JD v Secretary of State for Justice

On a renewed application for judicial review, permission should be granted where a challenge to the termination of a public office-holder’s appointment is arguable because the decision-maker may have failed to explain why lesser sanctions were unavailable or inappropriate. Relevant considerations may include personal mitigation, the consequences of the alleged misconduct, the office-holder’s functions, and any material comparison with the later handling of the underlying case. Procedural fairness grounds require an arguable procedural defect. An internal disciplinary process is not required where the governing appointment protocol contains no such requirement, and a non-operative draft policy cannot create one. Permission at this stage does not indicate that the claim will ultimately succeed.

JD, a member of the Parole Board, challenged the Secretary of State’s decision to terminate her appointment following a Parole Board recommendation. The recommendation arose from her decision to direct the release of a prisoner on the mistaken basis that he had spent nearly two years on licence. The claimant’s permission application had been refused by a single judge, and she renewed it before Turner J.

She alleged procedural unfairness concerning internal resolution, particularisation and late disclosure. She also argued that termination was unreasonable because the incident was isolated, she had acted alone, and alternative sanctions had not been adequately considered. The issue was whether any of those grounds were arguable.

1. Permission granted in part. Permission was refused on all procedural unfairness grounds and granted only on the challenge to the reasonableness of the sanction.
2. The governing appointment protocol imposed no requirement that the Parole Board attempt local resolution or pursue an internal disciplinary process before referring the matter to a termination panel. A draft policy concerning breaches of conduct was not in force and, in any event, contemplated formal action for matters too serious to be minor. The alleged conduct could not properly be characterised as minor.
3. The referral sufficiently identified the central issue. The claimant had directed release on a seriously flawed factual basis, and the panel was entitled to disbelieve her explanation that a Parole Board policy required reliance on an inaccurate cover sheet. No further particularisation was necessary.
4. The late disclosure complaint was not arguable. The material was responsive to a lengthy witness statement served shortly beforehand, the claimant’s counsel had adequate time to consider it, and no complaint had been made at the hearing.
5. The sanction challenge was arguable. Although the conduct was capable of being characterised as gross negligence with potential consequences for public protection and confidence in the Parole Board, the panel’s reasoning was relatively sparse. It did not adequately address why sanctions short of termination were not considered or rejected, the claimant’s personal mitigation, or the fact that a later panel member also directed release after correction of the factual error.
6. The relevance of the distinct legal and procedural framework governing termination, including the quasi-judicial nature of Parole Board functions and the public-confidence implications of serious negligence, remained unresolved. Those issues required consideration at the substantive hearing. Granting permission did not imply optimism about the claim’s eventual success.

The claimant’s initial application for permission for judicial review was refused by a single judge. Turner J heard the renewed application and granted permission only on the final ground, refusing permission on the procedural unfairness grounds.