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Judges
- LORD STEYN
- Lord Rodger of Earlsferry
- LORD RODGER OF EARLSFERRY
- LORD WOOLF
- LORD BINGHAM OF CORNHILL
- Lord Carswell
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Roberts v. Parole Board
Smart Summary
Factual and Procedural Background
The Appellant was convicted in 1966 of murdering three police officers and received a mandatory life sentence. The trial judge recommended a minimum term of 30 years, which expired in 1996. During a 2001 parole review the Secretary of State supplied the Parole Board (“the Board”) with favourable reports recommending release, but also lodged additional “sensitive material” said to implicate the Appellant in misconduct while in open conditions. To protect the source of that material, the Secretary of State withheld it from the Appellant and his legal team.
The Board proposed a two-stage hearing: an open session and a closed session at which a Specially Appointed Advocate (“SAA”)—selected by the Attorney General—would examine the sensitive material on the Appellant’s behalf in the absence of both the Appellant and his representatives. The Appellant sought judicial review of that decision. Judge Maurice Kay (High Court) upheld the procedure; the Court of Appeal (Judge Tuckey, Judge Clarke and Judge Jackson) affirmed. The present appeal to the House of Lords (five Judges) addressed only the lawfulness, in principle, of using the SAA procedure in Parole Board hearings.
Legal Issues Presented
- Does the Board possess statutory power, under the Criminal Justice Act 1991 and associated Rules, to withhold relevant material from a prisoner and his legal representatives while disclosing it to an SAA?
- If such power exists, is the resulting procedure compatible with Article 5(4) of the European Convention on Human Rights, which guarantees a detained person a speedy judicial determination of the lawfulness of detention?
Arguments of the Parties
Appellant's Arguments
- No express statutory provision authorises the SAA procedure; paragraph 1(2)(b) of Schedule 5 to the 1991 Act cannot be stretched to permit so radical a departure from natural justice.
- Withholding decisive evidence from both the Appellant and his lawyers renders the hearing fundamentally unfair and violates Article 5(4).
- If any departure from open justice were permissible, it should be limited to national-security cases, not to ordinary prison-management concerns.
Board & Secretary of State's Arguments
- The Board’s incidental powers under Schedule 5 allow procedures “conducive” to discharging its statutory duty to protect the public.
- Article 5(4) requires overall fairness, not a uniform, rigid model; a closed procedure with an SAA can satisfy that standard where disclosure would endanger third parties.
- The triangulation of interests—public safety, witness protection and the prisoner’s rights—justifies limited departures from ordinary adversarial norms.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Judge Weeks v United Kingdom (1987) | Parole Board’s independence and impartiality under Article 5(4) | Confirmed Board is a “court” for Convention purposes |
| Judge Lichniak (2003) | Risk to the public is sole ground for continued detention after tariff | Framed the Board’s statutory focus on risk |
| Judge Doody (1994) | Procedural fairness is context-specific | Cited to show fairness is not one-size-fits-all |
| Judge Bouamar v Belgium (1987) | Flexibility of procedural safeguards under Article 5 | Supported variable standards of disclosure |
| Judge Chahal v United Kingdom (1996) | Special advocate model as possible fairness safeguard | Relied on as international endorsement of SAAs |
| Judge R (West) v Parole Board (2005) | Triangulation of interests: prisoner, witnesses, public | Adopted to justify limited disclosure |
| Judge R v H (2004) | SAAs permissible in exceptional criminal cases | Analogised to parole context |
| Judge Garcia Alva v Germany (2001) | Need for detainee to know case against him | Distinguished; Court noted safeguards can vary |
| Judge Doorson v Netherlands (1996) | Protection of witnesses as legitimate aim | Used to balance safety of informant vs disclosure |
| Judge Van Mechelen v Netherlands (1997) | Life, liberty and security of witnesses | Reinforced witness-protection rationale |
| Judge Tinnelly & Sons v United Kingdom (1998) | Limitations must not impair essence of right | Cited in proportionality analysis |
| Judge Jasper v United Kingdom (2000) | Weighing national security/witness safety against accused’s rights | Analogy for withholding sensitive material |
| Judge Brown v Stott (2003) | Balance between individual and community rights | General principle supporting flexible fairness |
| Judge Re K (Infants) (1963) | Court should not see unseen evidence | Noted as ordinary rule; contrasted with present needs |
| Judge Re D (Minors) (1996) | Confirmation of open-justice principle | Again contrasted with exceptional departure |
| Judge Attorney-General v Great Eastern Railway (1880) | Implied powers doctrine | Authorities used to interpret Schedule 5 powers |
| Judge Simms (2000) | Requirement of clear words to override fundamental rights | Dissent (Judges Bingham & Steyn) used principle to argue lack of power |
| Judge Pierson (1998) | Parliament presumed not to interfere with fundamental rights absent express words | Same context as above |
| Judge Rehman (2003) | Use of SAAs on appeal | Illustrated courts’ inherent procedural powers |
| Judge Shayler (2003) | Potential appointment of SAAs in judicial review | Analogy for inherent powers |
Court's Reasoning and Analysis
1. Statutory Power. The majority (Judge Woolf, Judge Rodger, Judge Carswell) held that paragraph 1(2)(b) of Schedule 5 to the 1991 Act authorises any procedure “incidental or conducive” to the Board’s functions. Because public safety is paramount, a mechanism enabling receipt of essential but sensitive evidence is “conducive” to those functions. Rule 6(3) of the Parole Board Rules 2004 expressly contemplates withholding documents from both prisoner and representative; appointing an SAA is therefore a mitigating, not an aggravating, step.
2. Compatibility with Article 5(4). The majority reasoned that fairness under Article 5(4) is contextual. Where disclosure would place an informant’s life or safety at real risk, limited withholding—coupled with an SAA safeguard—can still yield a “practical and effective” remedy. The procedure must, however, remain exceptional and proportionate; ultimate compatibility can only be judged after the full hearing, when the Board’s actual use of the sensitive material is known.
3. Dissenting View. Judges Bingham and Steyn argued that the power to depart so radically from open justice must be conferred by clear primary legislation. In their view, the SAA procedure deprives the prisoner of the “very essence” of a fair hearing and therefore violates Article 5(4); the Board’s decision was ultra vires and should be quashed.
Holding and Implications
APPEAL DISMISSED (by majority, 3 – 2).
Implications: The Parole Board may, in exceptional cases, withhold sensitive material from both a prisoner and his legal advisers and instead disclose it to a Specially Appointed Advocate. This power derives from the Board’s incidental statutory authority and is not, in principle, incompatible with Article 5(4), provided the procedure remains proportionate, time-limited and truly exceptional. The ruling confirms a flexible, “triangulated” approach to fairness in post-tariff life-sentence reviews and is likely to influence other tribunals faced with similar secrecy-vs-fairness dilemmas.
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