Administrative Court clarifies Parole Board Rules
26th November 2010
In a two-part judgment, the Administrative Court has provided long awaited clarification of Rules 6 and 7 of the Parole Board Rules 2004 (as amended) in R (on the application of Jacob) v. Parole Board [2010] EWHC 2475 (Admin) & [2010] EWHC 3035 (Admin).
The claimant (“C”) prisoner applied for judicial review of a decision by the defendant (“D”) that he should not be released. D had provisionally listed C for an oral hearing of his application for parole. It wrote to him saying that he should receive all the relevant information and reports from his prison within eight weeks and that thereafter he would have four weeks to submit his representations. However, C's solicitors did not submit any representations and P provisionally decided his application without them, having concluded an oral hearing was not necessary. D refused C's subsequent application for an oral hearing. The C submitted that (1) since there was no oral hearing, the case was never listed for hearing and so the condition in the Parole Board Rules 2004 r.7 for imposing a time limit was not met; (2) the determination of his parole application without his representations was procedurally unfair and was not cured by the review following his subsequent application for an oral hearing.
Sam Karim successfully argued that: (1) It was possible, under the Rules, for an oral hearing to be listed even if it was subsequently refused (see para. 4.5 of the judgment); and (2) When, after a provisional decision that a prisoner should not be released, he requested an oral hearing, the decision about the oral hearing had to take into account all of his representations. Therefore, the process as a whole was not tainted with any procedural unfairness (paras 6 and 9).
Sam Karim has also recently obtained helpful guidance from the Administrative Court in the prison and immigration laws context, namely in:
(i) in R (on the application of Howden) v. Secretary of State for Justice & Chief Constable of South Yorkshire [2010] EWHC 2521 (Admin) where he successfully argued that the secretary of state had been entitled to recall the claimant to prison on the basis of police intelligence suggesting continuing criminal conduct on his part. The Court stated (by way of guidance) that there had in this area to be a spectrum between cases where the evidence of breach was more or less conclusive, when a finding of breach would not be susceptible to a successful challenge, and cases in which an allegation came from a dubious source or could easily be the product of malice, in which case a challenge would succeed. In this case, the secretary of state had been supplied with information on the basis of which he could properly act as he had. The key point lay in the Defendant's opinion that his sources were credible. The Court concluded that the secretary of state had to weigh fairness to the defendant with mitigation of risk to the public, and the balance would swing too far against the public interest if the secretary of state were obliged to make a more meticulous examination of the facts (see paras 14-15 of judgment); and
(ii) in R (on the application of Da Costa) v. Secretary of State for Home Department [2010] EWHC 2259 (Admin) where he successfully argued that where an application for leave to remain in the United Kingdom did not comply with the requirements of the Immigration and Nationality (Fees) Regulations 2007 reg.21 the secretary of state had no discretion to treat it as a valid application. The Court stated that the Immigration Directorate Instructions drew a distinction between an application that was invalid because of non-compliance with a requirement of the Immigration Rules, and invalidity arising from non-payment of the fees due under the Regulations. It was clear that in the latter case no discretion arose. The only basis on which an in-time application not accompanied by a fee could be treated as valid was if payment of the fee was waived. If the application was rejected, as in the instant case, then it could only be valid if it was resubmitted with the fee. The question of whether or not an in-country right of appeal arose depended on the date of the submission of the resubmitted application.