Wakenshaw, R (On the Application Of) v Secretary Of State For Justice, Court of Appeal - Administrative Court, August 07, 2018, [2018] EWHC 2089 (Admin)

Resolution Date:August 07, 2018
Issuing Organization:Administrative Court
Actores:Wakenshaw, R (On the Application Of) v Secretary Of State For Justice

Neutral Citation Number: [2018] EWHC 2089 (Admin)

Case No: CO/2461/2018




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 07/08/2018

Before :


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Between :

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Matthew Stanbury (instructed by Swain & Co) for the Claimant

Kate Gallafent QC & Jason Pobjoy (instructed by GLD) for the Defendant

Tom Cross (instructed by GLD) for the Interested Party

Hearing date: 26 July 2018

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Mr Justice Mostyn:

  1. The claimant has a long record of criminal offending. On 23 October 2009 he received an indeterminate sentence of imprisonment for public protection. He has served the minimum term stipulated within his sentence. His continued detention is periodically reviewed by the Parole Board to determine his suitability for release. In these judicial review proceedings he claims that the Parole Board lacks the requisite independence under the common law and article 5(4) of the European Convention on Human Rights. In fact, he does not seek to prevent his current review going ahead; indeed he expressly says he wishes it to. His claim is more fundamental: it is that he cannot receive a fair trial at the hands of this quasi-judicial body for various reasons. The substantive relief that he seeks is a declaration that the Board is not an objectively fair adjudicative body. However, he seeks interim relief going wider than this substantive relief. He seeks an interim order from me that would halt the selection process of a new Chair of the Board.

  2. I indicated at the conclusion of the hearing that the application for such an interim order would be refused, for reasons to be given by me in writing, together with my written decision on the claimant's application for permission to seek judicial review. This judgment gives those reasons and that decision.

  3. The catalyst for this claim was the abrupt resignation of the previous Chair of the Board, Professor Nick Hardwick, on 27 March 2018 following a meeting between him and the Secretary of State for Justice, in the wake of the Worboys controversy. That controversy is fully described in the decision of the Divisional Court in R (DSD and others) v the Parole Board for England and Wales and others [2018] EWHC 694 (Admin). The facts are well-known, and I do not need to repeat them here.

  4. The independence of the Parole Board has been previously challenged in judicial review proceedings. See the decisions of the Divisional Court and the Court of Appeal in R (Brooke and another) v Parole Board (and another) at respectively [2007] HRLR 1239 and [2008] 1 WLR 1950. Certain criticisms were made in those proceedings about the constitution of the Board and of its works. It is the claimant's case that the steps since taken (or to be taken) have not cured (or will not cure) the problems that were identified by the court.

  5. There is no dispute about the law. Not only must the procedures of a judicial body be actually fair but to the reasonable observer they must appear to be fair: see para 20 of the Court of Appeal judgment in Brooke where Lord Phillips of Worth Matravers CJ stated ``a court must be and be seen to be both independent and impartial.'' This is the standard of objective independence.

  6. The grounds now relied on by the claimant (some originally pleaded have fallen away) are as follows:

    a) The Parole Board remains sponsored by the Ministry of Justice. As the Ministry is an invariable party to proceedings before the Board, it cannot be said that there is an appearance of fairness where the Ministry sponsors the Board.

    b) The process of appointment to the Board is flawed.

    c) Tenure once appointed is too short and too precarious.

    d) The power of the Secretary of State to give directions to the Board impugns its independence.

  7. I can deal with (a), (b) and (d) quite briefly as I am satisfied that there is no merit in these points.

  8. So far as sponsorship by the Ministry is concerned the Court of Appeal in Brooke stated that that of itself did not impugn the independence of the Board: see paras 70, 92 and 97. The sole concern in that case was that the sponsor of the Parole Board was also the head (in effect) of the National Offender Management Service (NOMS). In para 97 the Court of Appeal stated that ``the fact that the Board has to work closely with NOMS requires that it should be manifestly independent of NOMS''. That impugned congruence is now no longer the case and the Board now is manifestly independent of NOMS. The sole problem having been resolved I am clear that it cannot properly be re-argued that by virtue of the fact of sponsorship alone the independence of the Board is impugned.

  9. The appointments process, whether of members of the Board or its Chair, is described with clarity in the witness statement of Margaret Garrett who is the head of the Ministry of Justice's public appointments team. The process is very familiar. Under Schedule 19 of the Criminal Justice Act 2003 the Secretary of State is required to appoint the members, including the Chair, of the Board. What now happens is that for the appointment of the Chair there is...

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