Lee Hickman, R (on the application of) v The Parole Board for England and Wales

A judicial review claim which has become academic will generally be dismissed. The court should proceed only where there is a sufficient public-interest reason, exercised with caution. A point of general importance is not enough by itself. The court should consider whether the issue is discrete, likely to recur, and likely to require determination in a substantial number of cases. Fact-specific case-management decisions ordinarily have no wider impact. A challenge to a procedural rule may remain academic where the claimant seeks no relief affecting the operative decision or its consequences.

The claimant challenged case-management decisions made by the Parole Board concerning police evidence, closed material and a closed material procedure in the review of his recall to prison. He later added a challenge to the lawfulness of rule 17 of the Parole Board Rules 2019, contending that it was ultra vires and contrary to natural and open justice.

Before the hearing, the Board issued a provisional direction for the claimant’s release. The direction became final when the Secretary of State sought no reconsideration. The court therefore considered whether grounds 1, 2 and 4, and the rule 17 challenge, remained justiciable or should nevertheless be heard in the public interest.

1. Grounds 1, 2 and 4. These grounds were academic. They challenged fact- and context-specific case-management decisions concerning police witnesses and the gisting of closed material. Those decisions had been overtaken by later case-management decisions and had no wider impact.
2. Ground 6. The challenge to rule 17 had also become academic once the Board’s provisional direction for release became final. The pleaded relief did not challenge the claimant’s licence conditions, the Board’s final decision or any delay. A declaration concerning rule 17 or closed material procedures would therefore have no practical effect for the claimant.
3. The possibility of a future recall did not justify proceeding. Any future relevance of the closed reasons or material was uncertain, and any future procedural unfairness could be challenged in the proceedings arising from that future decision. The court could not now provide the disclosure which had been withheld during the earlier process.
4. The court declined to exercise its discretion to hear the academic rule 17 challenge. Closed material procedures were very rare before the Board, there were no current comparable cases, and the claimant’s case did not raise a discrete statutory question likely to affect a large number of cases. The circumstances were materially different from those in R(Gardner) v Secretary of State for Health and Social Care.
5. The argument based on natural justice and Al-Rawi did not justify permission. The court considered that the point was answered, directly or by strong implication, by R(Roberts) v Parole Board, which had subsequently been considered and explained without dissent in Al-Rawi.
6. Grounds 1, 2 and 4 were dismissed. Permission on ground 6 was refused.