Dangerous prisoners may have been set free by mistake thanks to a botched attempted by Justice Secretary Dominic Raab to reform Parole Board hearings, the High Court has found.
The Lord Chancellor changed the rules in July last year in a bid to ban Ministry of Justice staff from expressing a view on whether offenders should be set free from prison.
Raab wanted the power to offer a “single Secretary of State view” in high-profile cases, without the risk of being contradicted by prison or probation staff in their expert reports and evidence.
However, judges in the High Court on Wednesday found the rule change was unlawful, it may have had unintended consequences, and could even have exposed staff who gave evidence to Parole Board hearings to contempt of court accusations.
Delivering a scathing ruling, Lady Justice Macur and Mr Justice Chamberlain found MoJ guidance from July, which was updated in October, would have been in effect for more than 12,000 Parole Board hearings.
“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”, said the judges.
“It is not possible to say with certainty what effects this guidance has had in the cases determined while it was in force. 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.”
Raab’s rule said reports on the prospect of prisoner release should “present all relevant information and a factual assessment pertaining to risk”, but “must not present a view or recommendation as to the prisoner’s suitability for release or move to open prison conditions”.
Staff were told not give their opinions, and were handed a series of example phrases to avoid including: “My assessment of the likely outcome should Mr/Ms X be released is….”
The judges, presiding over a legal challenge by two serving prisoners to the changes in Parole Board procedure, said the reforms would not have worked as intended by Raab, and suggested there had been a misunderstanding of how Parole Board hearings – which are quasi-judicial – actually work.
“As with an expert in court proceedings, the value of any opinion evidence given by an HM Prison and Probation Service staff member in proceedings before the Board depends on its being the witness’s honest and candid professional opinion, expressed in the witness’s own words”, they said.
“Any suggestion that the witness was tailoring their evidence so as to be consistent with their employer’s view would substantially reduce the weight that could be given to it.
“The suggestion that the Secretary of State can properly insist on a ‘party line’ on the ultimate issue seems to us to emanate from a fundamental misunderstanding of the nature of these judicial proceedings and the role of professional witnesses in them.”
Finding the rule change was “unlawful”, the judges concluded: “One of the Secretary of State’s principal purposes in making it was to suppress or enable the suppression of relevant opinion evidence which differed from his own view in cases where he expressed one. That purpose was improper.
“The decision to make the rule was an attempt by a party to judicial proceedings to influence to his own advantage the substance of the evidence given by witnesses employed or engaged by him and an impermissible interference with a judicial process.
“The fact that the attempt failed because the drafters did not achieve his purpose does not save the decision from being unlawful.”
The judges said there was “no legal basis” for an instruction to staff not to answer Parole Board questions about their ultimate view on a case, opening up the possibility that Raab’s directions could have “induced” staff to commit contempt of court.
The Ministry of Justice disputed the court’s assessment that prisoners could have been set free in error, asserting there is no evidence of this happening.
A spokesperson said: “This is a disappointing result and we are carefully considering our legal options to ensure we are able to press ahead as intended.
“The Government is committed to ensuring that our parole system functions properly to protect the public and keep dangerous offenders behind bars. Our Parole reforms will be brought forward soon to further put public protection at the heart of the system.”
Judges will now hear submissions from parties in the case on what to do next, as a consequence of the unlawfulness found and the possible contempt of court issue.
