Independence and Impartiality of Parole Board Insufficient for Fair Hearing

Brooke & Ors, R (on the application of) v The Parole Board & Anor [2008] EWCA Civ 29 (1 February 2008) The UK Court of Appeal has held that the Parole Board does not possess the necessary independence required by art 5(4) of the European Convention on Human Rights.  This decision may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’.

Background

On 7 September 2007, the Englandand Wales High Court declared that the Parole Board did not have ‘demonstrated objective independence of the executive and of the parties’ required under the European Convention on Human Rights.  The Secretary of State appealed the decision.  There were three individual respondents, all serving prison sentences.  They had been convicted of burglary, murder, and sexual assault respectively.  Each respondent's release depended upon the decision of the Parole Board.

Decision

The Court of Appeal analysed the nature of the Parole Board, tracing its gradual evolution from advisory body to 'court'.  Historically, the Board's role was to assist the Secretary of State in exercising discretion about the release of prisoners.  Today, 'there is no doubt that the major part of the Board's duties is judicial in nature.' [para 47]

In exercising its judicial functions, the Board must be (and be seen to be) independent and impartial.  This is a requirement under the common law and under art 5(4) of the European Convention (which provides that 'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.').

In determining whether there had been 'encroachments on the independence of the Board', the Court's approach was to survey key areas in which concerns had been raised, and appraise whether those concerns were warranted.

The Court of Appeal unanimously upheld theDivisional Court's finding that the Parole Board did not have the requisite independence from the Secretary of State.  It then turned to the question of remedies, and, in response to the Secretary of State's complaint that theDivisional Court's declaration was 'too uncertain', set out a series of comments regarding 'required action'.  The following is an overview of the key findings.

Directions

The Court held that '[t]he directions given by the Secretary of State were intended to go beyond mere guidance as to relevant matters to which the Board should have regards and direct the Board as to how it should carry out its judicial function of determining applications for release.' [para 60]  The Court confirmed its previous finding that the Secretary's recommendations should be confined to guidance on matters that the Board would otherwise be required to consider 'as a matter of law'. 

Appointment and Composition of Members

The Court made reference to a public speech in which the Secretary undertook to appoint a victim of crime or a person who had been involved with a victim support group to the Board, in order to inject a 'pro victim' angle into the Board's decision-making.  The Court held that the Secretary could appoint Board Members, provided the appointment criteria and process were transparent, and the Minister refrained from appointing lay members because they 'demonstrate qualities that are not relevant to the Board's functions but which are likely to affect the Board's decisions.' [para 84]

Tenure

Members of the Board were appointed for a period of three years, and the Secretary of State had the option of extending each term by a further three years (to a maximum of six years).  The Court held that this arrangement, of itself, did not compromise the independence of the Board.  On the other hand, the Secretary's broad powers to remove members from Board did undermine its independence.  The Court recommended (at minimum) '…the establishment of a procedure that ensures that a member's appointment is not terminated without good cause and subject to fair process.' [para 88]

Funding and Sponsorship

The Parole Board was previously sponsored by the Department of State, and, for the purposes of the Court of Appeal's decision, by the Ministry of Justice.  The Court of Appeal held that sponsorship, of itself, did not constitute an encroachment on the Board's independence.  However, the 'hands-on' approach of the sponsor was problematic.  For example, the Court of Appeal was concerned that the Department severely restricted the Board's opportunity to interview applicants for release (despite the fact that the Board found the interviews extremely valuable, and were provided for by legislation).  It was also concerned by the fact that the Secretary directed the Board to apply a different test in relation to risk than the test that was laid down by statute.

Implications for the Victorian Charter

The Court of Appeal's judgment in this case provides valuable, practical guidance about the circumstances in which a body exercising judicial functions will be considered insufficiently independent from the executive.

Questions concerning the independence of bodies exercising judicial functions are most likely to arise in the context of the right to fair hearing (s 24), and the right to liberty and security of person (s 21).  Section 21(7) of the Charter is equivalent to s 5(4) of the European Convention.  It provides as follows:

Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must –

(a)                  make a decision without delay; and

(b)                  order the release of the person if it finds that the detention is unlawful.

It is important to note that, unlike the United Kingdom's Human Rights Act 1998, the Charter provides that courts and tribunals are only public authorities when they are acting in an administrative capacity.  In addition, there are specific, transitional limits on the application of the Charter to Victoria's Parole Boards.  As reported in Edition 22 of the Bulletin, pursuant to the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 (Vic), the Adult Parole Board, the Youth Parole Board and the Youth Residential Board are not 'public authorities' for the purposes of the Charter.  These regulations will expire on 31 December 2008.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2008/29.html.

Jessica Moir is a member of the Allens Arthur Robinson Corporate Responsibility Group