This week, the Judicial Reviews of the Parole Board’s decision to release serial sex offender John Worboys were successful. Apart from quashing the decision and sending it back to be reconsidered on better evidence, the High Court also struck down that bit of the Parole Board’s rules which prevented the original decision being made public.

For those who are interested in the wider issues around the Worboys case in general, we recommend the explanation in iNews by Secret Barrister here as a good starting point : Your questions answered on the unusual and complex John Worboys case. See also commentary on The Justice Gap on the events following the decision. This post focuses on the transparency aspect emerging from the judgment.

For those who want to read the whole judicial review judgment of the High Court see the Judiciary website here (The Queen on the application of DSD and NBV & Ors -v- The Parole Board of England and Wales & Ors and John Radford [2018] EWHC 694 (Admin)). The judiciary site also links to a useful summary of the case for those not quite up to reading the whole 53 page judgment! It’s probably pretty tough going for a non-lawyer (pretty tough going for lawyers actually).

What do the Parole Board Rules say about privacy?

Parole Board rule 25 says that

(1) Information about proceedings under these Rules and the names of the persons concerned in the proceedings must not be made public.

(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result.

This is pretty strict stuff. It is similar in breadth to the rules that apply to cases about children in the Family Court, where s12 Administration of Justice Act 1960 prohibits publication of ‘information relating to proceedings’, and s97 Children Act 1989 prevents the public identification of the children involved. But, whereas the Family Court has powers to relax these default provisions where justified, there does not seem to be any such discretion for the Parole Board (the types of potential penalties are different too, but we don’t have time to go into that here). They can’t tell the public what the basis of their decision is – even if they want to. Parole Board Chair Nick Hardwick (who resigned following the decision) was saying this and arguing it should change even before the judicial reviews were brought.

What does this have to do with Worboys being released?

There was a complaint that the victims of Worboys weren’t give a copy of the reasons, which made it difficult for them to challenge it. This wasn’t the fault of the Parole Board, because the rule tied their hands. Nick Hardwick had been calling for these rules to be reformed so that decisions could be made more transparent, so this was not a case of the Board trying to hide anything. Quite apart from the individual victims not being given access to information the press were unhappy too, that they couldn’t explain the decision to the public (although of course the very existence of a secret process is itself always a newsworthy story for the mainstream media). Family Courts are often criticised for being secret, but in fact they are rather less secret than the Parole Board proceedings, since the press have a right of access and the court has a discretion to sit in public and / or to allow publication of information.

Anyway, back to the JR. Those who were given permission to judicially review the Board were given a copy of the decision by the High Court, along with the evidence it was based on (on condition they kept it confidential), to enable them to prepare and run their arguments. The names of reporting officers and psychologists were replaced by acronyms which are also used throughout the judgment. That this was done just goes to show that is is possible to make information available without adopting an all or nothing approach (although scaling this up to a system wide reform would be a somewhat more demanding undertaking).

What we now know thanks to the JR decision – and the applicants for judicial review will have discovered when they got their anonymised documents – was that any benevolent assumption that the Parole Board had and considered all the relevant background information in front of it, or that they had properly probed the credibility and reliability of Mr Radford’s account, would have been misplaced. The effect of the rule would have been to hide that fact if it had not been for the tenacious judicial reviewers. If the judicial review had not been brought or had not been given permission we would never have known about the lack of rigour in the Board’s approach, that are explained in Secret Barrister’s article.

The Secretary of State (the Government) tried to persuade the court not to bother with dealing with the question of whether the rules were lawful (intra vires) or not lawful (ultra vires), relying on the rather unattractive argument that the rule has been in place since 2016* and nobody has complained before now, so it’s too late. The High Court decided to deal with it anyway. Amusingly, one of the reasons they gave for this was that the Government’s complaint that the challenge to the rule was too late was itself too late!

The High Court recognised that its own judgment would place information in the public domain that the Parole Board could not, but said it would only go so far and would  ‘seek to preserve the confidentiality of matters which it is unnecessary to place in the public domain to enable our reasons, and the bases for those reasons, fully to be understood.’

The Press relied upon the ‘Open Justice Principle’, and argued that even if a private hearing is justified that doesn’t necessarily mean a blanket prohibition on the publishing of information, including the giving of reasons, was justified. They said that even in national security cases where there is a closed material procedure, the court hands down an open judgment which sets out as much information as possible, consistent with the interests of national security.

Other arguments related to the victims’ right of access to justice.

What did the High Court decide about transparency?

The Court confirmed that the ‘Open Justice Principle’ includes

  • the obligation to hold hearings in open court to which the public has access
  • the right of the press and others to report on legal proceedings
  • the placing into the public domain of judicial decisions, even in cases where there has been a closed material procedure
  • the obligation to ensure that evidence or information communicated to a court is presumptively available to the public

One question was whether the Board was a ‘court’ to which the principle applies in the first place. There, the big question is whether the board exercises ‘the judicial power of the state’. It’s pretty clear that the Parole Board (like the Family Court) does just that – it deals with the liberty of prisoners.

The Court held that the Parole Board Rule 25 was ultra vires (unlawful) because it offended against the principle of open justice and of a victim’s right of access to the court.

There are no obvious reasons why the open justice principle should not apply to the Parole Board… there are clear and obvious reasons why the Parole Board should do so. This information can readily be provided in a fashion which in no way undermines the Article 8 rights of the prisoner and the confidentiality which attaches to it.

Our conclusion is that the open justice principle, or more particularly the right of the public to receive information which flows from the operation of that principle, applies to the proceedings of the Parole Board.

The decision is specifically not a decision that is just based upon a victim’s right to information – it was not just the victims who brought judicial review on this ground, but also the press. The court held that the public at large could and should be provided more information. Even if (as with its own judgment) it was necessary to remove some pieces of sensitive information before publication, there was no justification for a rule that said nothing should be provided at all. Until 2011 the rule had been that as a default no information would be provided – but the new rule allowed for no exceptions. And that was a problem and unjustifiable.

The High Court say that it is acceptable for the Board to be able to regulate its own procedure including to decide to sit in private, but it didn’t answer the question as to whether Parole Board proceedings should always be held in private.

What next then?

The judgment confirms that the Secretary of State is now reviewing Rule 25 (and was doing so before the decision of the High Court). It may be that the rules are amended to go back to the position before 2011 which gave discretion to the board to sit in public / to publish information – but did not tie their hands completely. It may be that something different is done.

Those considering amendment of the rules will need to give some thought to the practical implications of having a system of private hearings with published anonymised decisions – in the Family Court this has proved cumbersome and difficult to manage without risking the privacy of vulnerable children and adults as anonymisation errors frequently arise in the context of a pressurised underresourced system.

The interesting question is whether this will have any bearing upon discussion of transparency in other areas of the justice system, such as Family Courts where there have been longstanding calls for greater transparency and a proper application of the open justice principle. As the Worboys decision confirms, the open justice principle doesn’t mean an all or nothing approach, but it does mean a system that gives the decision maker discretion to weigh the competing privacy and public interest arguments and to make a decision based on the particular circumstances. That discretion does exist in the Family Court, so perhaps the most useful thing to be taken from the Worboys decision is a reminder that the discretion is there and that the fact most family cases are heard in private does not necessarily mean that there must be an information blackout when it comes to the decision made. If it can be achieved in a sex offender case with the interests of victims being adequately protected it should not be beyond the wit of woman to achieve something similar in children cases.

*we refer to 2011 and 2016 because the rule was changed in 2011 from a default against publishing to an effective ban on publishing, but the most recent version of the stricter rule was contained in a statutory instrument in 2016.

Feature Pic : Once They Unlocked So Many Doors by Viewminder on Flickr (Creative Commons licence – thanks!)