Rule 2(2) of Raab’s amending statutory instrument, which came into force in July 2022, barred HM Prison and Probation Service staff from recommending any prisoner’s release, transfer or refusal. It provided, where appropriate, the secretary of state would present a ‘single view’ on the prisoner’s suitability for release. Also in July, the justice secretary issued guidance on the rule change, which was used in staff training. This guidance was challenged in court and replaced with new guidance in October. However, no further training was provided on the change.
Two prisoners who had applied to the Parole Board brought a legal challenge.
Giving judgment in R (on the application of Bailey and another) v Secretary of State for Justice [2023] EWHC 555 (Admin) last week, Lady Justice Macur and Mr Justice Chamberlain held Raab’s decision to make rule 2(2) unlawful because it had no rational justification and its purpose ‘to suppress or enable the suppression of relevant opinion evidence which differed from his own view’ was ‘improper’.
Moreover, they held that the decision to promulgate both the July and October guidance was unlawful.
Macur LJ and Chamberlain J noted it was ‘well established that, when exercising powers in relation to the Board, the Secretary of State must not do anything that undermines or would be perceived as undermining the independence of the Board or that encroaches upon or interferes with the exercise by the Board of its judicial responsibilities’.
They stated: ‘The July and October Guidance was bound to cause report writers to breach their legal obligations. The evidence shows that it did so in the first claimant's case… More generally, it is plain that the July and October Guidance will have caused report writers to breach their legal obligations in a large number of cases… It is not possible to say with certainty what effects this guidance has had… But its promulgation may well have resulted in prisoners being released who would not otherwise have been released and in prisoners not being released who would otherwise have been released.’
