Marie McCourt, R (on the application of) v Parole Board for England and Wales

An interim stay restraining a public authority from acting may be approached by applying the injunction principles in American Cyanamid, modified to reflect the public-law context. The court considers whether there is a serious issue to be tried, whether damages would be adequate for each party, and where the balance of convenience lies. Wider public interest and the consequences of interfering with release from detention are relevant. Each case turns on its facts. A potential later recall to custody may weigh against restraining a lawful release on licence. Disclosure in a judicial review challenge to a Parole Board decision is not automatic, but may be necessary in the public-law sense where the Parole Board’s duty of candour and the circumstances of the case require it.

The claimant, the mother of a murder victim whose body had not been recovered, urgently sought a stay preventing the release on licence of the second interested party. The Parole Board had directed release after reconsidering its earlier decision, and the Secretary of State was consequently subject to a statutory duty to release him. The claimant challenged the procedure followed by the Parole Board and alleged that its decision was Wednesbury unreasonable.

The application concerned interim relief only. The court also considered disclosure of Parole Board materials, counsel’s notes and the hearing transcript, together with consequential case-management directions.

1. Interim stay refused. The court approached the application under the principles applicable to an injunction restraining a public authority, because the parties agreed that this was the proper approach. The relevant considerations were whether there was a serious issue to be tried, whether damages would be an adequate remedy for the claimant, whether damages would be an adequate remedy for the prisoner, and where the balance of convenience lay.
2. The court was not able to assess the merits at this urgent interlocutory stage, and therefore proceeded on the basis that there was a serious issue to be tried. Damages would not adequately remedy either side. The wider public interest was relevant, as were the consequences of release from detention.
3. The court distinguished the circumstances from R (DSD & Anor) v The Parole Board of England and Wales. Although both cases concerned release following Parole Board consideration, the offences, periods of imprisonment, prison histories and matters considered by the Board differed. The possibility of recalling the prisoner to custody if the claimant later succeeded was also relevant. The prisoner had previously complied with temporary-release conditions and returned to custody.
4. Balancing the competing considerations, the least-worst option was to refuse a stay and avoid interfering with the release which was required by statute.
5. Disclosure granted. The court made no general rule that disclosure should follow every challenge to a Parole Board decision. On the facts, however, disclosure was necessary in the public-law sense, having regard to the Parole Board’s duty of candour and its proposed draft order. Disclosure was directed, subject to protective provisions, including counsel’s notes and the hearing transcript.
6. The claimant was to amend her statement of facts and grounds after disclosure. The defendant and interested parties could then provide summary grounds of response, after which the matter could be referred to a single judge on the papers for the permission decision and further case management, including expedition and any later costs-capping application.