R (Roberts) v Parole Board

on appeal from: [2004] EWCA Civ 1031

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Roberts (FC) (Appellant) v. Parole Board (Respondents)

Appellate Committee

Lord Bingham of Cornhill

Counsel

Appellants:	Respondents:
Tim Owen QC	Michael Fordham
Alison Macdonald	(instructed by Treasury Solicitor)

(instructed by Bhatt Murphy)

Interested party
The Secretary of State for the Home Department
James Eadie
Kate Gallafent
(Instructed by Treasury Solicitor)
Interveners
Keir Starmar QC
Eric Metcalfe
(Instructed by Justice)
Hearing dates:
20 and 21 April 2005
ON
THURSDAY 7 JULY 2005

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Roberts (FC) (Appellant) v. Parole Board (Respondents)

[2005] UKHL 45

LORD BINGHAM OF CORNHILL

My Lords,

1. On 12 December 1966 the appellant, Mr Harry Roberts, was convicted on three counts of murder, having pleaded guilty to two counts and been convicted of the third. The victims in each case were police officers, killed in cold blood at Shepherd’s Bush in August 1966 when, in the course of their duty, they stopped a car in which the appellant and two accomplices were travelling to commit an armed robbery. The trial judge rightly described these crimes, which aroused widespread public outrage, as heinous and suggested that the case was one in which the appellant might never be released. He formally recommended that the appellant serve a term of at least 30 years, and in due course the Home Secretary of the day fixed 30 years as the appellant’s punitive or tariff term. That term expired in 1996, when the appellant was aged 60. The fifth review of his case by the Parole Board, still current, began in September 2001, and this appeal concerns the procedure to be followed in that review. The issue to be determined by the House is agreed to be whether the Parole Board, a statutory tribunal of limited jurisdiction, is able, within the powers granted by the Criminal Justice Act 1991, and compatibly with article 5 of the European Convention on Human Rights (a) to withhold material relevant to the appellant’s parole review from the appellant’s legal representatives and (b) instead, to disclose that material to a specially appointed advocate, who would represent the appellant, in the absence of the appellant and his legal representatives, at a closed hearing before the Parole Board.

2. Since the House is called upon to decide issues of statutory construction and legal principle, the detailed facts of the appellant’s case are of minor importance. In 2000, pursuant to a recommendation of the Parole Board in December 1999, the appellant was transferred to an open prison where he was held when the current Parole Board review began in September 2001. On 1 October 2001 a parole dossier was disclosed to the appellant’s solicitors containing a number of reports, all favourable to the appellant and recommending his immediate release on life licence. However, on 2 October 2001 the appellant was removed from open to closed conditions, where he has since remained. The appellant has received a general indication of the allegations against him which led to his removal, but these have not been the subject of any criminal or disciplinary charge, they have not been investigated at any adversarial hearing and they have been consistently challenged by the appellant.

3. On 11 February 2002 the Secretary of State for the Home Department, who appears in this appeal as an interested party, disclosed to the appellant further material that had been submitted by him to the Parole Board for purposes of the parole review. The material related to alleged breaches of trust committed by the appellant while held in open conditions. The appellant was notified on 22 April 2002 that further material was to be withheld from both him and his legal representatives, but would be submitted to the Parole Board (henceforward “t he Board”) for its consideration. It is the treatment of this further material, conveniently described as “the sensitive material”, which gives rise to this appeal. The ground upon which the sensitive material has been withheld is that the safety of the source of the information or evidence would be at risk if the material were to be disclosed. It has not been suggested that there is in this case any threat to national security.

4. In August 2002 the appellant applied for judicial review of the Secretary of State’s decision to withhold from the appellant and his legal representatives material which would be considered by the Board. These proceedings were compromised in October 2002 when it was, in effect, agreed that issues of disclosure should be resolved by the Board and the possible appointment of a specially appointed advocate was envisaged.

5. On 15 November 2002 Scott Baker LJ, as vice-chairman of the Board, decided that before a decision was made on the procedure to be adopted in respect of the sensitive material at the substantive hearing before the Board, that material should in the first instance be disclosed to a specially appointed advocate agreeable to both parties, who could then make representations on the disclosure issues. The sensitive material was not to be disclosed to the appellant or his legal representatives or anyone else without the consent of the Board. Scott Baker LJ proposed that a hearing should then take place to resolve the disclosure issues. He acknowledged that the procedure for appointing special advocates was statutory in other fields but he could see no reason why it should not be used in the present circumstances.

6. With the agreement of the appellant and the Secretary of State, the Attorney General appointed Mr Nicholas Blake QC to act as “independent counsel”, in effect as a special advocate. In an advice written for the Board before seeing the sensitive material Mr Blake advised that resort to the special advocate procedure infringed ordinary standards of fairness. After seeing the sensitive material he submitted to the Board that it be disclosed to the appellant’s solicitor.

7. On 9 May 2003 a hearing took place before Sir Richard Tucker as chairman of the Board’s mandatory lifer panel. The appellant and the Secretary of State were represented, and Mr Blake attended. The hearing consisted of an open session when the appellant’s solicitor made representations on his behalf, and a closed session when submissions were made about the sensitive material by the Secretary of State’s counsel and Mr Blake, in the absence of the appellant and his solicitor. A decision was made by Sir Richard the same day, but complaints about the conduct of the hearing led to a further hearing attended by counsel for the appellant and the Secretary of State on 30 May 2003. In a detailed letter dated 13 June 2003 the Board communicated its decision, which was that the sensitive material should not be disclosed to the appellant or his legal representatives, but should be disclosed to the specially appointed advocate. The Board directed that there should be a two-stage hearing, one considering the open material and the other the sensitive material, the specially appointed advocate appearing at both stages.

8. The judicial review proceedings giving rise to this appeal were initiated to challenge this decision of 13 June. It was agreed that the judge (Maurice Kay J) should read the sensitive material and hear submissions on it in closed session by counsel for the Board and the Secretary of State, and by Mr Blake. There was again a two-stage hearing, one addressed by counsel for the appellant and the other, in the absence of the appellant and his counsel, directed to the sensitive material. The judge delivered two judgments on 19 December 2003. In the first, open, judgment he upheld the lawfulness of the proposed procedure and dismissed the appellant’s application: [2003] EWHC 3120 (Admin), [2004] 2 All ER 776. The second was a closed judgment, not disclosed to the appellant or his legal representatives, but disclosed to Mr Blake who advised the appellant that there was no basis for challenging the findings in the closed judgment on appeal.

9. The appellant challenged the lawfulness of the proposed procedure in principle on appeal to the Court of Appeal. It was agreed between the parties that this challenge did not call for disclosure of the sensitive material to the Court of Appeal, and that material was not placed before the court. For reasons given by Tuckey LJ, with which Clarke LJ and Jackson J agreed, the Court of Appeal dismissed the appellant’s appeal: [2004] EWCA Civ 1031, [2005] QB 410.

10. The House had the benefit of submissions on behalf of the appellant, the Board and the Secretary of State, and also on behalf of JUSTICE which was granted leave to intervene. It received no submissions by Mr Blake or any specially appointed advocate, and did not read or receive submissions on the sensitive material.

11. As a mandatory life sentence prisoner who has served the punitive or tariff term imposed upon him, the appellant has two important rights: a right to be released if and when it is judged that he can safely be released without significant risk to the safety of the public; and a right “to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”. The first of these rights is a product of domestic law, which now provides for the imposition of a punitive or tariff term of imprisonment on convicted murderers, on completion of which (as is now accepted by the Board and the Secretary of State: Girling v Parole Board [2005] EWHC 5469 (Admin), 8 April 2005, para 19) risk to life and limb provides the sole ground for continued detention: R v Lichniak [2002] UKHL 47, [2003] 1 AC 903, paras 8, 29. The second right derives from article 5(4) of the European Convention, which I have quoted above and to which domestic law seeks to give effect. Thus a tariff-expired mandatory life sentence prisoner such as the appellant has a right to bring proceedings to challenge the lawfulness of his continued detention and a right to be released, no matter what the enormity of the crime or crimes for which he was imprisoned, if he is judged to present no continuing threat to the safety of the public.

12. Whether or not it is safe to release a prisoner such as the appellant cannot be ascertained with scientific accuracy. It calls for an exercise of informed and experienced judgment. Under our domestic law, that judgment is entrusted to the Board, which has authority under section 28(5) of the Crime (Sentences) Act 1997 as amended to direct the release of a tariff-expired mandatory life sentence prisoner, but may not do so unless (section 28(6)(b)) it is “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

13. The Board is not in any ordinary sense a court. But it is accepted as being a court for purposes of article 5(4) because, and so long as, it has the essential attributes of a court in performing the function of directing release and other functions not in issue in this appeal. Thus it is independent of the Secretary of State, and the Prison Service and the prisoner: Weeks v United Kingdom (1987) 10 EHRR 293, para 62. It is impartial (Weeks, para 62), in the sense that it decides cases on the material before it without any prejudice or predilection against or for any party. In cases such as the appellant’s oral hearings are now routinely held. The Board is obliged to act in a manner that is procedurally fair (Weeks, para 61), as it is when resolving challenges to revocation of parole licences (R (West) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350, para 1. In contrast with the position which obtained in the past (Weeks, para 64), the Board now has the power to direct the release of a tariff-expired mandatory life sentence prisoner and not merely to advise or make a recommendation to the Secretary of State.

14. It was submitted on behalf of the Board (in an argument adopted and elaborated by the Secretary of State) that the requirement of procedural fairness under article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. This is undoubtedly so. Lord Mustill so held, in an opinion with which the other members of the House agreed, in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 560. The House referred to this passage with approval in R (West) v Parole Board [2005] 1 WLR 350, para 27. The European Court has ruled to similar effect in cases such as Bouamar v Belgium (1987) 11 EHRR 1, para 60 and Chahal v United Kingdom (1996) 23 EHRR 413, para 127. The Board also submitted, again correctly, that decision- making procedures may, so long as they are fair, be adapted to take account of interests other than those of the defendant, prisoner or applicant. This proposition too is vouched by compelling authority. Thus in R v Parole Board, Ex p Watson [1996] 1 WLR 906, 916-919,

the Court of Appeal recognised the paramount duty of the Board to protect innocent members of the public against any significant risk of serious injury, while also recognising the hardship and injustice of continuing to imprison a person who is unlikely to cause serious injury to the public. In Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 704, 707-708, the Privy Council emphasised the need for balance between the rights of the individual and the wider rights of the community, a point repeated in the House in R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, paras 91, 94, 99. In R v H [2004] UKHL 3, [2004] 2 AC 134, para 23, the House acknowledged the need to reconcile an individual defendant’s right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime. In Doorson v Netherlands (1996) 22 EHRR 330, para 70, and again in Van Mechelen v Netherlands (1997) 25 EHRR 647, para 53, the European Court has recognised the life, liberty and security of witnesses as an interest to be taken into consideration. In Tinnelly & Sons Ltd and McElduff v United Kingdom (1998) 27 EHRR 249, para 76, the Court was mindful of national security considerations. In Jasper v United Kingdom (2000) 30 EHRR 441, para 52, it was held that national security and the need to protect witnesses at risk of reprisals must be weighed against the rights of the accused. Thus convention rights are to be applied not in a vacuum but in the world as, for better or worse, it is.

15. In making a decision on the release of a tariff-expired mandatory life sentence prisoner such as the appellant, the Board is not determining a criminal charge: R (West) v Parole Board, above, paras 38-41, 56, 76, 90, 91. The criminal limb of article 6(1) of the Convention is not engaged. It follows that the Board is not bound to follow the procedure which would be required in a criminal trial. But, as was said in R (West) v Parole Board, above, para 35,

“The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”

What is at stake in this instance is, on the one hand, the safety and security, perhaps the life, of a witness, and, on the other, the real possibility that the appellant may remain in prison until he dies. In this case, as in R v H, above, para 33,

“The overriding requirement is that the guiding principles should be respected and observed …. the touchstone is to ascertain what justice requires in the circumstances of the particular case.”

16. The ordinary principle governing the conduct of judicial

enquiries in this country is not, in my opinion, open to doubt. In Re K
(Infants) [1963] Ch 381, 405-406, Upjohn LJ expressed it thus:

“It seems to be fundamental to any judicial inquiry that a person or other properly interested party must have the right to see all the information put before the judge, to comment on it, to challenge it and if needs be to combat it, and to try to establish by contrary evidence that it is wrong. It cannot be withheld from him in whole or in part. If it is so withheld and yet the judge takes such information into account in reaching his conclusion without disclosure to those parties who are properly and naturally vitally concerned, the proceedings cannot be described as judicial.”

On appeal to the House in the same case ([1965] AC 201, Lord Devlin referred at p 237 to “the fundamental principle of justice that the judge should not look at material that the parties before him have not seen”, and at p 238, referring to “the ordinary principles of a judicial inquiry”, he continued:

“They include the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those.”

Lord Mustill, with the agreement of all other members of the House, spoke in similar vein in Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, 603-604, when he described it as

“a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer.”

Later in the same opinion, at p 615, he said:

“It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.”

This principle has been upheld in such domestic cases as R v Parole Board, Ex p Wilson [1992] QB 740, 751, per Taylor LJ (disclosure of reports to the Board), whose reasoning was adopted by the House in Doody, above, p 562, and R v Secretary of State for the Home Department, Ex p Hickey (No 2) [1995] 1 WLR 734, 746 (disclosure of evidence elicited by the Secretary of State following a conviction), where Simon Brown LJ said:

“The guiding principle should always be that sufficient disclosure should be given to enable the petitioner properly to present his best case.”

In dismissing a challenge to special measures directions for the protection of juvenile witnesses in R (D) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393, the House attached importance to the fact that the defendant was able to challenge and cross-examine the witnesses and that the evidence was produced at trial in the presence of the accused, who could see and hear it all: see para 49 of the opinion of Baroness Hale of Richmond, with which all members of the House agreed.

17. The European Court has affirmed the importance of this principle in criminal cases governed by article 6(1) of the Convention, holding that as a general rule all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument,

giving him an adequate and proper opportunity to challenge and question witnesses against him: see, for example, Lamy v Belgium (1989) 11 EHRR 529, para 29; Kostovski v Netherlands (1989) 12 EHRR 434, para 41; Brandstetter v Austria (1991) 15 EHRR 378, paras 66-67; Edwards v United Kingdom (1992) 15 EHRR 417, para 36; Van Mechelen v Netherlands (1997) 25 EHRR 647, para 51; Lucà v Italy (2001) 36 EHRR 807, para 39; Garcia Alva v Germany (2001) 37 EHRR 335, para 39. In non-criminal article 5(4) cases the approach of the Court has been similar, generally requiring disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses: see, for example, Sanchez- Reisse v Switzerland (1986) 9 EHRR 71, para 51; Bouamar v Belgium (1987) 11 EHRR 1, para 60; Weeks v United Kingdom (1987) 10 EHRR 293, para 66; Megyeri v Germany (1992) 15 EHRR 584, para 23; Hussain v United Kingdom (1996) 22 EHRR 1, paras 58-60; Al- Nashif v Bulgaria (2002) 36 EHRR 655, paras 90-98. It is quite true, as the Board insisted in argument, that the Court accepted that these rights were not absolute or incapable of valid qualification. But in Tinnelly and McElduff , above, para 72, the Court pointed out that any limitations must not “restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired”.

18. It is in my opinion plain that the procedure which the Board propose to adopt in resolving the appellant’s parole review will infringe the principles discussed in the foregoing paragraphs. The Board will receive and be free to act on material adverse to the appellant which will not, even in an anonymised or summarised form, be made available to him or his legal representatives. Both he and his legal representatives will be excluded from the hearing when such evidence is given or adduced, denying him and them the opportunity to participate in the hearing, by questioning any witness or challenging any evidence called or adduced to vouch the sensitive material, or by giving or calling evidence to contradict that material, or by addressing argument. The appellant and his legal representatives are free to instruct the specially appointed advocate (whose integrity and skill are not in question) so long as none of them knows anything of the case made against the appellant on the basis of the sensitive material, but the specially appointed advocate is forbidden to communicate with the appellant or his legal representatives once he knows the nature of the case against the appellant based on the sensitive material. It is only at that stage that meaningful instructions can be given, unless the appellant has successfully predicted the nature of the case in advance, in which case he may well have identified the source and undermined the need for secrecy. The Parole Board assert that the specially appointed advocate may call witnesses, and in the absence of any warrant or authority to adopt the specially appointed advocate procedure that may be so. This was not, however, the understanding of the House of Commons Constitutional Affairs Committee (“The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates”, Seventh Report of Session 2004-05, vol 1, HC 323-1, 3 April 2005, para 52(iii)). But even if a specially appointed advocate is free to call witnesses, it is hard to see how he can know who to call or what to ask if he cannot take instructions from the appellant or divulge any of the sensitive material to the witness. In M v Secretary of State for the Home Department [2004] EWCA Civ 324, [2004] 2 All ER 863, the Court of Appeal acknowledged in para 13 that a person appealing to SIAC, in much the same position as the appellant would be under the proposed procedure, was “undoubtedly under a grave disadvantage” and, in para 16, that “To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual’s rights”. In its decision letter challenged in these proceedings the Board realistically accepted that as compared with the appellant’s solicitor a specially appointed advocate would be at a “serious disadvantage” and that adoption of the special advocate procedure would result in prejudice to the appellant. I regard these observations as amply justified. In the vivid language used by Lord Hewart CJ in a very different context in Coles v Odhams Press Ltd [1936] 1 KB 416, 426, the specially-appointed advocate would inevitably be “taking blind shots at a hidden target”.

19. In view of what the European Court in Garcia Alva, above , para 39, called “the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned”, I would doubt whether a decision of the Board adverse to the appellant, based on evidence not disclosed even in outline to him or his legal representatives, which neither he nor they had heard and which neither he nor they had had any opportunity to challenge or rebut, could be held to meet the fundamental duty of procedural fairness required by article 5(4). “It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory”: Stafford v United Kingdom (2002) 35 EHRR 1121, para 68. If the procedure proposed is fully adopted, the appellant’s rights under article 5(4) could be all but valueless. The Secretary of State might have to make the difficult choice between not disclosing information to the Board and ensuring effective protection of its source. But I would decline the appellant’s invi tation to rule, at this stage, that the adoption of the proposed procedure is necessarily incompatible with article 5(4). The practice of the European Court is to consider the proceedings in question as a whole, including the decisions of appellate courts: Edwards v United Kingdom, above, para 34. Thus its judgment is almost necessarily made in retrospect, when there is evidence of what actually happened. This reflects the acute sensitivity of the Court to the facts of a given case. Save where an issue of compatibility turns on a pure question of statutory construction, the House should in my opinion be similarly reluctant to rule without knowing what has actually happened. This seems to me important because there are some outcomes which would not in my opinion offend article 5(4) despite the employment of a specially appointed advocate. It might, for instance, be that the Board, having heard the sensitive material tested by the specially appointed advocate, wholly rejected it. Or having heard the material tested in that way the Board might decline to continue the review unless the sensitive material, or at least the substance of it, were disclosed at least to the appellant’s legal representatives, relying on the Court’s observation in Doorson, above, para 74, that “the Convention does not preclude identification – for the purposes of Article 6(3)(d) – of an accused with his Counsel”. Or the Board might, with the assistance of the specially appointed advocate, devise a way of anonymising, redacting or summarising the sensitive material so as to enable it to be disclosed to the appellant or his legal representatives. Or the Board might, in a manner that was procedurally fair, reach a decision without relying at all on the sensitive material. If any of these possibilities were to eventuate, I do not think there would be a violation of article 5(4).

20. That conclusion makes it necessary to consider the other major question debated in argument, whether the Board has power to adopt this procedure. The Board was first established by section 59 of the Criminal Justice Act 1967, and was continued in existence by section 32 of the Criminal Justice Act 1991, which was in force when the appellant’s current parole review began. Section 32, so far as material and as amended, provided:

“(1)	The Parole Board shall be, by that name, a body corporate and as such shall
(a) be constituted in accordance with this Part; and (b) have the functions conferred ….. by Chapter II of Part II of the Crime (Sentences) Act 1997 (‘Chapter II’) in respect of life prisoners within the meaning of that Chapter.
(4)	The Board shall deal with cases as respects which it gives directions under ….. Chapter II on

consideration of all such evidence as may be

adduced before it.

(5)	Without prejudice to [subsection] ….. (4) above, the Secretary of State may make rules with respect to the proceedings of the Board, including provision authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.
(6)	The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under ….. Chapter II; and in giving any such directions the Secretary of State shall in particular have regard to—
(a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.
(7)	Schedule 5 to this Act shall have effect with respect to the Board.”

Chapter II of the Crime (Sentences) Act 1997 includes section 28, subsection (5) of which now obliges the Secretary of State to release a tariff expired mandatory life sentence prisoner whose release the Board has directed, thus engaging section 32(4) above. Schedule 5 to the 1991 Act provided in para 1(2)(b), under the hearing “Status and capacity”:

“It shall be within the capacity of the Board as a statutory corporation to do such things and enter into such transactions as are incidental to or conducive to the discharge of . . .

“(b) its functions under Chapter II of Part II of the Crime (Sentences) Act 1997 in respect of life prisoners within the meaning of that Chapter.”

Section 32 of and Schedule 5 to the 1991 Act were repealed and replaced by section 239 of and Schedule 19 to the Criminal Justice Act 2003, but it was not suggested in argument that this change had any bearing on the issue to be decided by the House.

21. The House was referred to Parole Board Rules made by the Secretary of State under section 32(5) of the 1991 Act in 1992, 1997 and 2004. The 1992 and 1997 Rules were in very much the same terms, although the 1997 Rules applied to wider classes of life sentence prisoners, and neither applied to mandatory life sentence prisoners until section 28 of the 1997 Act was amended by section 275 of the Criminal Justice Act 2003, which came into force on 18 December 2003. Common to the 1992 and 1997 Rules was a requirement in rule 5(1) to serve relevant information and reports on the prisoner or his representative. But this requirement was qualified by paras (2) and (3):

“(2)	Any part of the information or reports referred to in paragraph (1) which, in the opinion of the Secretary of State, should be withheld from the prisoner on the ground that its disclosure would adversely affect the health or welfare of the prisoner or others, shall be recorded in a separate document and served only on the Board together with the reasons for believing that its disclosure would have that effect.
(3)	Where a document is withheld from the prisoner in accordance with paragraph (2), it shall nevertheless be served as soon as practicable on the prisoner’s representative if he is –
(a) a barrister or solicitor, (b) a registered medical practitioner, or (c) a person whom the chairman of the panel directs is suitable by virtue of his experience or professional qualification;
provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or to any other person without the authority of the chairman of the panel.”

A right to be represented (subject to certain exclusions) was provided in rule 6, and a right for the prisoner to call witnesses and adduce evidence, subject to certain procedural conditions, by rules 7 and 8. The chairman of the panel had power to give directions (rule 9), among them a direction (rule 9(1)(d)):

“as regards any documents which have been received by the Board but which have been withheld from the prisoner in accordance with rule 5(2), whether the disclosure of such documents would adversely affect the health or welfare of the prisoner or others . . .”

There was to be an oral hearing of the prisoner’s case unless otherwise agreed (rule 10) and the hearing was to be at the prison or other institution where the prisoner was detained (rule 12(1). It was provided in rule 13(2) that:

“Subject to this rule, the panel shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings . . .”

This paragraph was subject to paragraph (3) which provided:

“The parties shall be entitled to appear and be heard at the hearing and take such part in the proceedings as the panel thinks proper; and the parties may hear each others’ evidence, put questions to each other, call any witnesses who the Board has authorised to give evidence in accordance with rule 7, and put questions to any witness or other person appearing before the panel.”

Rule 15(2) provided:

“The decision by which the panel determines a case shall be recorded in writing with reasons, signed by the chairman of the panel, and communicated in writing to the parties not more than seven days after the end of the hearing.”

22. The 2004 Rules come into force on 1 August 2004, and are accepted by the appellant as applying to his case, which was referred to the Board again by the Secretary of State on 21 February 2005. In these Rules certain changes were made. Rule 6(2) and (3) reproduce rule 5(2)

and (3) of the 1992 and 1997 Rules, but with some expansion and

qualification:

“(2)	Any part of the information or reports referred to in paragraph (1) which, in the opinion of the Secretary of State, should be withheld from the prisoner on the grounds that its disclosure would adversely affect national security, the prevention of disorder or crime or the health or welfare of the prisoner or others (such withholding being a necessary and proportionate measure in all the circumstances of the case), shall be recorded in a separate document and served only on the Board together with the reasons for believing that its disclosure would have that effect.
(3)	Where a document is withheld from the prisoner in accordance with paragraph (2), it shall, unless the chair of the panel directs otherwise, nevertheless be served as soon as practicable on the prisoner’s representative if he is –
(a) a barrister of solicitor, (b) a registered medical practitioner, or (c) a person whom the chair of the panel directs is suitable by virtue of his experience or professional qualification;
provided that no information disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or to any other person without the consent/authority of the chair of the panel.”

Rule 8, which in part reproduces rule 9 of the earlier rules in relation to the giving of directions, provides in (2)(d) that a direction:

“(d) as regards any documents which have been received by the Board but which have been withheld from the prisoner in accordance with rule 6(2), whether withholding such documents is a necessary and proportionate measure in all the circumstances of the case.”

The prisoner must give notice whether he wishes to attend the hearing (rule 14(3)). Rule 15 entitles him to call witnesses if he obtains leave to do so. Rule 18(1) provides that:

“The hearing shall be held at the prison or other institution where the prisoner is detained, or such other place as the chair of the panel, with the agreement of the Secretary of State, may direct.”

Rule 19(2) and (3) reproduce rules 13(2) and (3) of the earlier rules.
Rule 19(6) is new and provides:

“The chair of the panel may require the prisoner, any witness appearing for the prisoner, or any other person present, to leave the hearing where evidence is being examined which the chair of the panel, in accordance with rule 8(2)(d) (subject to any successful appeal under rule 8(2)), previously directed should be withheld from the prisoner as adversely affecting national security, the prevention of disorder or crime or the health or welfare of the prisoner or others.”

Rule 20, relating to the panel’s decision provides:

“The panel’s decision determining a case shall be recorded in writing with reasons, signed by the chair of the panel, and provided in writing to the parties not more than 7 days after the end of the hearing; the recorded decision with reasons shall only make reference to matters which the Secretary of State has referred to the Board.”

23. A statutory tribunal has such powers as its parent statute confers upon it, whether expressly or impliedly, and no more. Where the power is express, no difficulty should arise. For purposes of implication, the test propounded by Lord Selborne LC in Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473, 478, has been treated as generally applicable, whether to companies, local authorities or statutory corporations. He agreed with James LJ that:

“this doctrine [of ultra vires] ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequent upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.”

Section 111 of the Local Government Act 1972 empowers local authorities to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions. Paragraph 1(2) of Schedule 5 to the 1991 Act, as already noted, empowers the Board to do such things and enter into such transactions as are incidental or conducive to the discharge of its statutory functions.

24. There is nothing in the 1991 Act or the 2003 Act which expressly authorises the Board to hold an oral hearing to review a tariff-expired mandatory life sentence prisoner’s application for parole in a manner that does not accord with the well-known principles of natural justice. There is in particular nothing in either Act which expressly authorises the Board to make a decision adverse to a prisoner without disclosure to the prisoner of the case against him, so that he may answer it if he can; to deny him the benefit of an adversarial hearing; to provide for the exclusion of himself or his legal representative from the hearing; or to adopt a specially appointed advocate procedure. The Board and the Secretary of State did not argue otherwise. Rules made by the Secretary of State under section 32(5) cannot enlarge the powers conferred by the Act. This is trite law, and Mr Owen was right to concentrate his argument on lack of power in the Act and not on the effect of the Rules. But in any event, the 1992 and 1997 Rules do not begin to authorise the steps listed above; nor do the 2004 Rules purport to authorise them, despite some steps in that direction. If, therefore, the taking of those steps are to be justified as within the powers of the Board it must be because they are incidental or conducive to the discharge of the Board’s functions. The Board and the Secretary of State contended that power to take such steps is indeed incidental and conducive to the discharge of the Board’s functions, pointing to the undoubted importance of the Board’s functions in protecting the public against the risk of injury or death and protecting witnesses against the risk of retaliation.

25. There are in my opinion two reasons, each of them independently conclusive, why this argument cannot be accepted. The first depends on the presumption that Parliament does not intend to interfere with the exercise of fundamental rights. It will be understood to do so only if it

does so expressly. In R v Secretary of State for the Home Department,
Ex p Pierson [1998] AC 539, 574 Lord Browne-Wilkinson said:

“Where wide powers of decision-making are conferred by statute, it is presumed that Parliament implicitly requires the decision to be made in accordance with the rules of natural justice: Bennion on Statutory Interpretation, p 737. However widely the power is expressed in the statute, it does not authorise that power to be exercised otherwise than in accordance with fair procedures.”

Lord Steyn spoke to similar effect: pp 587-590. In R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, Lord Hoffmann expressed the point very clearly:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

For reasons given above, the course proposed and so far adopted in the conduct of the appellant’s parole review involves a substantial departure from the standards of procedural fairness which would ordinarily be observed in conducting a review of this kind. It would in my opinion violate the principle of legality, strongly relied on in argument by Mr Owen, and undermine the rule of law itself, if such a departure were to

be justified as incidental or conducive to the discharge of the Board’s
functions.

26. My second reason for rejecting the implication argument is based on the historical record, which demonstrates that the presumption to which I have referred is not a lawyer’s fiction but a practical reality. The procedure formerly adopted for handling deportation challenges raising sensitive questions of national security was finally condemned by the European Court in Chahal v United Kingdom (1996) 23 EHRR 413. In para 131 of its judgment in that case the Court referred with approval to a form of judicial control obtaining in Canada, apparently somewhat analogous to the special advocate procedure (although the Court has suspended judgment on the conformity of that procedure with the Convention: Al-Nashif v Bulgaria (2002) 36 EHRR 655, para 97). Parliament acted on this indication. In response to the judgment the Special Immigration Appeals Commission Act 1997 was enacted to establish the Commission. That Act conferred power on the Lord Chancellor to make rules (section 5(1)) and gave express power in section 5(3) to make rules which would:

“(a)	make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,
(b)	make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,
(c)	make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and
(d)	make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence.”

Such rules were to be made by statutory instrument (section 5(8)) of which a draft was to be laid before and approved by resolution of each House. Seeking the House of Lords’ approval of the first rules made under the Act, the Lord Chancellor acknowledged that the Commission’s procedures departed from what would ordinarily be required to satisfy natural justice: House of Lords Hansard, 29 July 1998, Col 1587. Section 6 of the Act provided for the appointment of special advocates (not so described), who would not be responsible to the person whose interests they were appointed to represent. The Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034), now in force, lay down detailed provisions governing the withholding of material from the applicant and his legal representative (e.g. rules 10(3), 16(3), 37), the appointment and role of special advocates (rules 34-36), the holding of hearings in the absence of the appellant and his legal representative (rule 43), qualification of the appellant’s right to cross-examine opposing witnesses (rule 44(5)) and a qualification of the Commission’s duty to give reasons for its decision (rule 47). Thus whatever the merits of these procedures (which have caused concern to the House of Commons Constitutional Affairs Committee and a number of special advocates, as evidenced by the report referred to in para 18 above, but on which the House is not required to rule in this appeal), it seems clear that they have been authorised by primary legislation and by rules approved in Parliament. Reliance has not been placed on implication to warrant so significant a departure from ordinary standards of procedural fairness.

27. Schedule 3 to the Terrorism Act 2000, governing the Proscribed Organisations Appeal Commission, contained provisions very similar to those already noted in the Special Immigration Appeals Commission Act 1997, including (in paragraph 7) provision for special advocates, and was followed by the Proscribed Organisations Appeal Commission (Procedure) Rules 2001 (S1 2001/443) similar in effect to the SIAC Rules already mentioned. The Race Relations (Amendment) Act 2000, inserted a section directed to national security into the Race Relations Act 1976, and contained express statutory authority to make rules which would exclude a claimant and his representatives from the hearing and for the appointment of a special advocate who would not be responsible to the person whose interests he was appointed to represent. Schedule 6 to the Anti-terrorism, Crime and Security Act 2001, governing the Pathogens Access Appeal Commission, was very closely modelled on that pertaining to proscribed organisations in Schedule 3 to the 2000 Act, containing almost identical provisions. The Pathogens Access Appeal Commission (Procedure) Rules 2002 (S1 2002/1845) were closely modelled on the Proscribed Organisations Rules. Section 80 of the Planning and Compulsory Purchase Act 2004 made special provision for the appointment of a person to represent the interests of any person who would be prevented from hearing or inspecting any evidence at a local inquiry on grounds of national security. Rules made under the section to regulate this procedure were to be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House. The Schedule to the Prevention of Terrorism Act 2005 contains detailed provisions governing the making of procedural rules, varying the ordinary rules of procedural fairness, in the context of control orders. Such rules are required to be laid before Parliament and are to cease to have effect if not approved by a resolution of each House within 40 days of the making of the rules. The Civil Procedure (Amendment No. 2) Rules 2005 (SI 2005/656 (L16)), made on 11 March 2005, contain detailed provisions governing the exclusion of a party and his legal representative from the hearing and the appointment of special advocates.

28. Reference was made in argument to four instances in which there

had been a departure from the ordinary rules of procedural fairness in
Northern Ireland:

(1)	The Northern Ireland (Sentences) Act 1998 provided for

prisoners serving sentences for scheduled offences to apply to Sentence Review Commissioners for early release if they were able to meet certain statutory conditions. By Schedule 2 to the Act the Secretary of State was empowered to make rules which might, among other things, provide for the withholding of evidence about a prisoner, the holding of hearings in the absence of the prisoner and his legal representative and the appointment of a person to represent the prisoner when he and his representative were excluded. Schedule 2 came into force on 28 July 1998 and on 30 July the Secretary of State, acting under the authority of Schedule 2, made the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998 (SI 1998/1859), which contained more detailed provisions to the same effect. Information could be withheld from the prisoner and his representative as a safeguard against dangers which included not only threats to national security but also adverse effects on the health, welfare or safety of any person.

(2)	Section 85(1) of the Northern Ireland Act 1998

empowered Her Majesty by Order in Council to make provision dealing with a number of reserved matters listed in Schedule 3, one of which (para 9(e)) was the treatment of offenders. It was a broad power, extending (section 85(1)(c)) to the amending or repealing of any provision made by or under any Act of Parliament or Northern Ireland legislation. But (section 85(3)) no recommendation might be made to Her Majesty to make an Order in Council under the section unless a draft of the Order had been laid before and approved by resolution of each House of Parliament. In exercise of this power, by the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) Her Majesty in Council made provision for the appointment of Life Sentence Review Commissioners to deal with tariff and release decisions. Schedule 2 to the Order empowered the Secretary of State to make procedural rules, subject to annulment by resolution of either House. Such rules might provide for the withholding of evidence from a prisoner (para 3(e)), the conduct of proceedings in the absence of the prisoner and his legal representative (para 6(1)) and the appointment of a person to represent the interests of the prisoner when he and his representative were excluded (para 6(2)). Pursuant to Schedule 2, the Secretary of State made the Life Sentence Review Commissioners’ Rules 2001 (SR 2001/317), which provided in rule 10(8) for conducting parts of the hearing in the absence of the prisoner and his legal representative, in rule 15(2) for the withholding from the prisoner and his legal representative of any information certified by the Secretary of State to be confidential, as defined, and in rule 16(2) for the appointment of a special advocate to represent the interests of the prisoner.

(3)	The Northern Ireland (Remission of Sentences) Act 1995

came into force on 17 November 1995 (SI 1995/2945) and was significantly amended by the Terrorism Act 2000. Section 1(3) of the 1995 Act empowered the Secretary of State to revoke the licence of a person released from prison in specified circumstances

“if it appears to him that the person’s continued liberty would present a risk to the safety of others or that he is likely to commit further offences; and a person whose licence is revoked shall be detained in pursuance of his sentence and, if at large, be deemed to be unlawfully at large.”

A person whose licence was revoked was entitled under section 1(4) to make representations in writing to the Secretary of State about the revocation and to be informed as soon as practicable of the reasons for the revocation and of his right to make representations. There was no provision in the statute enabling the person whose licence had been revoked to seek a review of the lawfulness of his detention by any independent court or tribunal, and section 1(3) and (4) was plainly incompatible with article 5(4) of the Convention: see for example Waite v United Kingdom (2002) 36 EHRR 1001. This decision was made on 10 December 2002. On 13 January 2003 the Secretary of State issued a “Written Statement” in which he stated:

“I have put in place additional safeguards for persons, whose licences are revoked. These include the appointment of independent Commissioners, who hold or have held judicial office, to consider and advise me upon any representations made by recalled prisoners. I will also make available funds to meet the reasonable legal expenses of prisoners in connection with making such representations whether in writing or at any oral hearing the Commissioners may decide is necessary. Further details of the procedures and how they will operate will be placed in the libraries of both Houses.”

Annexed to this document was a note listing the additional safeguards the Secretary of State would apply. This provided that the Commissioner would decide the procedure for dealing with any representations, subject to paragraphs 5 and 6 which read:

“5. Where the Secretary of State certifies any information as ‘damaging information’ (as defined in Rule 22(1) of the Northern Ireland (Sentences) Act 1998 (Sentence Review Commissioners) Rules 1998), the Commissioner shall not in any circumstances disclose it to the prisoner, his legal representative or any other person except any special advocate appointed by the Attorney General to safeguard the interests of the prisoner. A special advocate shall not disclose the damaging information to anyone.

6. The prisoner, his legal representative and any witness appearing for him shall be excluded from any oral hearing whilst evidence is being examined or argument is being heard relating to ‘damaging information’.

These paragraphs were supplemented by paragraphs 7-9:

“7. A special advocate may communicate with the prisoner he has been appointed to represent at any time before the Secretary of State makes ‘damaging information’ available to him.
8. At any time after the Secretary of State has made ‘damaging information’ available to him, a special advocate may seek direction from the Commissioner authorising him to seek information in connection with the proceedings from the prisoner.

9. Where information has been certified as ‘damaging information’ the Secretary of State shall, within such period as the Commissioner may determine, give to the Commissioner and to the prisoner a paper setting out the gist of the damaging information insofar as he considers it possible to do so without causing damages of the kind referred to in Rule 22(1) of the 1998 Rules.”

(4)	Section 24(1)(c) of the Northern Ireland Act 1998

provided that a minister or department of the Northern Ireland government should have no power to do anything which discriminated against a person or class of person on the ground of religious belief or political opinion. Section 76 of the Act, applying to public authorities, was to similar effect, although expressly conferring a right of action. Where a person claimed to be a victim of discrimination in contravention of section 24 or 76, it was open to the person against whom the claim was made to propose to rely (section 90(1)(b) of the Act) on a certificate purporting to be signed by or on behalf of the Secretary of State certifying

“(i)	that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and
(ii)	that the doing of the act was justified by that purpose.”

A claimant might appeal against the certificate to a Tribunal established under section 91, in accordance with rules made by the Lord Chancellor (section 90(2)), which might uphold or quash the certificate (section 90(3)). Section 91(1) established the Tribunal and section 91(2)-(6) governed the Lord Chancellor’s rule-making power. It was specifically enacted that rules might provide for the withholding of information from the claimant, for the conduct of proceedings in the absence of the claimant and his legal representative and for regulating the functions of persons who might be appointed to represent the interests of the claimant when he and his legal representative were excluded (subsections 4(a), 4(b) and 4(c)). Power to appoint such persons was conferred on the Attorney General for Northern Ireland by subsection (7). In exercise of his rule-making power, the Lord Chancellor made the Northern Ireland Act Tribunal (Procedure) Rules 1999 (SI 1999/2131), which were laid before and approved by resolution of each House as required by section 96(6) of the 1998 Act. These rules made provision for the appointment of special advocates (rule 9), the withholding of information from the claimant (rules 10 and 11), the exclusion of the claimant and his legal representative from the hearing (rule 18) and the issue of incomplete reasons (rule 22).

29. The first, second and fourth of these Northern Irish instances are consistent with the legislative practice adopted in Great Britain, as briefly summarised in paras 26-27 above. The third instance is different, and the Parole Board placed strong reliance on it. But the 1995 Act provided for revocation decisions to be made by the executive, without any provision for judicial review of the revocation decision or any provision for an adversarial hearing. It was blatantly incompatible with the Convention, and the safeguards introduced by the Secretary of State were an attempt to rescue it. By providing for the possibility of oral hearings and for special advocates the Secretary of State effected an improvement on the procedure which had hitherto prevailed. But it would in my opinion be very dangerous to draw any inference from a procedure devised to meet an emergency, in the absence (unlike all the other examples considered) of any express statutory authority or rule- making power, the lawfulness of which may well be open to question (although, in the absence of argument, I express no opinion on the point).

30. The examples considered above show plainly that Parliament in practice observes the principle of legality. If it intends that a tribunal shall have power to depart from the ordinary rules of procedural fairness, it legislates to confer such power in clear and express terms and it requires that subordinate legislation regulating such departures should be the subject of Parliamentary control. It follows this practice even when the security of the nation is potentially at stake. Reference to Hansard shows that measures of this kind have repeatedly been the subject of anxious and detailed debate. It is in my opinion contrary to legal principle and good democratic practice to read such a power into a statute which contains no hint whatever that Parliament intended or even contemplated such a departure. Had it done so, as in the other cases considered, the departure would have been carefully defined and controlled. It is nothing to the point to argue that if damaging adverse evidence is withheld from a prisoner and his legal representative he is better off with the limited help given by a specially appointed advocate than without it, unless there is lawful authority to conduct the hearing while withholding such evidence from the prisoner, which in the present context there is not.

31. The Board and the Secretary of State gain no support for the contrary proposition from three cases cited in argument: Secretary of State for the Home Department v Rehman [2003] 1 AC 153; R v Shayler [2002] UKHL 11, [2003] 1 AC 247; and R v H [2004] UKHL 3, [2004] 2 AC 134. In the first of these cases, an appeal from SIAC, in which a special advocate had appeared, the Court of Appeal received written submissions from a special advocate: see paras 31-32. It was clearly within the inherent power of the court to do so to make the appeal effective. There could scarcely have been a meaningful appeal had the Court of Appeal not been able to put itself in the same position as SIAC. In the second, the House contemplated use of a special advocate if a former member of a security service were to seek judicial review of a refusal of permission to publish. This also would be within the inherent power of the court if the object of the proceedings was not to be frustrated, and the context under consideration was far removed from one in which a tariff-expired mandatory life sentence prisoner faces the prospect of lifelong incarceration for reasons not communicated to him or his legal representative. In the third of the cases the House held that a special advocate might, exceptionally, be appointed in a criminal case to help resolve an issue whether a trial could be fairly conducted if material, favourable to the defendant, were not disclosed to him. It was not suggested or contemplated that any part of the prosecution case against the defendant could be properly withheld from the defendant and his legal representative, a consideration which distinguishes that case from the present.

32. In my opinion the procedural course proposed in the Board’s

decision letter of 13 June 2003 was one it had no power to adopt. I
would accordingly allow the appeal and quash that decision.

LORD WOOLF

My Lords,

Background

33. I have found it especially helpful in this case to have had the

opportunity to read the speeches of my noble and learned friends in
draft.

34. The issue which we are required to determine is identified in the agreed statement of facts and issues in these terms:

“Whether the Parole Board, a statutory tribunal of limited jurisdiction, is able, within the powers granted by the Criminal Justice Act 1991, and compatibly with article 5 of the European Convention on Human Rights (‘the Convention’):

(a)	to withhold material relevant to [the appellant’s] parole review from [his legal representatives] and
(b)	instead, to disclose that material to a specially appointed advocate (‘SAA’), who will represent [the appellant], in [his] absence, at a closed hearing before the Board.”

35. That issue is one of principle and not confined to the facts of this case; it was so treated before the Court of Appeal (as para 18 of the agreed statement of facts and issues records) and it has been so argued before us. It is therefore not necessary for me to refer to the facts of this case and I do not purport to do so. I am content to adopt the summaries which are set out in the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Carswell. However, the fact that we are dealing with the issue as a matter of principle means that our decision has wide implications for how the Board performs its functions and its ability to perform its statutory role. That statutory role is one which is already of considerable significance within the criminal justice system, a significance which will be increased because of the new sentences of life imprisonment, detention for life and detention for public protection in relation to serious offences created by Chapter 5 of the Criminal Justice Act 2003. In addition it means that while I am able to set out my views on the issues of principle I am unable to say what effect those views will have on the appellant’s rights. This will probably only be able to be determined during or after the hearing on the facts by the Board, as to the merits, on whether the appellant should be released on licence.

36. In order to perform its role, to which I will refer later, the Board is dependent upon the information with which it is provided. It has no power to compel witnesses to attend its hearings but it can invoke the assistance of the High Court for this purpose. However, this residual power of compulsion does not assist in those cases where it is desirable that it receives the information, but the information will only be provided if it can be made available to the Board in circumstances in which its sources can be confident that their identity will be protected from disclosure.

37. That the Board should be able to perform its functions effectively is particularly important in the case of those who are sentenced to life imprisonment, whether the sentence of life imprisonment is discretionary or mandatory. In these cases, a period is now identified by the sentencing judge which is the minimum period to be served by way of punishment and deterrence. The sentencing judge does not need to consider the question of future risk to the public because this is dealt with by the Parole Board when the question of the release of the prisoner on licence comes to be considered after the prisoner has served the minimum term. At the time the appellant was sentenced in September 1966 the position was very different because, although at that time the Secretary of State would take into account the views of the Chief Justice and the trial judge as to the period to be served as a punishment and by way of deterrence, the sentence was still regarded as actually one of life imprisonment and release on licence was a matter of discretion for the Secretary of State alone.

38. In the very different situation that exists to day, it is desirable for the question of risk to be considered by the Parole Board rather than the sentencing judge. The Board should be in a position to know all the relevant information about the progress that the prisoner has made during his sentence. In addition, in some situations, the risk that will exist could relate to circumstances that did not exist at the time of sentence. However, both from the point of view of the prisoner and from that of the public, whom the Board is intended to protect, it is critical that the Board, whenever possible, is aware of any relevant information before it reaches its decision to release a prisoner on licence.

39. If this appeal is allowed this could affect the ability of the Board to perform its functions in future. In addition, the decision could affect the powers of other administrative bodies that determine issues that impact upon the rights of the individual, at least where those administrative bodies are subject to procedural rules made under statute. I draw attention to this aspect of this appeal since it justifies my reiterating well established basic principles of administrative law.

40. The principles have been set out in many cases of high authority, with greater elegance, but I would summarise them as follows:

(i)          An administrative body is required to act fairly when reaching a decision which could adversely affect those who are the subject of the decision.

(ii)        This requirement of fairness is not fixed and its content depends upon all the circumstances and, in particular, the nature of the decision which the body is required to make.

(iii)      The obligation of fairness to which I refer can be confined by legislation and, in particular, by rules of procedure, provided that the language used makes its effect clear and, in the case of the secondary legislation, it does not contravene the provisions of the Convention (in the context of the present appeal, this means article 5(4) as it is accepted article 6 has no application).

41. A case which considers these principles in the context of a criminal trial, where the responsibility rests not upon an administrative body but a court, is R v H [2004] 2 AC 134. In that case, the defendants had been charged with others with conspiracy to supply a Class A drug. At a preparatory hearing the Crown sought a ruling as to whether material could be withheld from disclosure to the defence on the ground of public interest immunity (“PII”). The judge ruled that the hearing should not be conducted in open court in the presence of the defendants and that a special independent advocate (“SAA”) should be appointed to introduce an adversarial element into the hearing. This was done to avoid a violation of article 6 of the Convention. It was decided that the appointment of a special counsel to represent a defendant as an advocate on such an application might, in an exceptional case, be necessary in the interests of justice, but such an appointment should not be ordered unless and until the trial judge is satisfied that no other course would adequately meet the overriding requirement of fairness to the defendant. My noble and learned friend Lord Bingham of Cornhill in giving the opinion of the Committee made the following important statements of principle which are of relevance to the different context in which the Board operates:

“11. Fairness is a constantly evolving concept…it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.

12. … The European Court has repeatedly recognised that individual rights should not be treated as if enjoyed in a vacuum: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, 191, para 52. As Lord Hope of Craighead pointed out in Montgomery v H M Advocate [2003] 1 AC 641, 673:

‘the rule of law lies at the heart of the Convention. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasbourg court has taken to the question whether there are sufficient safeguards recognises this fact.’

13. The institutions and procedures established to ensure that a criminal trial is fair vary almost infinitely from one jurisdiction to another, the product, no doubt of historical, cultural and legal tradition…
18. Circumstances may arise in which material held by the prosecution and tending to undermine the prosecution or assist the defence cannot be disclosed to the defence, fully or even at all, without the risk of serious prejudice to an important public interest. The public interest most regularly engaged is that in the effective investigation and prosecution of serious crime, which may involve resort to informers and undercover agents, or the use of scientific or operational techniques (such as surveillance) which cannot be disclosed without exposing individuals to the risk of personal injury or jeopardising the success of future operations. In such circumstances some derogation from the golden rule of full disclosure may be justified but such derogation must always be the minimum derogation necessary to protect the public interest in question and must never imperil the overall fairness of the trial…

22. There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems…Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the

trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant…

23. The problem of reconciling an individual defendant’s right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. It is not surprising that complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of our domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively: Klass v Federal Republic of Germany (1978) 2 EHRR 214, 232, para 48… 32. The appellants contended that, taken at its narrowest, the principle established by Edwards and Lewis is that it is incompatible with article 6 for a judge to rule on a claim to PII in the absence of adversarial argument on behalf of the accused where the material which the prosecution is seeking to withhold is, or may be, relevant to a disputed issue of fact which the judge has to decide in order to rule on an application which will effectively determine the outcome of the proceedings. It was argued that the Edwards and Lewis principle applies wherever the defence rely on entrapment to stay the proceedings or exclude evidence, but does not apply to entrapment only and is not confined to determinative rulings. It was howe ver acknowledged that there is no absolute rule which requires the appointment of special counsel in any particular kind of case.

33. These submissions, in our opinion, seek to place the trial judge in a straitjacket. The consistent practice of the court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, but to avoid laying down rigid or inflexible rules. There is no doubt as to the principles to be applied – the more important have been identified in earlier paragraphs of this opinion – and there is no dissonance between the principles of domestic law and those recognised in the Convention jurisprudence. It is entirely contrary to the trend of Strasbourg decision-making to hold that in a certain class of case or when a certain kind of decision has to be made a prescribed procedure must always be followed. The overriding requirement is that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone is to ascertain what justice requires in the circumstances of the particular case.”

42. The position of a person who is being considered for release on licence, as I have indicated, is not identical to that of a defendant in a criminal trial which was being considered in H. However, these statements could be even more apposite in the case of the Board. I have already indicated that article 6 does not apply to the Board’s role. Furthermore, although the decision of the Board is of the greatest importance to a prisoner, the prisoner has inevitably already been found or pleaded guilty, and in the case of a prisoner sentenced to life imprisonment, the offence would have been a grave crime. Furthermore, any decision to find an offender guilty is a once and for all decision, but in the case of a decision of the Board, the decision can always be changed with the passage of time. Finally, the task of the court is to determine the guilt or innocence of a defendant, while the task of the Board is to determine whether it is safe for the prisoner to be released.

43. Based on Lord Bingham’s approach it can therefore be accepted when determining the outcome of the issue that fairness is a “constantly evolving concept”. Provision has to be made when it is necessary for derogation from the golden rule of full disclosure but the derogation must be the minimum necessary to protect the public interest. When there has to be derogation there can be cases in which the appointment of a SAA is, in the interests of justice, advantageous. The European Court of Human Rights (“ECtHR”) has accepted that some operations “must be conducted secretly if they are to be conducted effectively”. Finally, there is the fact that the trial judge should not be placed in a straitjacket. Instead the decision sets out principles and indicates those principles should be applied on a case by case basis: “in the infinitely diverse situations with which trial judges have to deal,…the touchstone is to ascertain what justice requires in the circumstances of the particular case”. These points are all highly relevant to the determination of the issue.

44. The other point to which it is worth drawing attention from the different context of the criminal trial is that the evolving practice of the criminal courts with regard to non-disclosure because of PII, was, as in the case of the Board, until relatively recently, not dealt with specifically in legislation or the subject of rules. It arose out of the decisions of courts. It was not dependent on the inherent jurisdiction of the courts. Instead it existed because it is a characteristic of courts (shared by tribunals) whether created by statute or by common law that they are masters of their own procedure subject to any limitation imposed by legislation. For courts, there is now a legislative framework. This is provided by the Crown Court (Criminal Procedure and Investigations Act 1996 (Disclosure)) Rules 1997 (SI 1997/698 (L4))which came into force in April 1997. There is also a legislative framework for the Board.

The Board’s Statutory Framework

45. The changed statutory context in which the Board now decides the date on which a life sentence prisoner is released is provided by the Crime (Sentences) Act 1997 (“the 1997 Act”). The 1997 Act provides the regime under which both mandatory and discretionary prisoners are released. Section 28 contains the duty to release. It provides, so far as relevant:

“(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner’s sentence is a reference to the part of the sentence specified in the order.

(5)	As soon as-
(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and (b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6)	The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless –
(a) the Secretary of State has referred the prisoner’s case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(7)	A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –
(a) after he has served the relevant part of his sentence; and (b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and (c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence…”

46. Section 28(6) sets out clearly the nature of the Board’s “responsibility”. In exercising that responsibility, the Board is required to make a practical judgment, “balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public” (if this is the case) “against the need to protect the public…In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance, the board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury” (R v Parole Board, Ex p Watson [1996] 1 WLR 906, 916-917 per Sir Thomas Bingham MR). Obviously, as emphasised in R (West) v Parole Board [2005] 1WLR 350, the prisoner should, therefore, “have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society”.

47. This is particularly important because so far as the Board is concerned, the position is clear: a prisoner can only be released on licence if the Board is satisfied that it is no longer necessary for him to be confined. In expressing the matter in that way, I am not intending to depart from Lord Bingham’s statement in R v Lichniak [2003] 1 AC 903, 913 para 16 that he doubted “whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment”. While that is correct, the Board has still to decide whether “it is no longer necessary… that the prisoner should be confined”.

48. It is next necessary to refer to the power, not of the Board but of the Home Secretary, to make rules relating to the procedure to be employed by the Board when conducting a hearing. However, before considering the rules, it is important to emphasise that even if there were no rules, made either by the Home Secretary or the Board, the Board would undoubtedly have the responsibility to reconcile so far as it can, what Lord Carswell rightly describes as a triangulation of interests: the Board’s obligations to the prisoner and its obligation to protect society and, as part of the latter obligation, its obligation to protect third parties so far as it is practical to do so having regard to the Board’s other responsibilities. Procedural rules cannot be devised that anticipate all the situations that can arise where a tribunal has to exercise its discretion to determine its own procedure in order to reconcile conflicting interests of the nature to which I have just referred.

120. The appellant’s case was referred to the Parole Board by the Secretary of State in May 2002 and he was interviewed by a member of the Board on 6 June 2002. He then brought an application for judicial review, which was concluded by a consent order dated 18 October 2002 whereby the appellant and the Secretary of State agreed on a procedure for dealing with the sensitive material. Although it referred to the appointment of an SAA as a possible procedure, the consent did not extend to agreement on the part of the appellant that it should be adopted. The Vice-Chairman of the Parole Board Scott Baker LJ considered the matter and recommended on 15 November 2002 that an SAA should be appointed, the sensitive material should be disclosed to him and a hearing should take place before the legal chairman of the panel to discuss procedure and receive representations.

121. That hearing took place on 30 May 2003, when the chairman of the panel Sir Richard Tucker presided and representatives of the Secretary of State, the Prison Service and the appellant were present, including counsel, together with the SAA Mr Nicholas Blake QC. Mr Blake had been appointed as recommended by Scott Baker LJ and took part in directions hearings on 9 May and 30 May 2003. He had also furnished an opinion in February 2003, in which he advised, after seeing the sensitive material, that consideration be given to disclosing it to counsel nominated by the appellant’s solicitor, who would be subject to the restrictions contained in the Parole Board Rules forbidding disclosure to the prisoner or any other person without the consent or authority of the chair of the panel. This advice was not accepted and the matter remained to be considered at the hearing on 30 May 2003.

122.     At the directions hearing on 9 May 2003 the chairman made the

following findings:

“i)	with regard to the ‘sensitive material’ contained in section C of the dossier, the fears of the source or sources are genuine and held on reasonable grounds

(reference para 11 of Ms Kaufmann’s skeleton argument

of 7 May 2003);

ii)	if full disclosure of section C were to be made to Mr Roberts, there would be a real risk to the safety of the source or sources (para 12 of Ms Kaufmann’s skeleton argument);
iii)	in making directions on disclosure, the Board must balance the interests of the various parties involved. These are:
a) the public – the Board’s ultimate purpose is to protect the public. Moreover, it is important that all judicial decisions are made on the basis of the broadest information available; b) the prisoner – the prisoner has the right to proper representation and examination of the evidence. This is not, however, an absolute right. The Parole Board Rules, while not specifically applicable to mandatory lifers, but issued in line with the application of Article 5(4) of the ECHR to other categories of life sentence prisoners, acknowledge that the public interest may restrict the prisoner’s right in this respect (reference rule 5 [of the Parole Board Rules 1997]); c) the source or sources of the ‘sensitive material’ - these parties have the right under articles 2 and 3 of the ECHR, and under common law, to protection.”

The three interests concerned have been referred to throughout this case as the “triangulation of interests”.

123. Following the hearing on 30 May 2003 the Parole Board notified the appellant’s solicitors by letter dated 13 June 2003 that it considered that the balance of interests was firmly in favour of the appointment of an SAA to represent the appellant in relation to the sensitive material. Disclosure of that material would be made only to him and not to the appellant or his legal representatives. The directions did not spell out what Mr Blake was to do but, as Tuckey LJ set out in paragraph 7 of his judgment in the Court of Appeal [2005] QB 410, 415:

“It is common ground that it was intended that he would perform the same functions and be subject to the same restrictions as a special advocate appointed under the Special Immigration Appeals Commission (Procedure Rules) 1998 (SI 1998/1881). Thus he was required to represent the interest of the [appellant] by making submissions to the board at any closed hearings, cross examine witnesses at any such hearing and make written submissions to the board. In performing these functions he was not to disclose any sensitive material to or obtain instructions from the prisoner or his representatives, although they could and had provided him with as much information about the case as possible.”

124. The appellant then commenced the proceedings for judicial review of the Parole Board’s decision of 13 June 2003 which are before the House. The matter came before Maurice Kay J, who heard argument both on the principle of appointing an SAA and, in closed session at which he considered the sensitive material, on the issue whether it was appropriate in the case before him. He gave a written judgment on 19 December 2003 [2003] EWHC 3120 (Admin), [2004] 2 All ER 776, on the “open” matters, dismissing the application. He gave a separate judgment on the “closed” matters, but this has not been the subject of appeal and the House has not seen or considered any of the sensitive material or heard any argument based upon it.

125. When the appeal came before the Court of Appeal it was confined to a point of principle, the contention that it was not open to the Parole Board to adopt the procedure of appointing an SAA. By a judgment dated 28 July 2004 [2004] EWCA Civ 1031, [2005] QB 410 the court dismissed the appeal. Tuckey LJ, with whom the other members agreed, held that the Parole Board had power to adopt the SAA procedure, notwithstanding the absence of specific provision in the Rules. He did not accept the appellant’s argument that if there was such power its exercise was confined to cases involving national security. He also held that adoption of the SAA procedure did not in principle infringe proper standards of fairness and did not involve a breach of article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It was therefore open to the Parole Board to adopt it in a suitable case, though he agreed with the judge that such a solution should only be adopted in exceptional circumstances and should not become the norm.

126. It is undeniable that to have material withheld from his legal representatives as well as himself and to have his interests represented only by an SAA is a substantial handicap to a prisoner in a hearing before the Parole Board. Lord Woolf in para 60 of his opinion justifiably described the disadvantages of being left in ignorance of the case against him as grave, repeating the epithet which he used in M v Secretary of State for the Home Department [2004] 2 All ER 863 when describing the problems facing appellants before the SIAC. I would not seek in any way to minimise those disadvantages. A prisoner against whom unfounded allegations have been made is in a Kafka-esque situation, as my noble and learned friend Lord Steyn has graphically indicated. He may be altogether in the dark about the allegations made and unable to divine what they may be and give instructions about rebutting them. The SAA is necessarily limited in the steps which he can take to challenge them, bearing in mind his inability to take instructions from the prisoner. The difficulties faced by SAAs were authoritatively described in the written evidence given by a number of SIAC special advocates to the House of Commons Constitutional Affairs Committee:

“Special Advocates can identify (by cross-examination and submissions) any respects in which the allegations made by the Home Secretary are unsupported by the evidence relied upon and check the Home Secretary’s evidence for inconsistencies. But Special Advocates have no means of knowing whether the appellant has an answer to any particular closed allegation, except insofar as the appellant has been given the gist of the allegation and has chosen to answer it. Yet the system does not require the Secretary of State necessarily to provide even a gist of the important parts of the case against the appellants in the open case which is provided to the appellants. In these situations, the Special Advocates have no means of pursuing or deploying evidence in reply. If they put forward a positive case in response to the closed allegations, that positive case is inevitably based on conjecture. They have no way of knowing whether it is the case that the appellant himself would wish to advance. The inability to take instructions on the closed material fundamentally limits the extent to which the Special Advocates can play a meaningful part in any appeal.” (Seventh Report of Session 2004-2005, HC 323-II, Ev 55, para 10).

Other practical difficulties involved in the use of SAAs were outlined by Lord Bingham of Cornhill in para 22 of his opinion in R v H [2004] 2 AC 134.

127. Against that one has to set the risks to the informant if the material is disclosed. I have little doubt that the fears entertained by an informant confined in prison of dangerous and unpleasant consequences if it were discovered that he had given information about the nefarious activities of fellow prisoners are very real. Unlike persons who are free to move about in ordinary society, he is very limited in the actions he can take to protect himself. Prisoners who did not wish their activities to be exposed would undoubtedly make considerable efforts to find out who had given information, if they received the slightest inkling that this had occurred. This factor provides the reason for the restrictive rules under which SAAs have to work. Even though the prisoner’s legal representatives may be of the highest integrity – and it should be emphasised that the integrity of the appellant’s advisers is unquestioned – their inquiries of their client, however carefully and skilfully conducted, may well give him or his associates sufficient information for them to make a serviceable guess at the source of the information on which the allegations are based.

128. The third element in the triangulation of interests is the public interest in the performance by the Parole Board of its function of deciding whether it is safe to release prisoners who have been imprisoned for grave crimes, a matter which is one of serious public concern and the subject of anxious consideration by the Board. And as Sir Thomas Bingham MR observed in R v Parole Board, Ex parte Watson [1996] 1 WLR 906, 916-917,

“ … in the final balance, the board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury.”

129. Before your Lordships’ House Mr Owen QC for the appellant focused on two issues, the Board’s power to adopt the SAA procedure and the contention that to do so would constitute a breach of article 5(4). Lord Woolf has set out in paras 64 et seq of his opinion the core submissions advanced by Mr Owen and I need not repeat them. I agree with his conclusions on each of these submissions and I shall express my opinion on the issues in fairly brief compass.

130. It was submitted on behalf of the appellant that in the absence of specific statutory authority the Parole Board did not have power to adopt the SAA procedure. Mr Owen contrasted the Board with other tribunals which had been given such specific power (for a review of a number of such tribunals: see R v H [2004] 2 AC 134 at para 21, per Lord Bingham of Cornhill).

131. It was argued on behalf of the Parole Board that the power to appoint an SAA arose by necessary implication from its functions, as specified by or derived from the terms of the Criminal Justice Act 1991 and the Crimes (Sentences) Act 1997. That may well be correct, although the test of necessary implication is demanding. It seems to me, however, that the Board can more simply and easily satisfy the test contained in para 1(2) of Schedule 5 to the 1991 Act, which provides that it is within its capacity to do such things as are “incidental to or conducive to the discharge of its functions.” The functions of the Board are to assess whether it is safe to release offenders or whether they would constitute a danger to the public if set free from prison. In order to discharge these functions it is essential that it has before it all material information necessary for determination of that issue of public safety. If the only effective way to get that information from reluctant informants is to use the SAA procedure, then I consider that the use of that procedure incidental to or conducive to the discharge of its functions.

132. This conclusion is reinforced by the point made both by Tuckey LJ at para 29 of his judgment and by Lord Woolf in several places in his opinion, that the Parole Board has power to withhold material altogether from the prisoner and his representatives. That power is now specifically conferred by rule 6 of the Parole Board Rules 2004, but probably existed by necessary implication under earlier rules: see para 56 of Lord Woolf’s opinion. The use of the SAA procedure is in these circumstances a mitigation to some extent of the considerable disadvantage which the prisoner would suffer if the material were altogether withheld.

133. Mr Owen argued as a fallback position that if it were held that the Parole Board has power to use the SAA procedure, it should be confined to cases where protection of the information is necessary in the interests of national security. He pointed to other instances in which statutory power was conferred to use the SAA procedure, but only for that purpose. The context of the work of most of these, eg the Special Immigration Appeals Commission and the Pathogens Access Appeal Commission, is such that information affecting national security is the only sort of sensitive material likely to be considered by them. It is therefore not remarkable that the power to use the SAA procedure is specifically directed towards such information.

134. It is notable that the authority of several bodies in Northern Ireland to use the SAA procedure is wider, and for reasons which apply mutatis mutandis to the Parole Board. The three bodies in question are the Sentence Review Commissioners appointed under the Northern Ireland (Sentences) Act 1998, the Life Sentence Review Commissioners appointed under the Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564) and the Commissioner appointed to advise the Secretary of State in the discharge of his functions under the Northern Ireland (Remission of Sentences) Act 1995. The Rules made under the 1998 Act, in pursuance of which the Sentence Review Commissioners have the function of considering the early release of persons imprisoned for terrorist offences, provide for the withholding of “damaging information” and the appointment of an SAA. One of the heads of damaging information is information whose disclosure would be likely to “adversely affect the health, welfare or safety of the person concerned or any other person.” The Life Sentence Review Commissioners have the duty of considering the release of prisoners sentenced to life imprisonment, in the same way as the Parole Board in England and Wales. The Rules made under the 2001 Order provide for withholding of certified “confidential information” and the appointment of an SAA. Confidential information is defined as including material whose disclosure would affect the safety of any individual. Finally, the Secretary of State adopted safeguards for the discharge of his duty under the 1995 Act of considering the recall of prisoners released from prison on licence. The Commissioner appointed to advise him is not to reveal to the prisoner any information certified by the Secretary of State as “damaging information” within the meaning of the Rules made under the Northern Ireland (Sentences) Act 1998, and provision is made for the appointment of an SAA. I do not think that it is possible to draw from these examples the conclusions which Mr Owen seeks to draw; on the contrary, the example of the several sets of Northern Ireland provisions shows that a wider range of sensitive material can in a suitable case be brought before a tribunal. The Parole Board regularly has such cases in the course of its work and in my view a restriction to national security has no foundation in principle or practice.

135. The second major issue argued on behalf of the appellant was the compatibility with the Convention of the use of the SAA procedure by the Parole Board, which as a public authority is required by section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right. The right in question is contained in article 5(4), which provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

It was common case that this provision was engaged. A prisoner whose tariff period has expired is entitled to have his continued detention decided by a “court”, and for these purposes the Parole Board has the essential features of a court. An adversarial procedure involving oral representation and the opportunity to call and question witnesses is required: Hussain v United Kingdom (1996) 22 EHRR 1.

136. The submission advanced on behalf of the appellant was that the use of an SAA imposed such grave disadvantages upon him that the Parole Board’s procedure did not satisfy the requirements of fairness which would make it compatible with article 5(4). Mr Owen did not contend, however, that the power under the Parole Board Rules to withhold material altogether was incompatible. In support of this submission he cited a number of decisions in which it was held that complainants did not have a hearing compatible with the requirements of article 5(4) when deprived of access to documentation material to the case.

137. Mr Owen relied on several cases decided by the European Court of Human Rights in which it was held that the inability to challenge the prosecution case in various respects constituted a breach of article 5(4). In Lamy v Belgium (1989) 11 EHRR 529 when the complainant, who had been arrested on charges relating to his bankruptcy and detained on remand, sought to challenge the detention, the Indictments Chamber of the Court of Appeal relied in rejecting his appeal on two material documents which were not communicated to the complainant. The Court held that access to the documents was essential, that there had been inequality of arms, the procedure was not truly adversarial and there was accordingly a breach of article 5(4). In so concluding it examined the reasons put forward by the Government to justify withholding the documents and found them insufficient.

138. In Nikolova v Bulgaria (1999) 31 EHRR 64 the issue was again the legality of an order continuing the complainant’s detention on remand when challenged by her. She had been charged with false accounting and misappropriation of State funds. The Regional Court failed to consider facts invoked by her which it was claimed were capable of placing in doubt the conditions requiring to be satisfied for continuing detention. Nor were her lawyers able to consult any of the documents in file in order to challenge the reasons put forward by the prosecutor for her detention. The Court held that there had been a breach of the guarantees afforded by article 5(4). Again no sufficient justification was put forward for depriving the complainant of access to the documents or failing to consider the facts on which she relied.

139. The ECtHR decision on which the appellant placed most reliance was Garcia Alva v Germany (2001) 37 EHRR 335. The complainant had been arrested on suspicion of drug trafficking and was detained on remand. When he brought an application for review of his detention his lawyers were not given access to a number of documents in the file,

including the depositions of a witness whose testimony was key evidence against him. The ground for withholding these was that consultation of these documents would endanger the purpose of the investigations. The Court held that there had been a violation of article 5(4). It stated at para 41 of its judgment:

“In the Court’s opinion, it is hardly possible for an accused to challenge the reliability of such an account properly without being made aware of the evidence on which it is based.”

It went on at para 42:

“The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence. Therefore, information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect’s lawyer.”

140. The difference in approach to deciding cases of the European Court of Human Rights by comparison with that of our courts determines the way in which its decisions should be used. Lord Bingham of Cornhill said, when giving the opinion of the Appellate Committee in R v H [2004] 2 AC 134, para 33, that following these decisions in too narrow a manner would place judges in a straitjacket. He went on:

“The consistent partice of the [Strasbourg] court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, but to avoid laying down rigid or inflexible rules … The overriding requirement is that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the

touchstone is to ascertain what justice requires in the

circumstances of the particular case.”

In the same vein he said in the earlier case of Brown v Stott [2003] 1 AC
681, 704:

“The jurisprudence of the European court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention …”

141. In the context of article 6 it was recognised by the ECtHR that the entitlement to disclosure of relevant evidence is not absolute, but there may be competing interests. In Edwards and Lewis v United Kingdom (2003) 15 BHRC 189 at para 53 the Court said:

“The entitlement to disclosure of relevant evidence is not, however, an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals …, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest …”

142.     The passages which I have quoted from Garcia Alva v Germany

state very clearly the strength of the imperative requiring the detained person to be afforded sufficient knowledge of the case against him if a decision on his continued detention is to satisfy the requirements of article 5(4). The common feature of the three ECtHR decisions on which the appellant relied was that the countervailing reasons militating against production of the material in question were insufficiently strong to outweigh the necessity for its production. In Lamy and Nikolova the reasons were not apparently compelling, while in Garcia Alva they were significant but still not strong enough.

143. The present case is a classic instance of weighing up competing interests. The appellant’s interest in presenting his case effectively with sufficient knowledge of the allegations made against him is clear and strong. The informant has a compelling interest in being protected from dangerous consequences which might ensue if any indication leaked out which could lead to his identification. Thirdly, there is the public interest in ensuring that the Parole Board has all proper material before it to enable it to decide which prisoners are safe to release from prison.

144. Having balanced these interests, I conclude that the interests which I have outlined of the informant and the public must prevail over those of the appellant, strong though the latter may be. I emphasise, however, that my conclusions relating to the powers of the Parole Board to use the SAA procedure and their compatibility with article 5(4) are a decision in principle, for that was all that was before the House. We were not asked, nor were we in a position to decide, whether it was proper in the instant case of the appellant. I accept that there may well be cases in which it would not be sufficiently fair to be justifiable and each case will require consideration on its own facts. I would agree that the SAA procedure should be used only in rare and exceptional cases and, as Lord Bingham of Cornhill said in R v H [2004] 2 AC 134 at para 22, as a course of last and never first resort. The appellant’s case was, however, founded on the proposition that in no case would it lawfully be used, and this I cannot accept.

145.     I would therefore dismiss the appeal.