Public law

Warboys’ release quashed by the Divisional Court

In March 2018, a three-judge panel of the Divisional Court ruled that the Parole Board’s decision to direct the release of John Warboys should be quashed.

About the author
Jake Richards is a barrister at 9 Gough Square, London.

Background

On 21 April 2009, John Worboys (now under the name of John Radford) was convicted of 19 serious sexual offences, including rape and sexual assault, which were committed on 12 victims aged between 19 and 33 between October 2006 and February 2008. He was given an indeterminate sentence for public protection – specifying a minimum term of imprisonment of eight years after which Worboys would be eligible for release if the Parole Board was satisfied that it was no longer necessary for the protection of the public for him to be held in prison.

On 26 December 2017, the Parole Board determined that incarceration was no longer necessary, and directed for Worboys to be released. After much public outcry, the decision was challenged by the Mayor of London, two victims and, on a discrete aspect of the decision, a media group (R ((1) DSD and NBV (2) Mayor of London (3) News Group Newspapers Ltd (claimants or interested parties) v (1) Parole Board of England and Wales (2) Secretary of State for Justice (defendant or interested party) and Radford (formerly known as John Worboys) (interested party) [2018] EWHC 694 (Admin), 28 March 2018). A decision to release a prisoner by the Parole Board had never before been the subject of judicial review. This is because the only parties to a hearing before the Parole Board are the Secretary of State for Justice, the Parole Board itself and the prisoner. The proceedings are held entirely in private. To that extent, unless the Secretary of State for Justice intervened to seek judicial review of a decision by another government body, the decision was effectively unchallengeable.

In this particular case, it was not in dispute that the victims of the prisoner had standing to bring judicial review proceedings – despite not being a party to the Parole Board’s decision. However, although the court expressed admiration for the concern shown, it found that the matters of the case did not confer standing on the Mayor to bring his claim for judicial review.

The subject of the judicial review was not only the specific decision to release Worboys, but also the very nature of Parole Board decisions in general. One key issue was whether rule 25 of the Parole Board Rules 2016 SI No1041 – prohibiting the making public of information about proceedings before the Parole Board or the names of persons concerned in proceedings – was ultra vires (ie, beyond the power to make regulations that was granted by parliament).

There were, therefore, two distinct aspects of the release decision that were challenged:

• Was the decision to release Warboys, or the steps taken to reach the decision (or lack thereof ), irrational? ‘Irrational’ has broadly been defined as ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person [ie, the Parole Board] who had applied his mind to the question to be decided could have arrived at it’ (per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, HL.
• Was rule 25 of the Parole Board Rules 2016 ultra vires?

Irrationality

There were three central submissions on behalf of the applicants:

• There was substantial and relevant material regarding Worboys’ criminality that was not before the Parole Board, and this material could not rationally have been ignored in the light of its central bearing on the Board’s essential risk assessment.
  For example, the Board did not consider the evidence contained in the judgment in civil proceedings for compensation brought on behalf of victims of Worboys against the police ((1) DSD; (2) NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB)).
  This judgment held that, between 2002 and 2008, Worboys committed in excess of 105 rapes and sexual assaults upon women in his taxi. This was especially relevant considering Worboys has claimed that the trigger for his offending had occurred well after 2002. He was found by the civil court to have been ‘clinical and conniving’ , developing his techniques and furthering his ability to conceal his crimes (paragraph 6 of the civil proceedings). This, it was argued, amounted to critical evidence of wider offending, which amounted to a relevant consideration for the Board. Its failure to consider this, it was submitted, meant that any decision was irrational.
• The Worboys case was stark and atypical, and called for special caution from the Board because:
  • his change of stance and recognition of any offending was only 2½ years before the hearing;
  • The secretary of state maintained his Category A (maximum security) status as recently as August 2017. It is extremely unusual for a prisoner to move directly from Category A to release on licence, not least because of the absence of any testing in conditions other than of maximum security.
  • He was documented, in the Parole Board, dossier to be skilled at manipulation and impression management.
  • The licence conditions proposed could easily be circumvented.
• The Board failed to address the appropriate issue: whether Worboys’ transformation in prison was indeed genuine, or whether it was based on calculated lies.

The Parole Board, defending its processes and the decision itself, emphasised that it would not determine a prisoner’s guilt in relation to matters not dealt with in a criminal court. Therefore, it was argued that the evidence of wider offending was a ‘sub-issue’, and would not have affected the judgment of an expert panel (paragraph 86).

Worboys, through his barrister, submitted that the court should respect the Parole Board’s special expertise. He further submitted that evidence of further offending was not a relevant consideration, as a matter of legal obligation, because it is not one impliedly identified by the relevant statute.

It was argued that the risk posed by Worboys was already minimised, considering he was no longer able to work as a taxi driver. He also pointed to the lengthy reasons offered by the Parole Board, and the wealth of information and documentation considered, when deciding he could be released.

Rule 25

On behalf of the News Group Newspapers Ltd, it was argued that the Parole Board is a court that exercises the judicial power of the state. Although private hearings may be necessary in some circumstances, this did not justify a blanket prohibition on the giving of reasons for a decision, especially as these could be redacted if necessary.

It was argued that common law principles offering a right to freedom of expression and the presumption of openness were fundamental rights, which were offended by rule 25. Further, the rights of victims to access justice was being denied, as they were entirely left out from the Parole Board proceedings, making judicial review of the decision incredibly difficult .

On behalf of the Parole Board, it was argued that the principle of open justice is not absolute and the Parole Board was an historic exception. The right of access to court was not impeded by rule 25; this would only be the case if the Parole Board had a general duty to give reasons, and victims a correlative right to receive them, and it was argued that none existed.

Judgment on irrationality

Regarding the decision of the panel on the evidence before it, the High Court was not persuaded that this was irrational. It was not enough to find the decision surprising, or even concerning. The panel had the benefit of expert advice, including three psychologists with experience in complex cases of this sort. The reasoning for the decision was lengthy, clear and detailed in concluding that Worboys’ risk factors had diminished to a point where he could be safely managed outside a prison environment within the framework of a series of reasonably robust licence conditions. The panel was aware that the decision would be controversial and it was unusual to release such a prisoner at this juncture of his sentence.

The court found greater difficulty in assessing whether the panel had acted irrationally in the steps it had taken to reach the decision. One big issue was whether it was irrational for the panel not to have probed Worboys on the account of his offending and his narrative as to accepting guilt in 2005/6. On this issue, the court found that any of the sitting judges would have asked such questions of Worboys. However, this is not the test of irrationality, and without the additional evidence that was not before the panel, it would have been difficult to assess whether Worboys account of offending was accurate or not. The court stated that ‘not without some hesitation, we cannot conclude that it was irrational to fail to probe [Worboys]’ (paragraph 132).

However, it was the lack of additional evidence, beyond the crimes on the indictment of which Worboys was found guilty, which meant that the court held that the decision was irrational. There was substantial evidence pointing to countless further offences being committed by the prisoner. Although the court said that it was right that the Parole Board did not have the role of determining whether the prisoner had committed these offences, the Board was not precluded from considering evidence of wider offending when determining the issue of risk. The evidence or material of further offending, helpfully set out in the civil proceedings by victims against the police (above), could have been used as a means of probing and testing the honesty and veracity of Worboys.

The court concluded that, in the circumstances, the Parole Board ought to have carried out, or have instigated the carrying out, of further inquiry. There were numerous references in the papers before the panel of more than 80 other potential victims.

Worboys’ account was that he had only offended against 12 victims which, coincidentally, were the exact same victims who ended up on the indictment. The court stated that: ‘We do not go so far as to hold that [his] account is inherently implausible, but there was, at the very least, reason to doubt his explanations as a matter of common sense’ (paragraph 159).

The Parole Board was aware, or at least ought to have been aware, that it had no material from the police or the Crown Prosecution Service with which to probe the honesty of Worboys’ account in relation to the offences with which he was found guilty. His account was unchallenged, despite it being clear to the Parole Board that there was a potential wealth of information which would suggest the account was false. The court concluded that:

In our judgment, this material would have provided a sound platform for testing and probing Mr Radford’s account, either at a pre-hearing interview by a member of the panel or at the hearing itself. The psychologists would also have been asked to reconsider their assessments in the light of it (paragraph 161).

Judgment on Rule 25

As for Rule 25, the court considered the various rights and legal principles that were of relevance when considering this issue. Essentially, the court was attempting to balance the rights of the public – especially victims – having access to Parole Board proceedings, and the evidence before it, with the need in some circumstances for privacy to protect a prisoner’s safety.

The court held that the rule was ultra vires. A key factor was the fundamental right of access to the court. This right concerned the ability for a victim to challenge a release decision by bringing judicial review proceedings. If the decision and the Parole Board proceedings were entirely private, then the door of judicial review is almost completely barred for victims.

The court concluded that:

There are no obvious reasons why the open justice principle should not apply to the Parole Board in the context of providing information on matters of public concern to the very group of individuals who harbour such concern, namely the public itself. Indeed, it seems to us that there are clear and obvious reasons why the Parole Board should do so. This information can readily be provided in a fashion which in no way undermines the article 8 rights of the prisoner and the confidentiality which attaches to it.

Our conclusion is that the open justice principle, or more particularly the right of the public to receive information which flows from the operation of that principle, applies to the proceedings of the Parole Board (paragraphs176–77 ).

Conclusion

Although this decision does not itself mean that Warboys cannot be released (the matter has been remitted for a fresh decision by a fresh Parole Board panel) it seems likely that the matters which the Divisional Court pointed to will be given significant weight. More widely, the decision that rule 25 is ultra vires is likely to have significant ramifications, opening up the possibility for more challenges to Parole Board decisions to release other prisoners in the future.

* This article first appeared on the UK Human Rights Blog and is reproduced with the kind permission of the author and 1 Crown Office Row barristers' chambers.

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