Michael Chiswick, R (on the application of) v Secretary of State for Justice & Anor

Unlawful executive interference with the Parole Board’s judicial functions may vitiate an individual parole decision where it bears on and is relevant to the Board’s decision-making, or renders the procedure unfair.

The effect is not confined to cases where the outcome can be shown to have changed. It is sufficient that relevant and potentially valuable opinion evidence was suppressed, that the Board was prevented from conducting the procedure it had directed, or that the outcome might have been different. Section 31(2A) of the Senior Courts Act 1981 does not require refusal of relief where it is not highly likely that the outcome would have been substantially the same.

The claimant challenged the Parole Board’s decision refusing to direct his release. The decision followed an oral hearing at which prison and probation professionals had been directed to provide reports and evidence concerning risk and suitability for release.

The reports did not express views on suitability because of a rule and Guidance issued by the Justice Secretary. Those measures had been held unlawful in R (Bailey) v Secretary of State for Justice. The issue was whether that unlawfulness had a vitiating effect on the claimant’s parole decision, and what relief should follow.

1. Claim succeeded. The Parole Board’s decision dated 13 March 2023 was declared unlawful and quashed. The claim for damages was refused.
2. The court accepted and applied the analysis in Bailey. The Justice Secretary’s unlawful measures operated to suppress relevant opinion evidence which the Panel had directed in two reports and expected to receive at the oral hearing. This interfered seriously and unjustifiably with the Board’s judicial functions, procured breaches of witnesses’ legal obligations, and bore directly on the decision-making process.
3. The withheld views were a valuable part of the evidential matrix. No effective arrangement had remedied their absence. The Panel had placed great weight on the professional evidence it received, but had not received the witnesses’ current views on suitability for release. The evidence indicated that those views might have favoured release. The outcome therefore might have been different.
4. The same conclusion followed independently from procedural fairness. The relevant question was whether the Bailey unlawfulness was operative, in the sense of bearing on and being relevant to the Panel’s decision-making. Alternatively, the question was whether it rendered the procedure procedurally unfair.
5. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of relief. It was not highly likely that the outcome would not have been substantially different. The provision did not prevent a finding of unlawfulness or appropriate vindication.
6. An alternative remedy, delay and academicity did not justify refusing relief. A declaration and quashing order were appropriate. No damages were awarded because the claimant had not provided sufficient evidence or authority to establish entitlement to just satisfaction.
7. The First Defendant was ordered to pay the claimant’s reasonable costs, with a payment on account under CPR r 44.2(8) of 60 per cent of a professionally drawn schedule.

Not stated in the judgment.