R (Brooke) v Parole Board  EWHC 2036 (Admin)
The Parole Board lacks independence for the purposes of Article 5(4) ECHR because of the sponsorship relationship with the Ministry of Justice which is a party to its proceedings.
The Claimants argued that the Parole Board does not enjoy the independence which is the essential hallmark of a court. There was no question over the independence of individual members.
The critical question was whether the PB satisfies the test of being a "court" for the purposes of Article 5(4). It need not be part of the classic integrated national court structure, providing it sufficiently demonstrates independence (having regard to appointment and term of office, guarantees against outside pressure, appearance of independence) and impartiality (a subjective test of personal conviction of the judge, and objective test concerning guarantees sufficient to exclude any legitimate doubt).
The common law test - of actual bias, or apparent bias where a fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased - is the same as the Article 5(4) test, with the exception that the common law must yield to express statutory enactment (here, the appointment of Board members by the SoS).
Weeks v UK (1998) and Hirst v UK (2000), in which the court had said obiter that the Parole Board did not lack independence or impartiality, were distinguished. The present court had much more evidence; were more aware of the level of contact between the Board and its sponsoring Department, and the latter's approach to sponsorship; were aware of concerns about independence expressed by Board members; and, also, the range and importance of the Board's decisions have since increased.
Areas of concern
1. Appointment. Although the members of the Board are appointed by the SoS who is concerned as a party in every case, the routine arrangements for appointment are quite consistent with objective independence. However, the SoS had used this power inconsistently with this (see Sponsorship below).
2. Chief Probation Officers. These are appointed by a separate system of ministerial interviews and remain employed within NOMS, part of the Department. There is no absolute rule that employment by a party of a member of the court always creates an objective lack of independence. There is a tension between achieving the necessary specialist expertise (the ordinary recruitment process did not yield enough CPOs) and concern about the appearance of independence, but this falls on the right side of the line.
3. Tenure. Members are appointed for 3 years, which period may be and routinely is extended for a further 3 years. The period of appointment is consistent with independence but near the low borderline of what is acceptable. However, coupled with the SoS's unfettered power to remove members without any procedure for the determination of the merits, the provision failed the test of independence.
4. Rule-making. It is less than ideal that that the Rules should be made by a party to the proceedings but the Parliamentary procedure for approval makes it acceptable.
5. Directions. The power to give directions is not inconsistent with the Board's independence. However, in giving guidance which had significantly re-stated the statutory test, the SoS had used this power in a way which created the clear appearance (indeed the fact) of lack of independence (see Sponsorship below).
6. Funding. The Board is funded as part of the Department budget, but this is not in itself inconsistent with independence. However, the funding arrangements had been used to influence decision-making (see Sponsorship below).
7. Sponsorship generally. The Board arose as an advisory body when the relevant decisions were in the discretion of the SoS, and the sponsorship arrangements were then appropriate; however, this relationship is no longer appropriate now that the Board has statutory responsibility for those decisions. The Board is housed in a Department building and shares staff and email and there are many meetings at all levels between the two. Senior members of the Board had expressed anxiety about the perceived lack of independence. A Home Office "Comprehensive Review" had treated the Board as an in-house body rather than an independent decision-maker.
7(a). Prisoner interviews. The Home Office had disagreed with the Board over the usefulness of prisoner interviews and reduced the budget on the basis that there would be interviews in only a few cases. This was inconsistent with the objective appearance of independence.
7(b). Appointments with a view to outcomes. The SoS recruited additional Board members (who had experience of being victims of crime), and restated release guidance (so that members should be "absolutely satisfied" it was safe to release); this was designed to alter the outcome of cases before the Board and was inconsistent with the objective appearance of independence.
In conclusion, it was the relationship of sponsorship which created the objective appearance of lack of independence. This is linked with the above-mentioned concerns over tenure; abuse of powers of funding, appointment and direction-making; and an appearance of integration given by regular confidential meetings and shared housing and email. Taken together, the present arrangements for the Parole Board do not sufficiently demonstrate its objective independence of the Secretary of State, as required by both English common law and Article 5(4) ECHR.
The facts of the four cases were all slightly different, and Murphy made an additional unsuccessful reasons challenge to his PB decision. O'Connell's case involved a question of whether Article 5(4) applied to the initial release of CJA 2003 extended sentence prisoners. This is because they are still within the fixed sentence determined by the court; there is also debate as to the applicability of Art 5(4) to the initial release of CJA 1991 long term prisoners and of CJA 1967 prisoners. His case was adjourned.
The court made a declaration that the Parole Board did not meet the requirements of the common law and of Article 5(4) for a court to have demonstrated objective independence of the executive and of the parties. In O'Connell's case the declaration only related to the common law. No quashing orders were granted as there was no evidence on the facts that the decisions would have been different, and/or because the recall period had expired.
See also: BAILII