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

The duty imposed by section 239(3) of the Criminal Justice Act 2003 requires the Parole Board, rather than the panel making the final release decision, to consider every document supplied by the Secretary of State. The Board may therefore arrange for prejudicial material to be withheld from the final panel where advance exclusion is necessary to avoid a real likelihood of bias.

This power will be needed only rarely. Ordinarily, the final panel should assess the relevance and weight of the evidence, including whether it should receive no weight. A prisoner seeking advance exclusion faces a considerable hurdle. Unless the apparent-bias test is satisfied, admissibility and weight should remain matters for the panel making the ultimate decision.

The appellant, an extended-sentence prisoner recalled after release on licence, sought judicial review concerning untried allegations included by the Secretary of State in his parole dossier. He contended that the Parole Board could determine at an interlocutory stage that such material should be withheld from the panel deciding whether to recommend his release.

The Divisional Court, in [2012] EWHC 882 (Admin), dismissed the claim. It held that section 239(3) of the Criminal Justice Act 2003 required the panel making the substantive recommendation to consider every document supplied by the Secretary of State, although it could give the evidence little or no weight.

The issue on appeal was whether section 239(3) permitted the Board to exclude documents from the dossier placed before the final panel, provided that another member or panel of the Board had considered them.

1. Appeal allowed to a limited extent. Section 239(3) of the Criminal Justice Act 2003 does not invariably require the panel deciding whether to recommend release to consider every document supplied to the Parole Board by the Secretary of State. Pill LJ gave the leading judgment. Toulson and Tomlinson LJJ agreed.

2. The statutory duty is imposed on the Board as a corporate statutory body, not on the particular panel making the final recommendation. It is satisfied where a member or members of the Board consider all documents supplied by the Secretary of State. The Board may then arrange for particular documents to be withheld from the final panel where that is necessary to preserve a fair and dispassionate decision.

3. The Parole Board exercises judicial responsibilities. Its independence must not be impaired by executive interference. Toulson LJ added that every judicial body has an inherent jurisdiction to establish procedures for dealing with cases justly. Judicial independence requires decisions to be made without actual bias or a reasonable perception of bias.

4. Only statute could compel a departure from that fundamental principle. Under the principle of legality, Parliament should not be taken to require decisions affecting liberty to be made by a tribunal exposed to an unacceptable risk of prejudice unless primary legislation permits no other interpretation. Section 239(3) was capable of an interpretation preserving the Board's procedural independence and should receive that interpretation.

5. Advance exclusion should be exceptional. The ordinary expectation is that an experienced parole panel can assess risk, sift the evidence and attach appropriate weight, including no weight, to unreliable or unfair material. It is unnecessary to require every dossier to undergo preliminary scrutiny by a legally qualified member.

6. An applicant seeking advance exclusion must show that, without it, there would be a real likelihood of bias under the apparent-bias principle in Porter v Magill. That is a considerable hurdle. Unless a genuine risk of prejudice satisfies that test, questions of admissibility and weight should be left to the panel making the ultimate decision.

7. The Court expressed no view on whether the disputed material in this case had to be excluded or whether the existing panel should recuse itself. Those procedural matters were for the Board. The panel was entitled to seek guidance after expressing unease about continuing with the material it had seen.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 182, unanimously allowed the appeal to the limited extent that section 239(3) of the Criminal Justice Act 2003 did not require the panel making the final decision always to consider every document supplied to the Parole Board by the Secretary of State.

2. High Court, Divisional Court (Administrative Court): In [2012] EWHC 882 (Admin), dismissed the judicial review claim. It held that the panel making the substantive recommendation had to consider all documents supplied by the Secretary of State, while retaining power to give them little or no weight.