Jacki Duff, R (on the application of) v The Secretary of State for Justice

Judicial independence protects a judicial act done in good faith, even where the decision contains an error of judgment. It does not protect a failure to act judicially, such as failing properly to read and prepare the case papers before making a decision. A single instance of gross negligence by a Parole Board member may justify termination where the error risks eroding public confidence or bringing the Board into disrepute. The termination protocol did not require a panel to follow a staged sanctions process or to give express reasons for rejecting every lesser sanction. The court’s task on judicial review was to decide whether the Secretary of State’s decision was irrational, not to substitute an appellate assessment of the sanction.

The claimant was a member of the Parole Board whose appointment was terminated after she directed the release of a prisoner while mistakenly believing that he had spent nearly two years at liberty on licence. The termination panel found that she had not properly read the dossier, that the release decision was irrational and that the error amounted to gross negligence. It recommended termination, which the Secretary of State accepted.

Permission to bring judicial review proceedings was granted on one ground: whether acceptance of the recommendation was unreasonable because the matter arose from a single isolated incident and insufficient consideration was given to alternative sanctions. The central issues were the effect of judicial independence, the significance of the single error, and the adequacy of consideration given to lesser sanctions and mitigation.

1. Claim dismissed. The allegation concerned a failure to act judicially, rather than an erroneous judicial act performed in good faith. The claimant had failed properly to ascertain the facts by reading the dossier. Disciplinary action on that basis did not impermissibly interfere with judicial independence: paras [76]-[86].
2. The distinction identified in Durity v AG of Trinidad and Tobago was applicable. An honestly made error of judgment in performing a judicial function must not be treated as misconduct, but abuse of the judicial function or failure to act judicially may attract disciplinary measures. Examples may include failure to attend court or excessive delay in producing a judgment: paras [83]-[85].
3. The mistaken belief about the prisoner’s custodial history was an isolated error, but a single instance of gross negligence could justify termination. The panel was entitled to consider that the error risked undermining public confidence in the Parole Board’s ability to protect the public and bringing its work into disrepute: paras [88]-[90].
4. The panel was not required to set out a staged consideration of lesser sanctions. The termination protocol contained no equivalent of indicative sanctions guidance, imposed no prescribed sequence of reasoning, and left the panel in the position of recommending rather than deciding the sanction. Its brief reasoning adequately informed the claimant why termination was recommended: paras [89]-[94].
5. The panel and the Secretary of State were aware of the claimant’s mitigation, including her disability, stress, previous record and claimed learning. Those matters were not mandatory relevant considerations requiring separate treatment, and the court found no irrational failure to consider them: paras [91]-[94].
6. The panel’s covering note about the possible value of an early and frank dialogue did not contradict its recommendation. It concerned lessons for future cases and did not establish that termination was inappropriate in this case: paras [95]-[97]. The alternative issue under Senior Courts Act 1981, section 31(2A), therefore did not arise: para [98].

Permission was initially refused on the papers. Turner J granted permission after an oral renewal hearing, but only on the single ground considered in this judgment. The claim was dismissed by the Administrative Court.