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Roberts (FC) (Appellant) v Parole Board (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Roberts (FC) (Appellant)
Parole Board (Respondents)
THURSDAY 7 JULY 2005
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Tim Owen QC
(instructed by Bhatt Murphy)
(instructed by Treasury Solicitor)
The Secretary of State for the Home Department
(Instructed by Treasury Solicitor)
Keir Starmar QC
(Instructed by Justice)
Hearing dates: 20 and 21 April 2005
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Roberts (FC) (Appellant) v. Parole Board (Respondents)
 UKHL 45
LORD BINGHAM OF CORNHILL
1. On 12 December 1966 the appellant, Mr Harry Roberts, was convicted on three counts of murder, having pleaded guilty to two counts and been convicted of the third. The victims in each case were police officers, killed in cold blood at Shepherd's Bush in August 1966 when, in the course of their duty, they stopped a car in which the appellant and two accomplices were travelling to commit an armed robbery. The trial judge rightly described these crimes, which aroused widespread public outrage, as heinous and suggested that the case was one in which the appellant might never be released. He formally recommended that the appellant serve a term of at least 30 years, and in due course the Home Secretary of the day fixed 30 years as the appellant's punitive or tariff term. That term expired in 1996, when the appellant was aged 60. The fifth review of his case by the Parole Board, still current, began in September 2001, and this appeal concerns the procedure to be followed in that review. The issue to be determined by the House is agreed to be whether the Parole Board, a statutory tribunal of limited jurisdiction, is able, within the powers granted by the Criminal Justice Act 1991, and compatibly with article 5 of the European Convention on Human Rights (a) to withhold material relevant to the appellant's parole review from the appellant's legal representatives and (b) instead, to disclose that material to a specially appointed advocate, who would represent the appellant, in the absence of the appellant and his legal representatives, at a closed hearing before the Parole Board.
2. Since the House is called upon to decide issues of statutory construction and legal principle, the detailed facts of the appellant's case are of minor importance. In 2000, pursuant to a recommendation of the Parole Board in December 1999, the appellant was transferred to an open prison where he was held when the current Parole Board review began in September 2001. On 1 October 2001 a parole dossier was disclosed to the appellant's solicitors containing a number of reports, all favourable to the appellant and recommending his immediate release on life licence. However, on 2 October 2001 the appellant was removed from open to closed conditions, where he has since remained. The appellant has received a general indication of the allegations against him which led to his removal, but these have not been the subject of any criminal or disciplinary charge, they have not been investigated at any adversarial hearing and they have been consistently challenged by the appellant.
3. On 11 February 2002 the Secretary of State for the Home Department, who appears in this appeal as an interested party, disclosed to the appellant further material that had been submitted by him to the Parole Board for purposes of the parole review. The material related to alleged breaches of trust committed by the appellant while held in open conditions. The appellant was notified on 22 April 2002 that further material was to be withheld from both him and his legal representatives, but would be submitted to the Parole Board (henceforward "the Board") for its consideration. It is the treatment of this further material, conveniently described as "the sensitive material", which gives rise to this appeal. The ground upon which the sensitive material has been withheld is that the safety of the source of the information or evidence would be at risk if the material were to be disclosed. It has not been suggested that there is in this case any threat to national security.
4. In August 2002 the appellant applied for judicial review of the Secretary of State's decision to withhold from the appellant and his legal representatives material which would be considered by the Board. These proceedings were compromised in October 2002 when it was, in effect, agreed that issues of disclosure should be resolved by the Board and the possible appointment of a specially appointed advocate was envisaged.
5. On 15 November 2002 Scott Baker LJ, as vice-chairman of the Board, decided that before a decision was made on the procedure to be adopted in respect of the sensitive material at the substantive hearing before the Board, that material should in the first instance be disclosed to a specially appointed advocate agreeable to both parties, who could then make representations on the disclosure issues. The sensitive material was not to be disclosed to the appellant or his legal representatives or anyone else without the consent of the Board. Scott Baker LJ proposed that a hearing should then take place to resolve the disclosure issues. He acknowledged that the procedure for appointing special advocates was statutory in other fields but he could see no reason why it should not be used in the present circumstances.
6. With the agreement of the appellant and the Secretary of State, the Attorney General appointed Mr Nicholas Blake QC to act as "independent counsel", in effect as a special advocate. In an advice written for the Board before seeing the sensitive material Mr Blake advised that resort to the special advocate procedure infringed ordinary standards of fairness. After seeing the sensitive material he submitted to the Board that it be disclosed to the appellant's solicitor.
7. On 9 May 2003 a hearing took place before Sir Richard Tucker as chairman of the Board's mandatory lifer panel. The appellant and the Secretary of State were represented, and Mr Blake attended. The hearing consisted of an open session when the appellant's solicitor made representations on his behalf, and a closed session when submissions were made about the sensitive material by the Secretary of State's counsel and Mr Blake, in the absence of the appellant and his solicitor. A decision was made by Sir Richard the same day, but complaints about the conduct of the hearing led to a further hearing attended by counsel for the appellant and the Secretary of State on 30 May 2003. In a detailed letter dated 13 June 2003 the Board communicated its decision, which was that the sensitive material should not be disclosed to the appellant or his legal representatives, but should be disclosed to the specially appointed advocate. The Board directed that there should be a two-stage hearing, one considering the open material and the other the sensitive material, the specially appointed advocate appearing at both stages.
8. The judicial review proceedings giving rise to this appeal were initiated to challenge this decision of 13 June. It was agreed that the judge (Maurice Kay J) should read the sensitive material and hear submissions on it in closed session by counsel for the Board and the Secretary of State, and by Mr Blake. There was again a two-stage hearing, one addressed by counsel for the appellant and the other, in the absence of the appellant and his counsel, directed to the sensitive material. The judge delivered two judgments on 19 December 2003. In the first, open, judgment he upheld the lawfulness of the proposed procedure and dismissed the appellant's application:  EWHC 3120 (Admin),  2 All ER 776. The second was a closed judgment, not disclosed to the appellant or his legal representatives, but disclosed to Mr Blake who advised the appellant that there was no basis for challenging the findings in the closed judgment on appeal.
9. The appellant challenged the lawfulness of the proposed procedure in principle on appeal to the Court of Appeal. It was agreed between the parties that this challenge did not call for disclosure of the sensitive material to the Court of Appeal, and that material was not placed before the court. For reasons given by Tuckey LJ, with which Clarke LJ and Jackson J agreed, the Court of Appeal dismissed the appellant's appeal:  EWCA Civ 1031,  QB 410.
10. The House had the benefit of submissions on behalf of the appellant, the Board and the Secretary of State, and also on behalf of JUSTICE which was granted leave to intervene. It received no submissions by Mr Blake or any specially appointed advocate, and did not read or receive submissions on the sensitive material.
11. As a mandatory life sentence prisoner who has served the punitive or tariff term imposed upon him, the appellant has two important rights: a right to be released if and when it is judged that he can safely be released without significant risk to the safety of the public; and a right "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". The first of these rights is a product of domestic law, which now provides for the imposition of a punitive or tariff term of imprisonment on convicted murderers, on completion of which (as is now accepted by the Board and the Secretary of State: Girling v Parole Board  EWHC 5469 (Admin), 8 April 2005, para 19) risk to life and limb provides the sole ground for continued detention: R v Lichniak  UKHL 47,  1 AC 903, paras 8, 29. The second right derives from article 5(4) of the European Convention, which I have quoted above and to which domestic law seeks to give effect. Thus a tariff-expired mandatory life sentence prisoner such as the appellant has a right to bring proceedings to challenge the lawfulness of his continued detention and a right to be released, no matter what the enormity of the crime or crimes for which he was imprisoned, if he is judged to present no continuing threat to the safety of the public.
12. Whether or not it is safe to release a prisoner such as the appellant cannot be ascertained with scientific accuracy. It calls for an exercise of informed and experienced judgment. Under our domestic law, that judgment is entrusted to the Board, which has authority under section 28(5) of the Crime (Sentences) Act 1997 as amended to direct the release of a tariff-expired mandatory life sentence prisoner, but may not do so unless (section 28(6)(b)) it is "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
13. The Board is not in any ordinary sense a court. But it is accepted as being a court for purposes of article 5(4) because, and so long as, it has the essential attributes of a court in performing the function of directing release and other functions not in issue in this appeal. Thus it is independent of the Secretary of State, and the Prison Service and the prisoner: Weeks v United Kingdom (1987) 10 EHRR 293, para 62. It is impartial (Weeks, para 62), in the sense that it decides cases on the material before it without any prejudice or predilection against or for any party. In cases such as the appellant's oral hearings are now routinely held. The Board is obliged to act in a manner that is procedurally fair (Weeks, para 61), as it is when resolving challenges to revocation of parole licences (R (West) v Parole Board  UKHL 1,  1 WLR 350, para 1. In contrast with the position which obtained in the past (Weeks, para 64), the Board now has the power to direct the release of a tariff-expired mandatory life sentence prisoner and not merely to advise or make a recommendation to the Secretary of State.
14. It was submitted on behalf of the Board (in an argument adopted and elaborated by the Secretary of State) that the requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. This is undoubtedly so. Lord Mustill so held, in an opinion with which the other members of the House agreed, in R v Secretary of State for the Home Department, Ex p Doody  1 AC 531, 560. The House referred to this passage with approval in R (West) v Parole Board  1 WLR 350, para 27. The European Court has ruled to similar effect in cases such as Bouamar v Belgium (1987) 11 EHRR 1, para 60 and Chahal v United Kingdom (1996) 23 EHRR 413, para 127. The Board also submitted, again correctly, that decision-making procedures may, so long as they are fair, be adapted to take account of interests other than those of the defendant, prisoner or applicant. This proposition too is vouched by compelling authority. Thus in R v Parole Board, Ex p Watson  1 WLR 906, 916-919, the Court of Appeal recognised the paramount duty of the Board to protect innocent members of the public against any significant risk of serious injury, while also recognising the hardship and injustice of continuing to imprison a person who is unlikely to cause serious injury to the public. In Brown v Stott (Procurator Fiscal, Dunfermline)  1 AC 681, 704, 707-708, the Privy Council emphasised the need for balance between the rights of the individual and the wider rights of the community, a point repeated in the House in R v A (No 2)  UKHL 25,  1 AC 45, paras 91, 94, 99. In R v H  UKHL 3,  2 AC 134, para 23, the House acknowledged the need to reconcile an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime. In Doorson v Netherlands (1996) 22 EHRR 330, para 70, and again in Van Mechelen v Netherlands (1997) 25 EHRR 647, para 53, the European Court has recognised the life, liberty and security of witnesses as an interest to be taken into consideration. In Tinnelly & Sons Ltd and McElduff v United Kingdom (1998) 27 EHRR 249, para 76, the Court was mindful of national security considerations. In Jasper v United Kingdom (2000) 30 EHRR 441, para 52, it was held that national security and the need to protect witnesses at risk of reprisals must be weighed against the rights of the accused. Thus convention rights are to be applied not in a vacuum but in the world as, for better or worse, it is.
15. In making a decision on the release of a tariff-expired mandatory life sentence prisoner such as the appellant, the Board is not determining a criminal charge: R (West) v Parole Board, above, paras 38-41, 56, 76, 90, 91. The criminal limb of article 6(1) of the Convention is not engaged. It follows that the Board is not bound to follow the procedure which would be required in a criminal trial. But, as was said in R (West) v Parole Board, above, para 35,
What is at stake in this instance is, on the one hand, the safety and security, perhaps the life, of a witness, and, on the other, the real possibility that the appellant may remain in prison until he dies. In this case, as in R v H, above, para 33,
16. The ordinary principle governing the conduct of judicial enquiries in this country is not, in my opinion, open to doubt. In Re K (Infants)  Ch 381, 405-406, Upjohn LJ expressed it thus:
On appeal to the House in the same case ( AC 201, Lord Devlin referred at p 237 to "the fundamental principle of justice that the judge should not look at material that the parties before him have not seen", and at p 238, referring to "the ordinary principles of a judicial inquiry", he continued:
Lord Mustill, with the agreement of all other members of the House, spoke in similar vein in Re D (Minors) (Adoption Reports: Confidentiality)  AC 593, 603-604, when he described it as
Later in the same opinion, at p 615, he said:
This principle has been upheld in such domestic cases as R v Parole Board, Ex p Wilson  QB 740, 751, per Taylor LJ (disclosure of reports to the Board), whose reasoning was adopted by the House in Doody, above, p 562, and R v Secretary of State for the Home Department, Ex p Hickey (No 2)  1 WLR 734, 746 (disclosure of evidence elicited by the Secretary of State following a conviction), where Simon Brown LJ said:
In dismissing a challenge to special measures directions for the protection of juvenile witnesses in R (D) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393, the House attached importance to the fact that the defendant was able to challenge and cross-examine the witnesses and that the evidence was produced at trial in the presence of the accused, who could see and hear it all: see para 49 of the opinion of Baroness Hale of Richmond, with which all members of the House agreed.
17. The European Court has affirmed the importance of this principle in criminal cases governed by article 6(1) of the Convention, holding that as a general rule all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument, giving him an adequate and proper opportunity to challenge and question witnesses against him: see, for example, Lamy v Belgium (1989) 11 EHRR 529, para 29; Kostovski v Netherlands (1989) 12 EHRR 434, para 41; Brandstetter v Austria (1991) 15 EHRR 378, paras 66-67; Edwards v United Kingdom (1992) 15 EHRR 417, para 36; Van Mechelen v Netherlands (1997) 25 EHRR 647, para 51; Lucà v Italy (2001) 36 EHRR 807, para 39; Garcia Alva v Germany (2001) 37 EHRR 335, para 39. In non-criminal article 5(4) cases the approach of the Court has been similar, generally requiring disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses: see, for example, Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, para 51; Bouamar v Belgium (1987) 11 EHRR 1, para 60; Weeks v United Kingdom (1987) 10 EHRR 293, para 66; Megyeri v Germany (1992) 15 EHRR 584, para 23; Hussain v United Kingdom (1996) 22 EHRR 1, paras 58-60; Al-Nashif v Bulgaria (2002) 36 EHRR 655, paras 90-98. It is quite true, as the Board insisted in argument, that the Court accepted that these rights were not absolute or incapable of valid qualification. But in Tinnelly and McElduff , above, para 72, the Court pointed out that any limitations must not "restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired".
18. It is in my opinion plain that the procedure which the Board propose to adopt in resolving the appellant's parole review will infringe the principles discussed in the foregoing paragraphs. The Board will receive and be free to act on material adverse to the appellant which will not, even in an anonymised or summarised form, be made available to him or his legal representatives. Both he and his legal representatives will be excluded from the hearing when such evidence is given or adduced, denying him and them the opportunity to participate in the hearing, by questioning any witness or challenging any evidence called or adduced to vouch the sensitive material, or by giving or calling evidence to contradict that material, or by addressing argument. The appellant and his legal representatives are free to instruct the specially appointed advocate (whose integrity and skill are not in question) so long as none of them knows anything of the case made against the appellant on the basis of the sensitive material, but the specially appointed advocate is forbidden to communicate with the appellant or his legal representatives once he knows the nature of the case against the appellant based on the sensitive material. It is only at that stage that meaningful instructions can be given, unless the appellant has successfully predicted the nature of the case in advance, in which case he may well have identified the source and undermined the need for secrecy. The Parole Board assert that the specially appointed advocate may call witnesses, and in the absence of any warrant or authority to adopt the specially appointed advocate procedure that may be so. This was not, however, the understanding of the House of Commons Constitutional Affairs Committee ("The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates", Seventh Report of Session 2004-05, vol 1, HC 323-1, 3 April 2005, para 52(iii)). But even if a specially appointed advocate is free to call witnesses, it is hard to see how he can know who to call or what to ask if he cannot take instructions from the appellant or divulge any of the sensitive material to the witness. In M v Secretary of State for the Home Department  EWCA Civ 324,  2 All ER 863, the Court of Appeal acknowledged in para 13 that a person appealing to SIAC, in much the same position as the appellant would be under the proposed procedure, was "undoubtedly under a grave disadvantage" and, in para 16, that "To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual's rights". In its decision letter challenged in these proceedings the Board realistically accepted that as compared with the appellant's solicitor a specially appointed advocate would be at a "serious disadvantage" and that adoption of the special advocate procedure would result in prejudice to the appellant. I regard these observations as amply justified. In the vivid language used by Lord Hewart CJ in a very different context in Coles v Odhams Press Ltd  1 KB 416, 426, the specially-appointed advocate would inevitably be "taking blind shots at a hidden target".
19. In view of what the European Court in Garcia Alva, above, para 39, called "the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned", I would doubt whether a decision of the Board adverse to the appellant, based on evidence not disclosed even in outline to him or his legal representatives, which neither he nor they had heard and which neither he nor they had had any opportunity to challenge or rebut, could be held to meet the fundamental duty of procedural fairness required by article 5(4). "It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory": Stafford v United Kingdom (2002) 35 EHRR 1121, para 68. If the procedure proposed is fully adopted, the appellant's rights under article 5(4) could be all but valueless. The Secretary of State might have to make the difficult choice between not disclosing information to the Board and ensuring effective protection of its source. But I would decline the appellant's invitation to rule, at this stage, that the adoption of the proposed procedure is necessarily incompatible with article 5(4). The practice of the European Court is to consider the proceedings in question as a whole, including the decisions of appellate courts: Edwards v United Kingdom, above, para 34. Thus its judgment is almost necessarily made in retrospect, when there is evidence of what actually happened. This reflects the acute sensitivity of the Court to the facts of a given case. Save where an issue of compatibility turns on a pure question of statutory construction, the House should in my opinion be similarly reluctant to rule without knowing what has actually happened. This seems to me important because there are some outcomes which would not in my opinion offend article 5(4) despite the employment of a specially appointed advocate. It might, for instance, be that the Board, having heard the sensitive material tested by the specially appointed advocate, wholly rejected it. Or having heard the material tested in that way the Board might decline to continue the review unless the sensitive material, or at least the substance of it, were disclosed at least to the appellant's legal representatives, relying on the Court's observation in Doorson, above, para 74, that "the Convention does not preclude identification - for the purposes of Article 6(3)(d) - of an accused with his Counsel". Or the Board might, with the assistance of the specially appointed advocate, devise a way of anonymising, redacting or summarising the sensitive material so as to enable it to be disclosed to the appellant or his legal representatives. Or the Board might, in a manner that was procedurally fair, reach a decision without relying at all on the sensitive material. If any of these possibilities were to eventuate, I do not think there would be a violation of article 5(4).