The Secretary of State for Justice, R (on the application of) v The Parole Board for England and Wales

A court retains a discretion to determine an academic judicial review claim involving a public-law issue, but that discretion must be exercised cautiously. Exceptional circumstances are required. The existence of other similar cases and whether the issue is fact-sensitive are relevant considerations, but they are not exhaustive conditions. Sections 31(2A)–(2C) of the Senior Courts Act 1981 reinforce the need for restraint, particularly where no live issue remains and any relief would have no practical effect. Exceptional public interest must be demonstrated before the statutory restriction is disregarded, and the court must certify the reasons. A fact-specific ground should not be determined once the underlying dispute has become moot.

The Secretary of State sought judicial review of two rulings by a Duty Member of the Parole Board concerning disclosure of sensitive material to a Special Advocate. The material had been supplied to the Board but its relevance was disputed. The Duty Member directed disclosure so that the Special Advocate could make submissions on relevance, and later refused to revoke that direction.

By the time of the hearing, the interested party had completed his sentence, the material had been disclosed, and the Special Advocate had agreed that it was irrelevant. The Board had also determined the release issue on other material. The court therefore had to decide whether to determine the now-moot challenges, including an ultra vires argument concerning the Parole Board Rules 2019 and a fact-specific challenge to the exercise of discretion.

1. Application dismissed. The claim was entirely moot. The contested material had been disclosed, the interested party had completed his sentence, and no live issue remained for the Board or the court.
2. A court has a residual discretion to hear an academic judicial review claim involving public law, as recognised in R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450. The discretion must be exercised with caution and requires exceptional circumstances.
3. The factors identified in R (on the application of Zoolife International Ltd) v Secretary of State for Environment and Rural Affairs [2007] EWHC 2995 (Admin), including the existence or likelihood of similar cases and whether the issue is fact-sensitive, are relevant examples rather than an exhaustive code.
4. Section 31(2A) of the Senior Courts Act 1981 reinforces the caution required where the outcome for the applicant would not have been substantially different. Section 31(2B) permits departure from that restriction only for exceptional public interest, and section 31(2C) requires certification of the reasons.
5. Ground 2 could not properly be determined because it concerned the alleged failure to take account of material considerations and was fact-specific. Ground 1 concerned construction of the Rules, but the evidence showed that the case was unique, the factual context was unavailable because the material was sensitive, and determining the Rules in a vacuum would be unsafe.
6. The fact that the claim raised a discrete question of statutory construction was insufficient. No exceptional circumstances or exceptional public interest were demonstrated, and the court declined to resolve the substantive issues.

This was a first-instance judicial review claim in the Administrative Court. No prior appellate decision is stated in the judgment.