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

A tribunal exercises the judicial power of the state where its statutory function is to make binding determinations affecting individual liberty, even if it is not part of the ordinary court system and is not bound by strict evidential rules.

A refusal by a witness who has a relevant view to answer a relevant and necessary question may constitute contempt, subject to privilege. The tribunal’s lack of power to compel attendance does not prevent this. Where a statutory tribunal has no express or implied power to punish contempt, alleged contempt must be addressed by the High Court under Civil Procedure Rules 1998, Part 81.

The claimants challenged rule 2(22) of the Parole Board Amendment Rules 2022 and guidance instructing HMPPS witnesses not to express views on a prisoner’s suitability for release or transfer to open conditions. In the first judgment, the Divisional Court held the rule and guidance unlawful.

By the further hearing, the rule had been superseded, the guidance withdrawn, and new rules made. The court therefore considered the appropriate declarations, costs and permission to appeal, together with whether refusal by a witness to answer a relevant question from the Parole Board could constitute contempt and how any contempt should be addressed.

1. Relief. Rule 2(22) of the Parole Board Amendment Rules 2022 had been superseded, so no quashing order was available. The appropriate relief was a declaration that the decision to make the rule was unlawful. Since the July and October Guidance had been withdrawn, declarations were also appropriate in respect of those documents. The lawfulness of the March 2023 Guidance was not determined, since deciding it would have required a further amendment and would have created an impermissible rolling judicial review: R (Dolan) v Secretary of State for Health [2020] EWCA Civ 1605.
2. Contempt for failure to answer. In proceedings to which the law of contempt applies, refusal to answer a relevant and necessary question constitutes contempt unless a recognised privilege applies. Relevance and necessity depend on whether the answer would serve a useful purpose in the proceedings. A witness cannot be required to express a view which they do not have, but a witness who has a view and refuses to give it may be in contempt.
3. Rule 24(7). Rule 24(7) of the Parole Board Rules 2019 must be read with rule 24(6). Together they disapply strict evidential rules, including the ordinary independence requirement for expert evidence, while preserving ordinary civil-proceedings privileges and immunities. Rule 24(7) did not protect HMPPS witnesses from giving ultimate-issue evidence.
4. Status of the Board. Applying the approach in Attorney General v BBC [1981] AC 303 and Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, the Parole Board exercises the judicial power of the state. It decides, by applying statutory criteria, whether a detained person should remain imprisoned or be released. Its lack of power to summon witnesses did not alter that conclusion. The Board was therefore a court for the purposes of contempt.
5. Power to punish. The Board was not a superior court of record, and neither its governing legislation nor its Rules conferred an express or implied power to punish contempt. Alleged contempt had therefore to be dealt with in the High Court under Civil Procedure Rules 1998, Part 81. Proceedings could be brought by a party or law officer with permission, or the Board could refer the matter to the High Court.
6. Further evidence. The court directed that the Secretary of State be given a further opportunity to provide evidence about the creation and approval of the guidance and subsequent remedial steps. The court would then decide under rule 81.6 whether contempt proceedings should be initiated.

First-instance judicial review proceedings. The court referred to its earlier judgment in the same litigation, [2023] EWHC 555 (Admin), in which it held the challenged rule and guidance unlawful.