CK, Re Judicial Review

Factual and Procedural Background

The case concerns a judicial review of a decision by a Parole Commissioners' panel regarding an applicant prisoner’s suitability for release on licence following a prolonged period after the expiry of his tariff. The applicant's case involved consideration of various reports, including psychological assessments prepared by a Principal Psychologist employed by the Prison Service ("Mr G"). These reports, which were generally favourable regarding the applicant’s risk of serious sexual or violent offending, were provided to the Parole Commissioners and formed part of the case papers for the hearing in September 2016. Notably, neither party applied for Mr G to give oral evidence at the hearing, and although Mr G attended on the day, he left without giving evidence. The panel ultimately decided that the risk of serious harm posed by the applicant remained too high to permit release, citing concerns about the applicant’s lack of candour and need for further assessment and intervention. The judicial review challenges the panel's decision not to call Mr G as a witness.

Legal Issues Presented

1. Whether the Parole Commissioners' panel had the power to call a witness (specifically Mr G) on its own initiative despite no party applying to do so under the procedural rules.
2. Whether the panel’s failure to call Mr G as a witness rendered its decision unlawful or procedurally unfair.
3. The interpretation and scope of the procedural rules governing the conduct of parole hearings, particularly rules 3, 18, 21, 23, and the extent of discretion afforded to the panel.

Arguments of the Parties

Applicant's Arguments

• The panel erred in law by refusing to hear oral evidence from Mr G due to the absence of a party application under rule 21.
• The panel should have exercised its inherent or general powers under the rules to call and examine Mr G itself.
• The procedural rules (notably rules 3(1), 18(1), and 23(2) and (4)) grant the panel wide discretion to conduct hearings and call witnesses.
• Common law authorities support the proposition that the panel has broad powers to ensure just handling of proceedings, including calling witnesses if necessary.
• Mr G's evidence would likely have been favourable to the applicant and could have materially affected the outcome.

Respondent's Arguments

• The panel correctly interpreted the rules as not granting it power to call witnesses on its own initiative; it must rely on parties to request witnesses under rule 21.
• The procedural rules contain safeguards (notice, disclosure of evidence) in rule 21 that prevent the panel from unilaterally calling witnesses without risking unfairness.
• The rules cited by the applicant do not override or diminish the specific requirements and procedures of rule 21.
• The legislative scheme does not contemplate the panel having an inquisitorial role akin to that in England and Wales, where the Board has explicit power to call witnesses.
• No human rights issues were raised or applicable in this case.
• The panel was able to perform its statutory function and reach a confident conclusion despite Mr G not giving oral evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Gardner) v Parole Board [2006] EWCA Civ 1222	Broad procedural discretion of parole panels to conduct hearings and exclude parties if necessary; inherent powers to ensure just handling of proceedings.	Supported the view that parole panels have wide powers, but the rules in Northern Ireland differ and do not expressly confer power to call witnesses. The court noted the flexible nature of procedural rules but distinguished the jurisdiction.
R (McGetrick) v Parole Board [2013] EWCA Civ 182	Parole Board’s power to exclude documents from consideration in exceptional cases; judicial bodies’ inherent jurisdiction to establish procedures for just handling of cases.	Reinforced the principle of judicial discretion and procedural flexibility but affirmed the importance of statutory and procedural safeguards in Northern Ireland’s rules.
Re Olchov's Application [2011] NIQB 31	Statutory interpretation of Parole Commissioners' Rules (Northern Ireland) 2009, particularly their application to determinate sentence prisoners.	Clarified the scope of the rules but did not directly address calling witnesses; cited for statutory interpretation context.

Court's Reasoning and Analysis

The court analysed the procedural rules governing the Parole Commissioners (Northern Ireland) 2009, focusing on the interplay between the general discretionary powers in rule 23 and the specific provisions regulating witness evidence in rule 21. It acknowledged that the language of the rules is broad and intended to allow flexible and fair conduct of hearings. The court recognized that while the rules do not expressly empower the panel to call witnesses on its own initiative, they do not expressly forbid it either.

Balancing the flexibility of the rules and the need for procedural safeguards, the court concluded that the panel does possess a limited power to call a witness in exceptional cases where failure to do so would cause substantial injustice or impede the panel’s statutory function. However, this power should be exercised sparingly and only after exploring whether parties might call the witness themselves.

Applying these principles to the facts, the court found that the panel’s refusal to call Mr G was a strict but understandable interpretation of the rules. The case did not present compelling reasons to exercise the power to call a witness, especially since the panel had Mr G’s written reports, which were favourable to the applicant, and there was no indication that oral evidence would have significantly altered the outcome.

Furthermore, even if the panel’s decision were technically incorrect, the court exercised its discretion not to quash the decision due to the imminence of a further hearing and the absence of any material prejudice to the applicant.

Holding and Implications

The court DISMISSED the judicial review application.

The decision confirms that while the Parole Commissioners’ panels have some inherent power to call witnesses in exceptional circumstances, this power is limited and should be exercised cautiously. The ruling underscores the primacy of procedural safeguards in witness evidence under rule 21 and the necessity for parties to take the initiative in calling witnesses. The direct effect is that the panel’s decision not to call the psychologist witness was lawful and did not render the hearing unfair. No new precedent altering the procedural framework was established beyond clarifying the limited scope of the panel's powers.