Adrian John Bailey & Anor., R (on the application of) v Secretary of State for Justice & Anor.

A court’s obligation to consider contempt proceedings arises whenever it considers that a contempt of court may have been committed. The obligation is not attenuated because Ministers or officials may be involved. A refusal by a witness to answer an oral question may constitute contempt where the question is relevant and necessary, the witness has a view to give, and no legally recognised privilege applies; a person instructing the refusal may also be liable. Proceedings need not be initiated where a formal, supported explanation establishes that the breach was not intentional and measures have been taken to prevent recurrence. The court must also consider whether proceedings would be in the public interest, having regard to the facts and the mental element required.

This was the third judgment arising from judicial review proceedings concerning rule 2(22) of the Parole Board (Amendment) Rules 2022 (SI 2022/717) and associated July and October guidance. In the first judgment, the Divisional Court held that the Secretary of State had acted unlawfully. In the second, it addressed ancillary issues, including contempt of court.

The present judgment considered further evidence from the Ministry of Justice about how the unlawful guidance had been drafted and promulgated, together with an internal email disclosed by the Parole Board. The central issue was whether contempt proceedings should be initiated against those involved.

1. The court reaffirmed that refusing to answer an oral question may amount to contempt where the question is relevant and necessary, the witness has a view to give, and the witness cannot rely on a legally recognised privilege. A person instructing the witness not to comply or answer may also be guilty of contempt.

2. Under CPR 81.6, the obligation to consider initiating contempt proceedings arises whenever the court considers that a contempt may have been committed. The involvement of Ministers or officials does not reduce that obligation.

3. Consistently with R (Mohammad) v Secretary of State for the Home Department, the court is not required to initiate proceedings where a formal explanation of the breach, supported by witness statements, has been provided; the breach is concluded not to have been intentional; and measures have been put in place to prevent recurrence. The court must also assess the public interest in proceeding.

4. The evidence gave a comprehensive explanation of the drafting and promulgation of the guidance. The Secretary of State had not approved either guidance document. The Ministry of Justice had revoked both documents, instructed staff to answer questions they were able to answer, apologised, and considered how to prevent repetition. The court accepted the evidence that the relevant officials had not intended to step outside a proper and lawful position.

5. Proceedings would involve difficult factual and legal questions concerning the mental element for this form of contempt. In light of the evidence and the public-interest assessment, the court decided that contempt proceedings should not be initiated. There was no further action in the case, although the witness statement and email were ordered to be made public as annexes.

This was the third judgment in the same judicial review proceedings.

• High Court (Administrative Court) — In the first judgment, the court held that the Secretary of State had acted unlawfully in making rule 2(22) of the Parole Board (Amendment) Rules 2022 and promulgating the July and October Guidance: [2023] EWHC 555 (Admin).
• High Court (Administrative Court) — In the second judgment, the court addressed ancillary issues, including the applicability of contempt law: [2023] EWHC 821 (Admin).
• Divisional Court of the High Court — The present court decided that no contempt proceedings should be initiated and that there would be no further action.