R (Hickman) v (1) Parole Board, (2) Secretary of State for Justice

The Administrative Court has dismissed a challenge to the use of closed material procedures in Parole Board proceedings.

The claimant is serving an extended sentence for public protection. He was released on licence but the Secretary of State recalled him to prison following his arrest on suspicion of committing a crime of which he was later exonerated.

As things stood when these judicial review proceedings were issued, the claimant would remain in prison until the earliest of: (i) the Secretary of State deciding to cancel the licence revocation and rescind the recall or exercising executive release powers; (ii) the Parole Board being satisfied that it is not necessary for protection of the public that the claimant should remain in prison (known as ‘the statutory release test’) and therefore directing the Secretary of State to release him; or (iii) the expiry of the claimant’s sentence in May 2030.

The purpose of the judicial review was to challenge the alleged unfairness of the procedure by which the Board proposed to decide the claimant’s case. The claimant made various complaints about case management decisions made by the Board, which he alleged would result in the proceedings before the Board being unfair. In particular, the claimant took issue with the Board’s proposed use of a ‘closed material procedure’ (CMP) under rule 17 of the Parole Board Rules 2019. By a subsequent amendment, the claimant challenged the lawfulness of rule 17 itself, arguing that the Board can never lawfully hold a CMP.

Under rule 17, the Secretary of State may apply to the Board for material to be withheld from a prisoner, or from both the prisoner and their representative, where the Secretary of State considers: (a) that the disclosure of the material would adversely affect (i) national security, (ii) the prevention of disorder or crime, or (iii) the health or welfare of the prisoner or any other person; and (b) that the withholding of the material is a necessary and proportionate measure in the circumstances of the case. There are various safeguards to mitigate any unfairness to the prisoner, including the possibility of appointing a special advocate to represent the prisoner’s interests at the closed hearing.

By the time the claim came to be heard, the Board had already completed its review of the claimant’s case and had directed the Secretary of State to release him from prison. May J held that the claim had therefore become academic and rejected the claimant’s argument that it was nevertheless in the public interest for the claim to be heard and determined.

The judgment can be accessed here.

Iain Steele acted for the Parole Board.