existing material was sufficient, on the particular facts, for the Board to determine whether the claimant should be released before his automatic release date. The refusal to obtain MAPPA minutes and further material for that purpose was therefore open to the Board.
4. The Board’s reasoning focused only on the release date and failed to consider the relevance of a current Security Service assessment to the onerous licence conditions that might govern the claimant’s life after release. That aspect of the decision was unlawful and had to be quashed.
5. Rather than remit the issue, the court directed the Board to request from the Security Service a current assessment of the security risk posed by the claimant, including any risk of terrorism-related activity on release. This was justified because the Board would have been bound to regard such information as necessary for the licence-condition decision, and a direct order was fairer and more expeditious under Civil Procedure Rules 1998, Part 1.1(2). The Security Service was to decide how to respond, and the Board was to decide how to use any information supplied.