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

The Secretary of State may make procedural rules for Parole Board proceedings, but may not use that power to interfere with the Board’s judicial functions or to influence the substance of evidence given by professional witnesses. A rule prohibiting views on release in the referral dossier was construed narrowly. It did not restrict later Board directions or questions at oral hearings. The rule-making decision was nevertheless unlawful because an improper purpose was pursued and no rational justification had been considered for the rule on its narrow construction. Guidance which misstated the rule, discouraged honest professional evidence, or suggested that Board directions need not be obeyed was also unlawful.

The claimants were prisoners serving indeterminate sentences whose cases were before the Parole Board. They challenged rule 2(22) of the Parole Board (Amendment) Rules 2022, which prohibited HMPPS report writers from expressing views or recommendations on suitability for release or transfer to open conditions and permitted a single Secretary of State view.

They also challenged July and October guidance issued to HMPPS staff, together with the absence of consultation and the rule’s application to ongoing cases. The central issues were the proper construction of rule 2(22), the extent of the Secretary of State’s rule-making power, the requirements of judicial independence and Article 5 ECHR, and the lawfulness of the guidance.

1. Construction. Rule 2(22) applied only to the reports forming part of the referral dossier which the Secretary of State was required to serve under rule 16(3). It did not apply to reports later requested or directed by the Board. Nor did it restrict the Board’s power to ask relevant questions at an oral hearing or the witness’s legal obligation to answer them.
2. Statutory power and Convention compatibility. On that narrow construction, section 239(5) of the Criminal Justice Act 2003, read compatibly with the common law principle of separation of powers and Articles 5(1) and 5(4) ECHR, was broad enough to authorise the result achieved. The rule therefore was not ultra vires on the pure result-based challenge.
3. Improper purpose. A principal purpose of the decision was to suppress, or enable the suppression of, relevant professional opinion which conflicted with a single Secretary of State view. That was an improper purpose and an impermissible attempt by a party to judicial proceedings to influence evidence given by witnesses employed or engaged by him. The fact that the drafting did not achieve the intended effect did not make the decision lawful.
4. Rationality. The Secretary of State had not considered whether a prohibition limited to referral reports was justified. The reasons advanced depended on a wider prohibition which did not exist. They therefore did not rationally justify the rule as properly construed. Grounds 1 and 6 succeeded; ground 2 failed.
5. Professional evidence. A professional witness may properly limit evidence to matters within their expertise. But where the witness has an opinion on the ultimate issue and the Board asks for it, the witness must give an honest professional opinion. The Board must not delegate its decision, but expert evidence on an ultimate issue is not inadmissible merely because it addresses that issue.
6. Guidance. The July Guidance was unlawful because it misstated the scope of rule 2(22), purported to prohibit answers at oral hearings, required witnesses not to speak against a Secretary of State view, and prescribed language which interfered with the Board’s evidential functions. The October Guidance was also unlawful. Its caveat about lawful directions did not cure its misleading overall effect, particularly because it failed to explain that directions must be obeyed unless set aside or varied.
7. Consultation and relief. There was no statutory duty to consult and no sufficiently consistent practice creating a common-law obligation. Ground 5 failed. Ground 3 fell away. Grounds 1, 4 and 6 succeeded, grounds 2 and 5 failed, and further submissions were directed on the appropriate relief and on contempt-related questions.

First-instance judicial review proceedings. The judgment records interim relief granted by HHJ Bird in the first claimant’s case and an undertaking given in the second claimant’s case, but no appealed decision.