Adrian Bailey (R on the application of) v The Secretary of State for Justice

Interim relief challenging amended parole rules requires a real prospect of obtaining final relief, followed by an assessment of the balance of convenience and the public interest. A rule-making power concerning Parole Board procedure may arguably be limited by the Board’s statutory duty to consider all evidence adduced before it. Guidance to witnesses must be read narrowly where it may restrict evidence before an independent judicial tribunal. Clear words would be expected before witnesses could be required to refuse relevant questions. Relief may properly be granted against guidance that appears to interfere with the Board’s independent control of its procedure, even where relief is refused against the underlying rules.

The claimant, a life prisoner awaiting an oral parole hearing, challenged amendments to the parole rules and related guidance issued to HMPPS staff. The amended rules removed recommendations about suitability for release from professional reports. The guidance additionally directed report writers not to give views or recommendations in oral evidence, including when questioned by the panel or the claimant’s representatives.

The claimant argued that the rules and guidance were ultra vires, incompatible with the fair-hearing guarantee in Article 5(4) of the European Convention on Human Rights 1950, an unlawful interference with the Parole Board’s independence, and otherwise unlawful. The application concerned interim relief pending determination of the substantive judicial review.

1. Interim relief test. The court applied the test stated in R (on the application of Hussain) v The Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin): the claimant had to show a real prospect of obtaining final relief, after which the court would assess the balance of convenience and the public interest. Because subordinate legislation was challenged, the public interest in maintaining apparently authentic procedures was significant.
2. Amended rules. The vires challenge was arguable because the rule-making power in section 239(5) of the Criminal Justice Act 2003 operated without prejudice to the Board’s duty under section 239(4) to consider all evidence adduced before it. The challenge based on legitimate expectation was also arguable for prisoners whose proceedings had already begun. The other grounds concerning consultation and irrationality added little. The public interest in allowing the new procedures to operate, and the risk of disrupting parole hearings, outweighed the claimant’s case, which was not particularly strong. Interim relief against the amended rules was therefore refused.
3. Guidance. The guidance was strongly arguable to exceed the amended rules, which did not expressly regulate oral answers by report writers. A procedural restriction affecting evidence before a judicial tribunal should be read narrowly. If the Secretary of State intended to prevent witnesses answering questions or to restrict the panel’s inquiries, clear words would be expected. The guidance appeared to give the Secretary of State control over evidence from his own witnesses and risked interfering with the Board’s independent statutory functions and the claimant’s right to a fair and impartial hearing under Article 5(4) of the European Convention on Human Rights 1950.
4. The balance of convenience strongly favoured granting interim relief against the guidance. Relief was accordingly refused in respect of the amended rules but granted in respect of the guidance. Permission to proceed was granted on all grounds, although grounds concerning consultation and irrationality were regarded as weak.

First-instance judicial review and interim-relief decision. No earlier decision in the same proceedings is stated.