Fairness to Prisoners

Parole Board decisions differ from those of trial courts: the former give paramount consideration to the safety of the community (Parole Act 2002[NZ], s 7(1)), while the latter acknowledge the fundamental requirement of fairness to the accused. To what extent, then, must Parole Board hearings be fair to the prisoner?

This issue has been considered by the House of Lords in Roberts v Parole Board [2005] UKHL 45 (7 July 2005), where the questions were whether the Parole Board could withold information from the prisoner and his legal representative and instead use the specially appointed advocate (SAA) procedure. The same questions could arise in New Zealand, as s 13(3) and (5) of the Parole Act 2002[NZ] authorise the non-disclosure of information to the prisoner in the interests of the safety of any person, and the Board “may” (not must) disclose that to the prisoner’s counsel.

In Roberts the House of Lords split 3-2. Lord Woolf (the Chief Justice) and Lords Rodger and Carswell held that in principle (the case could not yet be determined on its facts) the SAA procedure could be used in rare cases where the public interest required non-disclosure, but (per Lord Woolf, para 83, point vii):

“What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the Board using a procedure that involves significant injustice to the prisoner. If there has been, the decision should be quashed. The procedure may not be ideal procedure but it may be the only or the best method of balancing the triangulation of interests involved in the very small number of cases where a SAA may be instructed.”

This may be criticised for vagueness over what is “significant” injustice to the prisoner. Lord Carswell, concurring, put the conclusion in these terms (para 144):

“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.”

Again, what is “sufficiently” fair?

Lord Rodger, also in the majority, highlighted the difficulties that arise when primacy is given to the interests of the prisoner (para 111):

“One solution would be to disclose the information to the prisoner’s representative and, if possible, to require the informant to give evidence, even though this would risk putting his life or health in jeopardy. That solution would be, to say the least, unattractive and might well give rise to significant issues under articles 2 and 3 of the European Convention. The other solution would be for the Board to exclude from their consideration any evidence which could not be safely disclosed to the prisoner or his representative. In other words, the Board should close their eyes to evidence, even though it would be relevant to the decision which Parliament has charged them to take for the protection of the public. That solution too would be – again, to say the least – unattractive and, moreover, hard to reconcile with the Board’s statutory duty not to direct a prisoner’s release on licence unless they are satisfied that it is no longer in the interests of the public that he should be confined.”

Unfortunatley this latter point undermines Lord Woolf’s view that (para 80):

“The Board can refuse to pay any attention to the information that the individual could provide. This would mean, however, that the Board could be in breach of its express statutory duty. So it is my view that the information should only be disregarded if there is no other way in which the prisoner’s fundamental right to be treated fairly can be protected.”

Lord Woolf’s approach is an attempt to apply the procedure taken to ensure fairness to the accused in criminal trials where the prosecution seeks to refuse full disclosure, set out in R v H (above), to proceedings of the Parole Board. In trials, the ultimate issue is the adequacy of the tendered proof of guilt, and if the prosecution considers that disclosure ordered by the court in the interests of trial fairness should not be made because of the need to protect an informant, then it can elect not to proceed with its case. But in proceedings before the Parole Board, the safety of the community is the dominant interest. Discontinuance of the proceedings is not a solution because the prisoner’s case would not be heard. The dilemma is that a serious risk to a member of the public might be grounds for non-disclosure to the prisoner, and for ignoring the information about that risk in the interests of “fairness”.

The minority judges, Lords Bingham and Steyn, placed primacy on the need for fairness to the prisoner. The SAA procedure was no substitute for full disclosure. Lord Steyn (para 88) summarised it:

“Taken as a whole, the procedure completely lacks the essential characteristics of a fair hearing. It is important not to pussyfoot about such a fundamental matter: the special advocate procedure undermines the very essence of elementary justice. It involves a phantom hearing only.”

He went so far as to quote from Kafka’s “The Trial” (para 95), in a passage that was obliquely (and, some might say, rather bitchily) criticised by Lord Rodger (para 110) as an inapposite reference that tended to trivialise a difficult problem.

It may be that the real difference between the majority and the minority in Roberts is on how abstract the issue before the House was. All judges recognised that the circumstances of each individual case have to be considered in deciding whether the adopted course was fair to the prisoner. The minority may have attempted to pre-emptively reject the SAA procedure before being able to see whether it worked in this case.

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