A rule, a fundamental right and the legality of its restriction
In R (DSD and NBV) v Parole Board and Secretary of State for Justice  EWHC 694 (Admin) (28 March 2018: IP Radford/Warboys) two rape victims of Mr Warboys (with the Mayor of London who was said not to have standing (ie sufficient interest)) claimed a review of the Parole Board’s decision to release Mr Warboys (the name by which he is still mostly known). The court upheld the victims’ applications: first, that the board were irrational in failing to consider evidence wider than that presented to them; and, secondly, that a provision preventing publication of material was not within the powers of the statute under which the Board’s relevant procedures ran.
For the family lawyer this raises administrative law issues. For example, did the fostering panel in the recent Re T (A Child)  EWCA Civ 650 ask enough, or the right, questions about the grandmother proposed for fostering; and, if not, did their considerations have the quality of decision-making involved in the Parole Board case? And as to vires: the Family Procedure Rules 2010 are full of examples where, as the Divisional Court held of the Parole Board, rules are not clearly backed by substantive legislation to justify the rule change. That is the rules, as in the case of the Parole Board, are outside any powers granted by legislation. The open justice principle – in issue in the Parole Board case – is an example. The principle is paid scant regard by family proceedings rule-makers. They see those prosecuted for domestic abuse in open court. On the same facts it is said that the same person – perhaps proved to be an abuser in a criminal court – is still dealt with in secret by family courts (FPR 2010 r 27.10). The fundamental right in Parole Board seems to be of no account to family proceedings rule-makers.
Parole Board: the case
On 13 March 2009, John Warboys (now Radford) was convicted of 19 serious sexual offences committed between October 2006 and February 2008 involving twelve victims. He was sentenced to an indeterminate sentence for public protection specifying a minimum term of imprisonment of eight years (being the equivalent of a determinate sentence of 16 years), less time spent on remand. That period expired on 14 February 2016, and Mr Radford/Warboys became eligible to be released on parole, at the direction of the Parole Board (ie if it was satisfied that it was no longer necessary for the protection of the public for him to be held in prison).
On 26th December 2017, the Parole Board determined that prison was no longer necessary in Mr Radford’s case and directed his release. Three sets of judicial review proceedings were instituted: by the Mayor of London: he was held to have no standing to make the application. The second set of proceedings was brought by two victims of Mr Warboys DSD and NBV, against the Parole Board and the Secretary of State for Justice. Mr Radford was joined in that application as an interested party. NBV is one of the 12 victims who gave evidence at Mr Radford’s criminal trial; DSD was not one of the 12, although she had obtained a settlement in civil proceedings brought against him. The third claim was by News Group Newspapers Ltd against the Parole Board and the Secretary of State for Justice.
Parole Board Rules 2016 (‘Rule 25’) r 25 states:
(1) Information about proceedings under these Rules and the names of the persons concerned in the proceedings must not be made public.
(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result.
The public law issues: ‘irrationality’ and vires of the rule
On the challenges of DSD and NBV the court dealt with two issues:
- Was the Board’s failure to undertake further inquiry as to the background to, and other alleged offending of, Mr Radford’s application rational; and
- Was Rule 25 within the powers of the Secretary of State in making the 2016 Rules; and in particular to what extent might it be expected that information about parole Board proceedings should be made public?
On the ‘irrationality’ challenge – ‘this rare sub-category of judicial review’ () – the court made it clear how high was the mountain the applicants had to climb. After full testing of the law, the court concluded that the question for the Board should have been to ask if there was other material they should have considered; and if so was it irrational for the Board not to have undertaken further inquiry. Yes it was, said the court: ‘ … in the particular circumstances of this case, the Parole Board ought to have carried out, or have instigated the carrying out of, further inquiry.’
The court agreed that Rule 25 issue and that of open justice went together. Release of information therefore turned on the extent to which it could be said that the Board ‘exercises the judicial powers of the state’ (; Pickering v Liverpool Daily Post and Echo Newspapers Plc  2 AC 370; R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420,  QB 618,  3 WLR 1343 at  approved by Kennedy v The Charity Commission  UKSC 20 (at ).
Yes, they said. Fundamental rights are in play. ‘ … Adjudications upon matters of individual liberty are paradigm examples of the exercise of a judicial function.’ The ‘open justice principle retains its vigour’, even in situations where national security may demand hearing be heard part in private (). And fundamental rights being in play, if statute was to derogate from such principles it must do so in unambiguous terms (the ‘principle of legality’): see for example Lord Hoffman in R v Secretary of State for the Home Department, exp Simms  UKHL 33,  2 AC 115,  3 WLR 328 at 131:
… 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.
The rights of victims to challenge arose not from any common law right for a person to be given reasons (), but from the fact that the release decision is irrational, and separately there is a rule which prevents the Board from giving them information about the proceedings (). The restriction ‘is unnecessary and/or disproportionate cannot [therefore] be regarded as authorised by the enabling statute as a matter of necessary implication’ (). Rule 25 ‘clearly goes too far’. Criminal Justice Act 2003 s 239(5) (which confers functions on the Parole Board in respect of life prisoners) which is the basis for the rule does not enable to the court to imply a provision which restricts fundamental rights:
 Accordingly, the question is whether the Rule goes too far, because it imposes a prohibition which is not the minimum necessary to protect [the rights of private individuals]. Unlike Simms (ibid 130D-G), this is not a case where it is possible, in applying the principle of legality, to construe Rule 25 in a manner which preserves fundamental rights. In line with the approach in [R v Secretary of State for the Home Department exp Daly  UKHL 26,  AC 532], we have concluded that a provision which is unnecessary and/or disproportionate cannot be regarded as authorised by the enabling statute as a matter of necessary implication.
Need for further inquiry and to permit open justice
The court upheld the challenge by DSD and NBV to the rationality of the decision of the Parole Board directing the release of Mr Radford on the basis that it should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability. That is so even in relation to the offences of which he was convicted, let alone any other offending. Mr Radford’s release direction is quashed and Mr Radford’s case remitted to the Parole Board for fresh determination before a differently constituted panel.
The court left it to the Board to decide the procedure appropriate to the redetermination of Mr Radford’s case, taking into account the terms of its judgment, including the observations we have made regarding the need to undertake further inquiry; but suggested a serving or retired judge might chair the panel. The court also upheld the challenge to Rule 25(1). It would be for the Secretary of State for Justice to decide how Rule 25 should be reformulated.
Finally, the court felt that there are no obvious reasons why the open justice principle should not apply to the Parole Board to provide information on matters of public concern to the very group of individuals who have concerns, namely the public itself.