Text:ICLR R (Brooke) v Parole Board [2008] EWCA Civ 29


PRISONS — Prisoners’ rights — Release on licence — Parole Board deciding whether convicted prisoners to be released on licence — Whether board sufficiently independent from executive — Human Rights Act 1998, Sch 1, Pt I, art 5(4).


The Parole Board did not have the independence from the executive that was required for its judicial role in determining whether convicted prisoners should be released on licence.

The Court of Appeal so held in dismissing an appeal by the Secretary of State for Justice against the decision of the Queen’s Bench Divisional Court (Hughes LJ and Treacy J) on 7 September 2007 (The Times 18 October 2007) to grant the claimants, Michael Brooke, Gagik Ter-Ogannisyan, David O’Connell and Michael Murphy, all prisoners who had depended or would depend for their release upon a decision of the Parole Board, a declaration that the Parole Board did not meet the requirements of the common law and of art 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms for a court to have demonstrated objective independence of the executive and of the parties.

LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the Divisional Court’s findings as to the Parole Board’s lack of independence, both actual and apparent, were justified and fully supported by the evidence. The cause of the problem had been the change of function of the board from that of a body advising the Secretary of State in relation to an executive discretion to release prisoners whose penal sentences were part served to that of a judicial body assessing whether continued deprivation of a prisoner’s liberty was justified because of the risk that he would re-offend if released. Neither the Secretary of State nor his department had adequately addressed the need for the board to be and to be seen to be free of influence in relation to the performance of its judicial functions. Both by directions and by the use of his control over the appointment of members of the board the Secretary of State had sought to influence the manner in which the board carried out its risk assessment. The close working relationship between the board and the unit acting as its sponsor had tended to blur the distinction between the executive role of the former and the judicial role of the latter. The restriction of funding, intended to dissuade the board from interviewing prisoners, was not aimed at influencing the results reached by the board but at procuring that the board, contrary to its wishes, refrained from, or reduced, an aspect of its procedure which the department did not consider warranted the expense that it involved. While that did not threaten the board’s impartiality it was interference which exceeded what could properly be justified by the role of sponsor. Their Lordships then gave guidance in relation to those areas which required attention in order to ensure that the board enjoyed and was seen to enjoy the independence from the executive which its judicial role required.


R (Brooke and another) v Parole Board and another; R (O’Connell) v Parole Board and another; R (Murphy) v Parole Board and another [2008] EWCA Civ 29M; [2008] WLR (D) 26

CA: Lord Phillips of Worth Matravers CJ, Dyson and Toulson LJJ: 1 February 2008

Appearances: Philip Sales QC and Mark Vinall (Treasury Solicitor) for the Secretary of State; Sam Grodzinski (Irwin Mitchell, Bhatt Murphy and Stephensons LLP) for the claimants; Michael Fordham QC and Gemma White (Treasury Solicitor) for the Parole Board.

Reported by: Jill Sutherland, Barrister