Parole: Law, Policy and Practice
I spoke today at a conference on Parole: Law, Policy and Practice, organised by the Cambridge Centre for Criminal Justice, at which I commented on the recent decision of the Divisional Court in R (DSD and NBV) v The Parole Board  EWHC 694 (Admin).
This was a judicial review of the Board’s decision to direct the release of John Radford, more commonly known as John Worboys. Radford was convicted in 2009 of 19 sexual offences against 12 victims.
At the time of the offending, he drove a black cab in London. His modus operandi was to convince his victims to drink champagne which he had previously spiked with sedatives before sexually assaulting them. There are, allegedly, many more than 12 victims — perhaps dozens more. When news of the Board’s decision to direct Radford’s release became public there was a media and political storm. Indeed, it had been suggested that the government would bring judicial review proceedings against the Board, though it ultimately declined to do so.
In the event, two of Radford’s victims sought judicial review of the decision, as did the Mayor of London; and issue was also taken, principally by media organisations, with delegated legislation providing that proceedings before the Board “must not be made public”. This was the very first occasion on which a direction by the Board to release a prisoner was judicially reviewed. The claims were successful, Radford has been returned to custody, and the chair of the Board was forced to resign.
The Divisional Court’s decision to quash the confidentiality rule and the Board’s direction thus raises several general issues of public law and practice, relating to (1) the confidentiality of administrative proceedings, (2) standing, (3) rationality and (4) administrative independence.
The common law has always been suspicious of generalisations and (at the risk of generalising) in an era dominated by proportionality review, with its focus on narrow tailoring and balancing, blanket bans are unlikely to survive scrutiny in the courts (at para. 192).
Interestingly, the Minister protested that the claimants were out of time to challenge the rule. His protestations were not heeded by the court, which accepted that there is “a distinction between cases where the challenge is to a decision taken pursuant to secondary legislation, where the ground to bring the claim first arises when the individual or entity with standing to do so is affected by it, and where the challenge is to secondary legislation in the abstract” (at para. 167).
The claimants argued that the “open justice” principle, which applies uncontroversially (subject to legislative limitations) to courts, applies to the Board. This principle is said to have four aspects: an obligation to hold open hearings; an obligation to permit reporting on proceedings; an obligation to put decisions in the public domain; and an obligation to ensure that information before the decision-maker is presumptively available to the public (at para. 170). It was also argued that the blanket ban interfered with the victims’ right of access to the courts, by depriving them of the information necessary to ground a judicial review claim.
Taking the view that “Adjudications upon matters of individual liberty are paradigm examples of the exercise of a judicial function” (at para. 171), the court concluded that the open justice principle “may well require some information about proceedings which are quite properly taking place in private being put into the public domain, depending on all the circumstances” (at para. 175) and saw “no obvious reasons” why the principle should not apply to the Board (at para. 176), “or more particularly the right of the public to receive information which flows from the operation of that principle” (at para. 177). The court also held that “an inseparable part or corollary of the victims’ right of access to the court entitles them to be given some information about the substance of the release decision” (at para. 187, emphasis added).
These are extremely modest conclusions. The court accepted that the open justice principle does not apply with full force and effect. And surely it must not, for otherwise hearings of the Board would be open to the public and its reasons would have to be made publicly available in all instances. And the court also accepted that the right of access to a court does not have as a corollary a right to receive reasons for any administrative decision one wishes to challenge. But both of these principles apply with some force and effect, which was enough in this case, because the blanket ban disapplied both principles in their entirety (at para. 186). It went too far (at para. 198), failing by virtue of its blanket nature, the test of necessity:
In our judgment, the Rule clearly does go too far. There is no objective necessity for a rule which stifles the provision of all information relating to the proceedings of the Parole Board, regardless of the justified public interest in any particular set of proceedings and of the fact that not all information needs to be safeguarded. These obvious propositions are vouched by a brief examination of the earlier versions of the Parole Board Rules containing discretionary language, the position which currently obtains in Scotland, the position in relation to Mental Health Review tribunals, and the view of the Chairman of the Parole Board that greater transparency is desirable, and by implication, achievable (at para. 199).
The conclusion was that the Rule was ultra vires the enabling statute (s. 239(5) of the Criminal Justice Act 2003). Given the reasoning that led to the conclusion, there remains scope for the Board to restrict access to information about its proceedings, though it is worth noting that both the Board and the government are in favour of giving much broader access to the reasons for Board decisions.
The contemporary attitude of the courts towards individuals’ standing to bring judicial review claims was best expressed by Lord Diplock in the ‘Fleet Street Casuals’ case:
It would, in my view, be a grave lacuna in our system of public law if a pressure group…or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.
R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd  AC 617, at p. 644.
It is worth noting that the result in the ‘Fleet Street Casuals’ case did not match the rhetoric: the pressure group did not have standing to challenge the legality of an agreement negotiated between the tax authorities and individual taxpayers. The courts apply a contextual analysis to standing claims. For instance, in the context of tendering, standing is generally restricted to “economic operators” (R (Chandler) v Secretary of State  EWCA Civ 1011, at paras. 77-78). In Wylde v Waverley Borough Council  EWHC 466 (Admin.), a group of claimants (a preservation organisation) interested in development in the respondent borough, were “not remotely approximate to any economic operator, nor could they begin to demonstrate any interest in the procurement process which might be akin to or a proxy for status as an economic operator” (at para. 45) and thus had no standing.
Here, although the Mayor of London undoubtedly had a sincere interest in the case, given the fact that Radford’s crimes had been committed whilst he operated one of London’s famous black cabs, he was nonetheless a stranger to the process and not entitled in his own name to bring a judicial review claim:
The panoply of functions to which [the Mayor] has drawn to our attention is very general in scope, and does not relate in any respect, even indirectly, to the workings of the Parole Board or to its decisions in any particular case. The same would apply to sentencing decisions given in the criminal courts. The Mayor is, of course, entitled to comment on Parole Board decisions, and any concerns he might express would attract public attention, but, in our view, he is in no different position from any other politician or, indeed, any member of the public (at para. 109).
In the court’s view, it was also significant that there were “obviously better-placed challengers” (at para. 110). The implication is that had the victims been unwilling to pursue a judicial review claim the Mayor might have had standing after all. This is not self-evidently correct, for several reasons. First, from the perspective of an individual whose release has been directed by the Board, it suggests that the more high-profile their case, the greater the likelihood that a stranger to the process will be able to initiate judicial review proceedings to have the decision quashed. This seems rather arbitrary, especially in light of the liberty interests at stake. Second, and perhaps more significantly, from the perspective of a victim of crime, it might be quite distressing to have a decision of the Board challenged in judicial review proceedings, because of the accompanying publicity — a victim who has consciously chosen not to initiate judicial review proceedings for fear of reopening old wounds might find those wounds being reopened on his or her behalf.
The court even had reservations (at paras. 113-114) about the victims bringing judicial review proceedings. The difficulty here lies in drawing the line between bringing genuine issues of unlawfulness before the courts and inappropriately interfering in a relationship between a government agency and a third party. On the one hand, victims of crime will sometimes have a legitimate interest, based on their past history and possible future interactions with the parolee, in ensuring that the Board’s decisions are lawfully and rationally made. On the other hand, the Board’s concern is with the future, not the past, and the victims do not have an individualised interest (any more than the Mayor of London or any other member of the public) in the Board’s decisions, which turn on the risk of future harm.
There may be cases in which a grave illegality engaging the public interest is alleged to have tainted a decision of the Board, where standing could be readily granted. However, most challenges by victims will turn, as this one did, on whether the decision was made rationally. Such challenges involve, as we will see, judicial oversight of the difficult judgement calls the Board has to make when determining whether or not to direct release. As a matter of the law of standing, this is much closer to inappropriate interference with the interests of third parties than public-spirited litigation in the common interest. The court’s reservations are entirely understandable. Although here no issue was taken with the standing of the victims (at para. 113), one expects that issue could well be taken in future cases involving the Board.
(3) Wednesbury Unreasonableness
Prior to reaching its decision, the Board had held an oral hearing, at which Radford and various experts familiar with Radford’s dossier gave evidence. The key problem identified by the court was that Radford may well have provided a “carefully calibrated account” which was not “entirely open and forthcoming” (at para. 127), especially about the scale of his past offending. The difficulty was the existence of “references in the dossier to other matters which, had the Parole Board wished to enquire further, would have revealed other material which could be considered to be relevant to the credibility of Mr Radford’s recent accounts of his criminality and thus the risk which he could continue to pose” (at para. 49).
That the decision was based entirely on what Radford had to say about the offences for which he was convicted called the reasonableness of the release decision into question:
…there are a number of striking features of Mr Radford’s case which give rise to concern. His change of position was a dramatic volte face which came after at least six years of his adamantly maintaining his innocence and attempting to secure his release through the court system and the CCRC. There are numerous references in the dossier to the actuality or possibility of impression management, a suggested character trait which chimes rather too uncomfortably with the manner in which Mr Radford must have secured the trust of his passengers from the front seat of his taxi. The possibility that he was not being open and honest with the professionals and the Panel itself fell to be considered. With respect, it does not seem to us that this possibility was thoroughly probed by the independent psychologists, two of whom had been instructed by Mr Radford and the third had previously been instructed by him, or by the panel of the Parole Board itself (at paras. 124-125).
Despite these concerns, the decision itself was not unreasonable per se (at para. 130), essentially because “a risk assessment in a complex case such as this is multi-factorial, multi-dimensional and at the end of the day quintessentially a matter of judgment for the panel itself” (at para. 133).
Nonetheless, the Board had conducted itself unreasonably. To begin with, in a robust rejoinder to the argument that the Board is not permitted to take potential additional offences into account (at para. 146), the court held “there is no implied limitation on the nature or temporal character of the information the Parole Board may take into account in assessing risk…” (at para. 154) There were seven reasons, such as the references in the dossier to numerous other victims and Radford’s sudden change of position in relation to his past offending which, “advanced cumulatively” (at para. 159), gave rise to concerns about Radford’s sincerity. It was thus unreasonable not to undertake “some basic lines of inquiry” (at para. 160) which would have “would have provided a sound platform for testing and probing Mr Radford’s account, either at a pre-hearing interview by a member of the panel or at the hearing itself” (at para. 161).
There are several difficulties with this line of reasoning. First, in all cases it will be at least possibly relevant to have regard to possible past offending, with a view to assessing future risk. This is tenable as a proposition of logic, but it has the potential to warp the posture of the Board, whose function is not to inquire into past bad behaviour. Second, the past bad behaviour in question is behaviour for which Radford was not convicted. Indeed, this will undoubtedly arise in other areas where convictions are difficult to achieve. Decisions on individual liberty should not turn on unproven allegations of past conduct (see the troubling reference to the settled civil suits at para. 160).
On these points, it should be noted that the Divisional Court considered that its hands were tied by the decision in R (McGetrick) v Parole Board  1 WLR 2064 but the implications are nonetheless troubling. In this case, Radford would have been placed in a very difficult situation had the Board inquired into his past offences: admitting the offences would have caused him to incriminate himself; denying them would have cast doubt on the sincerity of his account. At the very least, imposing procedural safeguards would have to be imposed before the Board could undertake such inquiries, with significant cost and efficiency implications.
Third, and most importantly, it is difficult to maintain, on the one hand, that the decision itself was not unreasonable because it was a paradigmatic judgement call for the Board but that, on the other hand the failure to pursue further lines of questioning was unreasonable. Both issues fall equally within the competence and expertise of the Board and are quite unsuited to second guessing by the judiciary. In particular, when the Board makes a judgement call that its role is not to inquire into unproven allegations of criminal behaviour, a court should be loath to qualify it as unreasonable.
Overall, the risk is that the Board, aware that its failure to pursue lines of inquiry in Radford’s case made its decision unlawful, will err in future cases on the side of conducting wide-ranging reviews of alleged criminal activity, diverting it from its role of assessing future risk (Crime (Sentences) Act 1997, s. 28(6)(b)) and requiring it to ramp up its procedural protections considerably in hard cases.
In the wake of the Divisional Court’s decision, the chair of the Parole Board, Professor Nick Hardwick, resigned. He had been told by the Secretary of State for Justice that his position was “untenable“.
This in my view was quite wrong. What was the chair to have done? It would have been entirely improper — indeed, unlawful because procedurally improper — for him to have given directions to the three-member panel that heard the Radford case. It would have compromised the adjudicative independence of Board members who were exercising a judicial function, a grave procedural impropriety.
Indeed, even if the chair could have directed the members of the panel, what direction could he have given? That the Board was to depart from its established practice of not inquiring into past offending? The chair would have had to have known in advance how the Divisional Court would rule, in hotly contested litigation, in order to give any direction. Of course, this was impossible.
Instead of providing the baying mob with a head, the Secretary of State would have been better advised to educate the public about the parole process and the importance of independent adjudication by expert administrative bodies. This was a teachable moment; it is a pity it was not turned to pedagogical purposes.
This content has been updated on July 2, 2018 at 15:55.