Raab interfered with justice process

Prisoners may have been wrongly released or detained, court finds

Prisoners may have been wrongly released — or detained — because the justice secretary Dominic Raab impermissibly interfered with the justice process, two judges ruled this morning.

Dominic Raab giving evidence to the House of Lords justice and home affairs committee this morning ©House of Lords 2022. Photograph by Roger Harris

The High Court upheld a claim for judicial review brought by two prisoners, Adrian John Bailey and Perry Matthew Morris, who were awaiting oral hearings at which Parole Board panels would decide whether they could be safely released on licence.

Although the Parole Board is funded by the Ministry of Justice, it is required to operate independently — like a court.

The two prisoners challenged amendments to the Parole Board rules signed by Raab last June and taking effect in July.

Raab’s new rule 2(22) prohibited prison and probation staff from recommending whether a prisoner was suitable for release or transfer to open conditions. It also provided that, where considered appropriate, the secretary of state would present a “single view” on the prisoner’s suitability for release.

The justice secretary also issued guidance in July for use in staff training. That guidance was then challenged in court and new guidance was introduced in October.

This morning, Lady Justice Macur and Mr Justice Chamberlain held that Raab’s decision to make rule 2(22) was unlawful for two reasons:

1. One of the secretary of state’s principal purposes in making it was to suppress or enable the suppression of relevant opinion evidence which differed from his own view in cases where he expressed one. That purpose was improper. The decision to make the rule was an attempt by a party to judicial proceedings to influence to his own advantage the substance of the evidence given by witnesses employed or engaged by him and an impermissible interference with a judicial process. The fact that the attempt failed because the drafters did not achieve his purpose does not save the decision from being unlawful.

2. There is no evidence that the secretary of state ever considered whether a prohibition on the expression of views on the ultimate issue was justified if its application was limited to the reports sent with the referral. The reasons currently advanced for it do not provide a rational justification for rule 2(22) on its correct, narrow construction.

Even if rule 2(22) had been lawfully made, the court added, the decision to promulgate the July guidance would have been made unlawfully:

It instructed HM Prison and Probation Service (HMPPS) witnesses that they must not include any view on the ultimate issue in their written reports, without distinguishing between the reports to which the prohibition applied and those to which it did not. It also instructed those witnesses to refuse to answer questions about their views on the ultimate issue. There was no legal basis for these instructions, which would induce report writers to breach their legal obligations. The July guidance was therefore unlawful.

The judges continued:

Although the July guidance was “revoked” and replaced by the October guidance, HMPPS staff were never told that the former misstated the law or that they should disregard the training they had recently received based on it. On the contrary, they were given the impression that it was simply being reissued in a more concise form.

No further training was offered. In any event, even taken alone, the October guidance would be understood by HMPPS staff as instructing or encouraging them not to offer views on the ultimate issue even when (i) they have such views and (ii) they have been directed to provide them in reports or asked for them in oral hearings. In these respects, the October guidance continued to misstate the law and to induce staff to breach their legal obligations. The decision to promulgate it was therefore also unlawful.

The July guidance and October guidance were bound to, and did, cause report writers to breach their legal obligations in large numbers of cases. It is not possible to say with certainty what effects this guidance has had in the cases determined while it was in force. But its promulgation may well have resulted in prisoners being released who would not otherwise have been released and in prisoners not being released who would otherwise have been released.

The secretary of state did not consult outside the Ministry of Justice (MOJ) before making rule 2(22). If he had done so, he might have avoided the unedifying confusion which appears to have prevailed within the MOJ and HMPPS about the effect and consequences of rule 2(22). However, there was no statutory obligation to consult and no promise or sufficiently consistent practice of doing so. The failure to consult was therefore not unlawful.

There will be a further hearing at which the court will decide how to proceed. At that hearing, it will also hear further argument on whether a witness who declined to provide a view when asked by the Parole Board to do so would commit contempt of court — and, if so, by what procedure that could be addressed.

Although the legality of the two challenged decisions did not turn on those questions, the court explained, there was a public interest in resolving them.

Update: the judgment includes internal documents disclosed by the Ministry of Justice. This was Antonio Romeo, the permanent secretary, trying to warn Raab off last June. He is referred to as DPM, for deputy prime minister: