In an earlier judgment [2023] EWHC 555 (Admin) the court allowed the claimant’s judicial review claim, concluding that rule 2(22) of the Parole Board (Amendment) Rules 2022 governing proceedings before the Parole Board (by which HM Prison and Probation Service staff (“HMPPS”) were prohibited from including in their reports a view or recommendation on the question whether a prisoner was suitable for release or transfer to open conditions) and the guidance on it (instructing staff not to offer views on that ultimate issue even when they had such views and had been directed to provide them in reports or in oral hearings) were unlawful, being an interference with the independent judicial determination of the legality of detention, contrary to common law and/or article 5(1) and (4) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the board being a “court” for the purposes of article 5(4)) and ultra vires the power conferred by section 239(5) of the Criminal Justice Act 2003. A further hearing was ordered to determine: (i) whether, if a professional witness employed by the Ministry of Justice were directed by the board to produce written evidence or answer questions orally as to their view on suitability for release, and the witness could reasonably be expected to have such a view but declined to provide it, the witness would be in contempt of court; and (ii) if so, by what procedure the contempt would be addressed. It was common ground that a witness lawfully directed to provide written evidence would be legally obliged to do so, that a failure to provide that evidence would be a breach of the witness’s legal obligation and that only a superior court of record had power to sentence a contemnor of its own motion, the board not being such a court. The Secretary of State, relying, inter alia, on House of Lords authority, contended that although the board exercised a judicial function in determining whether the statutory release test was met, and undoubtedly had court-like attributes, it was not a court of law for the purposes of section 19 of the Contempt of Court Act 1981 but exercised an administrative function in assessing whether detention remained necessary for the protection of the public; that, while accepting that under CPR r 34.4 the High Court could issue a witness summons in aid of an “inferior court or tribunal” on application by the board, that did not mean that the board was a court of law; and that the Parole Board differed from the mental health review tribunal in that (i) the latter had power to summon witnesses or compel the production of evidence and (ii) statute (the Administration of Justice Act 1960) recognised the application of the law of contempt to it. The Secretary of State further submitted that in view of para 99 of the first judgment and pursuant to rule 24(7) of the Parole Board (Amendment) Rules 2022 HMPPS witnesses would be protected from being compelled to give “ultimate issue” evidence.
On the outstanding issues on the claim—
Held, (1) the question whether the law of contempt applied to proceedings before the Parole Board turned on whether the board exercised the judicial power of the state. The suggestion that, in this field, only criminal courts exercised the judicial power of the state was both wrong in principle and contrary to authority. Moreover, there were strong parallels between the board and the mental health review tribunal, whose functions were now discharged by the First-tier Tribunal (Mental Health), in that, like the MHRT, the board (i) previously had had advisory functions only; (ii) had acquired the function of deciding (not merely advising) whether a detained person should be released because the Strasbourg court had held that article 5(4) of the Convention required that question to be decided by an independent and impartial tribunal; (iii) applied a statutory test to determine whether a detained person should be released; (iv) was not bound by the strict rules of evidence; and (v) had judicial and non-judicial members. While the fact that the Parole Board was a “court” for the purposes of article 5(4) of the Convention did not, in and of itself, mean that it was a court for the purposes of the law of contempt, the reason why it was required to be a court for those purposes was that its functions included deciding whether detention was lawful, which fell squarely within the judicial power of the state. Further, a witness’s obligations to attend and to answer relevant and necessary questions were distinct. There was no reason why the latter obligation should not apply simply because the tribunal had no power itself to compel attendance. Indeed, even where the obligation to attend did not apply, there was a strong public interest in protecting the integrity of judicial proceedings from contempt in the face of the court, of which refusal by a witness to answer a relevant and necessary question was one example. Accordingly, a failure to answer a relevant and necessary question posed by the board could constitute a contempt of court (paras 39, 48–51, 54, 56, 57).
(2) The question whether the board had power to deal with contempt itself, without recourse to the High Court, depended on whether it was an inferior court of record. A court, which was a creature of statute, had only those powers given to it by Parliament, whether expressly or impliedly. Neither its governing statute nor its rules gave the board any express power to punish contempt. Parliament did not provide that it was to have the powers of a court of record. The power to punish for contempt was not one which was necessary to enable the board to do justice, since any contempt could be dealt with by the High Court. Therefore a contempt of the board could only be addressed by proceedings in the High Court under CPR Pt 81, brought (i) by a party to the proceedings or by a law officer by application pursuant to CPR r 81.3(3), requiring the permission of the High Court under CPR r 81.3(5)(a), (ii) by the board referring the alleged contempt to the High Court, which could then consider the matter on its own initiative under CPR r 81.6, or (iii) by the High Court on its own initiative under CPR r 81.6 (paras 59–61).
(3) Reading rule 24(7) of the Parole Board (Amendment) Rules 2022 with rule 24(6), objectively and in context, the clear intention was that (i) the strict rules of evidence (including the rule that required an expert witness to be independent of the parties) did not apply and (ii) the ordinary privileges and immunities which applied in civil proceedings (eg legal professional privilege, the privilege against self-incrimination and public interest immunity) did apply in proceedings before the board. It followed that a witness employed by the Ministry of Justice, who had a view and refused to give it in circumstances where no privilege applied, could be in contempt of court. Further, the person giving the instruction not to comply or not to answer could also be guilty of contempt and the fact that the contempt might have been committed by ministers or officials did not attenuate the obligation in CPR r 81.6 to consider whether to initiate contempt proceedings. Since there remained no evidence before the court to explain by what process, or by whom, the two sets of guidance had been drafted or whether it had been approved by the Secretary of State, the latter would be given a further opportunity to file further evidence on those matters, and thereafter the court would consider whether to initiate contempt of court proceedings against any person or persons (see para 3-130 of Arlidge, Eady & Smith on Contempt, 5th ed (2019) (paras 23–26, 62, 64, 65).
Philip Rule KC and Michael Bimmler (instructed by Instalaw Solicitors, Newcastle-Under-Lyme) for the claimants.
James Strachan KC, Scarlett Milligan and Myles Grandison (instructed by Treasury Solicitor) for the Secretary of State.
Ben Collins KC, Nicholas Chapman and Michael Rhimes (instructed by Parole Board) for the board.