EG, R (On the Application Of) v The Parole Board of England and Wales

Parole arrangements must provide an effective means for a prisoner who lacks capacity to participate in the review of continued detention. The Parole Board Rules 2019 permit the appointment of a litigation friend where necessary to secure a fair hearing. A solicitor cannot safely perform both the litigation-friend and legal-representative roles without safeguards comparable to those operating in the Mental Health Tribunal. The court must interpret subordinate legislation compatibly with Convention rights where possible. A delay exceeding two and a half years in reviewing detention breached Article 5(4), and the court could not conclude that the outcome would highly likely have been substantially the same for the purposes of section 31(2A) of the Senior Courts Act 1981.

EG, a recalled prisoner serving an extended sentence, had learning difficulties and was assessed as lacking capacity to participate in his parole review. The Parole Board had directed an oral hearing, but the hearing had not taken place because no effective arrangement had been made for his representation. Judicial review proceedings challenged the failure to provide a mechanism for his participation and the delay in reviewing the lawfulness of his continued detention.

The issues were whether the Parole Board Rules 2019 authorised the appointment of a litigation friend, whether a solicitor could act in a dual capacity, and whether the delay breached Article 5(4) of the Convention.

1. Representation. The claim concerning the mechanism for effective participation succeeded to the extent that the court held that rule 10(6) of the Parole Board Rules 2019 permits the panel to appoint either a suitable person, including a litigation friend, or a solicitor or other representative able to act in the prisoner’s best interests. The words “other representative” were sufficiently broad to include a litigation friend.
2. A solicitor acting in a dual capacity could not ensure effective participation without safeguards equivalent to those in the Mental Health Tribunal, including appropriate training, experience and accreditation. A litigation friend was therefore required in EG’s case unless a suitable accredited mechanism became available.
3. If rule 10(6) were not sufficient, it had to be interpreted compatibly with Convention rights under section 3(1) of the Human Rights Act 1998. Alternatively, the Board’s general power under rule 6 to make necessary directions enabled it to appoint a litigation friend. The same conclusion applied under the Parole Board Rules 2016.
4. The wider claims concerning the public sector equality duty and reasonable adjustments were not determined because they had not been properly pleaded. The court emphasised that a reasonable-adjustments claim must identify the relevant provision, criterion or practice for each defendant and indicate the adjustments said to be required.
5. There had been an Article 5(4) breach. A delay of more than two and a half years was not speedy, even in a complex case. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of relief because the court could not find it highly likely that the outcome would have been substantially the same without the defendants’ errors, including the Board’s mistaken view of its power and the defendants’ position on dual representation.
6. The court deferred determination of the appropriate relief.

First-instance judicial review in the Administrative Court. No earlier judgment was identified in the supplied text.