Practice and Procedure


PUBLISHED January 2, 2004

A parole board had not erred by deciding that there were exceptional circumstances warranting the appointment of a specially appointed advocate to represent a prisoner in respect of sensitive material to be relied on by the secretary of state in a parole review.The claimant prisoner (R) applied for judicial review of the parole board's decision that a specially appointed advocate should represent R in respect of material to be relied on by the secretary of state in a parole board review that should not be disclosed to R personally or his legal representatives. In 1966 R received mandatory sentences of life imprisonment for the murder of three police officers. His tariff period expired in 1996. Following a board review in 1999, he was transferred to an open prison. R was later returned to closed prison in light of investigations into his alleged involvement in drug dealing and bringing contraband into prison. Meanwhile the process for another review had commenced. R's solicitor (C) complained that material in the dossier provided by the secretary of state to the board had not been disclosed to himself or R. That material related to R's removal back to closed prison. The board considered the interests of the prisoner, the public and the source of the sensitive material. It concluded that despite the possibility of prejudice to R in making representations to it on his review, the balance of interest favoured the appointment of a specially appointed advocate. The board accordingly directed that the sensitive material should only be disclosed to a special advocate. R submitted that the decision to appoint a special advocate: (1) breached European Convention on Human Rights Art.14 in conjunction with Art.5(4) because if he were a discretionary life prisoner the sensitive material would have been disclosed and a special advocate could not have been appointed; (2) was unfair and/or disproportionate.HELD: (1) If the facts of R's case had occurred in the context of a discretionary life prisoner, the board would not have lacked the power to direct the appointment of a special advocate. In exceptional circumstances the board was entitled to resort to the special advocate procedure in respect of a discretionary life prisoner. Therefore there could be no breach of Art.14 of the Convention as there was no differential treatment between discretionary and mandatory life prisoners (Lamothe v Commissioner of the Police for the Metropolis (1999) LTL 25/10/99 and Re S (2002) UKHL 10 considered). (2) "Exceptional circumstances" for the appointment of a special advocate should not be limited to matters of national security and the constraints that might justify such an appointment in the context of national security could be matched by comparable constraints in other contexts. The board's conclusion that disclosure of the sensitive material to R's legal representatives would lead to a real risk of inadvertent disclosure to R withstood intense scrutiny. There was no error in the board's balancing of the competing interests of the public, the prisoner and the source of the sensitive material. Nor did the board err in its conclusion that the appointment of a special advocate could secure acceptable standards of fairness for R. The fears of the source of the sensitive material were objectively and subjectively justified. Given the exceptional circumstances, it was fair and proportionate for the board to appoint a special advocate.Application refused.

[2003] EWHC 3120 (Admin)