Hearings - parole board - return to custody - right to fair trial - right to liberty and security - vulnerable and intimidated witnesses
R (on the application of Robert Gardner) v Parole Board: CA (Civ Div) (Lords Justice Mummery, Tuckey, Wilson): 5 September 2006



The appellant prisoner (G) appealed against the decision ((2005) EWHC 2981 (Admin)) that the Parole Board had power to exclude him from part of a hearing while evidence was being taken from his former wife, and that that power had been lawfully exercised.



G had been convicted of murder and sentenced to life imprisonment. He had been released on licence but recalled to prison after committing an offence of grievous bodily harm. He was again released on licence, and had been reconciled with his former wife. Soon after, he had allegedly assaulted her, and his probation officer had recommended urgent revocation of the licence because G presented an escalating risk of harm to his former wife. The secretary of state revoked G's licence and he was returned to prison.



The board considered whether to direct his release at a hearing governed by the Parole Board Rules 2004. G's former wife was fearful of him and unwilling to give evidence in his presence, and the panel directed that G should be removed from the room while she gave evidence. Counsel for G remained and cross-examined her on the material issues. The board decided that G should remain in custody.



The judge held that rules 19(2) and 19(3) of the Parole Board Rules 2004 gave the panel the power that it had exercised and that the exercise of that power had been lawful in the circumstances. G submitted that the judge's construction of the rules was wrong and that express provisions were required to confer the power to exclude a party from a panel hearing, and that his right to be present at the hearing had been infringed and his exclusion had not been sufficiently justified.



Held, if an essential witness was too frightened to give evidence in the presence of a prisoner, rule 19(2) permitted the panel to exclude the prisoner from the hearing while that witness gave evidence, since otherwise the panel might be deprived of relevant information as to the level of risk of the prisoner. The same approach was to be adopted to the construction of rule 19(3). The rights to hear evidence and put questions conferred by rule 19(3) were not absolute, and the requirements of the rule were met where a party exercised those rights through his legal representative. The specific powers given to the panel chairman in rules 19(4) and (6) did not cast doubt on that construction of rules 19(2) and (3).



In this case, the panel exercised the power it had lawfully. At common law or under article 5(4) of the European Convention on Human Rights, the question was whether the proceedings as a whole were fair. G did not have an unqualified right to be present when his former wife gave evidence. If G's exclusion had to be justified, it was sufficiently justified for the reason given by the panel, which was that it had no alternative to rule as it did to enable it to resolve the issues of fact between G and his former wife, which were central to the issue of risk. Despite his temporary exclusion, G's position had been adequately protected by his legal representative. G had had a fair hearing before the panel.



Appeal dismissed.



Hugh Southey (instructed by Hodge Jones & Allen) for the appellant; Steven Kovats (instructed by the Treasury Solicitor) for the respondent.