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

A Parole Board panel considering material withheld from a prisoner must assess whether non-disclosure can be mitigated, including by disclosure of separable parts or the gist, or by excluding the material. The panel must balance public protection, the victim’s interests and the prisoner’s ability to answer evidence bearing on continued detention. A failure to undertake that exercise may render the procedure unlawful and vitiate the resulting decision. Very late disclosure by the Secretary of State may create the procedural difficulty and should comply with applicable guidance and directions.

The claimant, serving an imprisonment for public protection sentence, challenged the Parole Board’s refusal to direct his release or recommend transfer to open conditions. The challenge concerned a victim personal statement containing allegations beyond the index offences. The statement was supplied to the panel only on the morning of the hearing, withheld from the claimant, and disclosed to his solicitor subject to an undertaking.

The claimant argued that the panel had failed to address the consequences of non-disclosure. Permission was granted on all grounds, with the procedural ground identified as arguable. The Parole Board conceded that the panel had erred in its handling of the statement.

1. Outcome. The judicial review was allowed. The Parole Board’s decision of 7 February 2011, refusing release and any recommendation for transfer to open conditions, was quashed and the matters were remitted to the Board for reconsideration.
2. The Parole Board may, in an appropriate case, withhold material from a prisoner and, potentially, from the prisoner’s legal representative. Whether withholding is lawful is fact-specific and requires consideration of the proceedings as a whole, including the prisoner’s ability effectively to test or challenge evidence relevant to continued detention, applying R v (Roberts) v Parole Board [2005] UKHL 45.
3. Where material is withheld, the panel must consider whether the resulting disadvantage can be mitigated. Possible measures include disclosure of material that can safely be disclosed, disclosure of the gist, or proceeding without taking the material into account. That balancing exercise must address the public interest in risk assessment, the victim’s interests and the prisoner’s ability to respond.
4. The panel had properly recognised the need to consider disclosure, but there was no evidence that the chair undertook the further mitigation exercise. Disclosure to the claimant’s solicitor, without more, did not cure the defect. The claimant’s representative’s failure to seek an adjournment did not waive the procedural unfairness.
5. The immediate difficulty arose from the Secretary of State’s very late production of the victim personal statement. Timely production in accordance with the Secretary of State’s guidance and directions was required.

This was a first-instance judicial review. The claim challenged the Parole Board’s decision of 7 February 2011, accepted by the Secretary of State on 7 March 2011. Permission to proceed was granted by His Honour Judge Behrens on 15 June 2011.