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Adrian John Bailey & Anor., R (on the application of) v Secretary of State for Justice & Anor.

13 June 2023
[2023] EWHC 1438 (KB)
High Court
The government messed up some parole rules, and the judge was mad. The government explained what went wrong and promised to fix it, so the judge didn't punish them, but made sure everyone could see the government's mistakes.

Key Facts

  • •The Secretary of State for Justice (SSJ) acted unlawfully in making rule 2(22) of the Parole Board (Amendment) Rules 2022 and in promulgating guidance on its effect.
  • •The court previously ruled that refusing to answer relevant oral questions at Parole Board hearings could amount to contempt of court.
  • •The SSJ provided a witness statement explaining the circumstances surrounding the creation and promulgation of the July and October Guidance documents.
  • •The July Guidance was drafted by officials based on their understanding of the SSJ's policy, and the October Guidance was drafted with lawyer input.
  • •Neither guidance document was approved by the SSJ, and neither considered the potential for contempt of court.
  • •After the first judgment, steps were taken to revoke the guidance and instruct staff to answer Parole Board questions.
  • •The SSJ apologized for the errors, and evidence suggests that measures are in place to prevent recurrence.
  • •The court considered whether to initiate contempt proceedings but decided against it, given the explanation provided and measures taken.

Legal Principles

A refusal to answer a relevant and necessary oral question at a Parole Board hearing could amount to contempt of court, unless legally privileged.

[2023] EWHC 821 (Admin), [62]

The court is obligated to consider contempt proceedings if a contempt 'may have been committed,' even if committed by Ministers or officials.

CPR 81.6, R (Mohammad) v Secretary of State for the Home Department [2021] EWHC 240 (Admin), [26]

The court is not required to initiate contempt proceedings if a formal explanation is given, the breach was unintentional, and measures prevent recurrence.

R (Mohammad) v Secretary of State for the Home Department [2021] EWHC 240 (Admin), [27]

Outcomes

No further action will be taken in the case.

The SSJ provided a comprehensive explanation, apologized for the errors, and implemented measures to prevent recurrence. Initiating contempt proceedings would engage difficult questions of fact and law and is not in the public interest.

The witness statement of Mr. Davison and the email from Martin Jones will be made public as annexes to the judgment.

The documents raise issues of legitimate public interest and concern.

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