R (EG) v The Parole Board

The court considered whether the Parole Board and Secretary of State for Justice had unlawfully failed to secure effective participation in the parole process for a recalled prisoner (EG) who lacked capacity. Central issues were the proper construction of Rule 10(6) of the Parole Board Rules 2019, the availability of a litigation friend or alternative representation mechanism, the scope of duties under the Equality Act 2010 and Article 5(4) ECHR (speedy review of detention). The court concluded that, properly read, the 2019 Rules permit the Parole Board to appoint a litigation friend (or otherwise secure appropriate representation) for a prisoner who lacks capacity, and that, on the facts, no finding of breach of the public sector equality duty would be made because that wider claim had not been pleaded or sufficiently particularised. The court found that EG had suffered an excessive delay in receiving a timely review under Article 5(4), but declined at this stage to determine final relief because causation as to whether the outcome would have been substantially different had the impugned conduct not occurred could not be established without further inquiry.

Background and parties: EG, a recalled prisoner with documented learning disabilities and incapacity to participate in his parole review, brought judicial review proceedings by his litigation friend, the Official Solicitor, against the Parole Board and the Secretary of State for Justice. The Equality and Human Rights Commission and The Law Society intervened. EG complained the Board and SSJ had failed to secure his effective participation and a timely review of his detention, raising issues under Article 5(4) ECHR and the Equality Act 2010.

Nature of relief sought: declaratory relief that EG had been denied effective participation and a speedy review; a mandatory order requiring a mechanism to enable participation; quashing of rule 10(6)(b); and damages as just satisfaction for delay/arbitrary detention.

Procedural posture: first instance judicial review in the Administrative Court (permission granted on paper). The case explored the operation of Parole Board Rules 2016 and 2019, the scope of Rule 10(6) of the 2019 Rules, the availability of a litigation friend and the role of the Official Solicitor, and issues under the Equality Act.

Issues for decision:

• Whether the Parole Board Rules 2019, in particular Rule 10(6), permit the appointment of a litigation friend for a prisoner who lacks capacity, or alternatively whether a solicitor may ethically and practically act in a dual capacity as a 'best interests' representative and legal advocate.
• Whether the defendants had breached duties under the Equality Act 2010 (including the duty to make reasonable adjustments and the public sector equality duty) and Article 14 ECHR by failing to secure a mechanism to enable participation.
• Whether there had been a breach of Article 5(4) ECHR in respect of delay in securing a speedy review of the lawfulness of EG's detention.

Court’s reasoning and findings: The court held that Rule 10(6) of the 2019 Rules, read in context and informed by the rule-making materials, is sufficiently apt to permit the Panel to appoint either a legal representative acting in the prisoner’s best interests or a litigation friend who can instruct lawyers. Even if the wording were ambiguous, the Rules must be interpreted compatibly with Convention rights to permit a litigation friend when necessary to secure a fair hearing. The court found the dual-role approach (solicitor acting as both best-interests representative and advocate) problematic in the absence of an accreditation, training and funding regime akin to the Mental Health Tribunal scheme; accordingly a litigation friend is required in many cases. The court declined to make any findings on the public sector equality duty because that wider claim had not been properly pleaded or particularised; it also found no breach of the reasonable adjustments duty in the narrow context of EG’s case because the Rules allow appointment of a litigation friend. On delay, the court found that EG had been deprived of a speedy review contrary to Article 5(4) given a delay of over two and a half years, but declined to order relief immediately because it could not conclude that it was highly likely that the outcome would have been substantially different absent the impugned conduct.

Claim allowed in part. The court held that the Parole Board Rules 2019 (Rule 10(6)) permit the appointment of a litigation friend (or other appropriate representative) to secure participation of a prisoner who lacks capacity; that a solicitor acting in a dual capacity is not an adequate substitute in the absence of an accreditation and training regime analogous to that applied in Mental Health Tribunal practice; the court did not make findings of breach of the public sector equality duty as that claim was not properly pleaded; the court found a breach of Article 5(4) ECHR due to excessive delay in securing a speedy review but reserved final relief because it could not be shown at this stage that the outcome would not have been substantially different.