by Dominic Raab could potentially face contempt of court proceedings after High Court judges ruled he acted unlawfully by preventing prison and probation staff in England and Wales from recommending whether a prisoner was fit for release or transfer to open conditions.
The justice secretary made the change to Parole Board rules last year, arguing they would ensure there would be a “broad” recommendation from the Ministry of Justice (MoJ) and avoid conflicting views.
However, the amendment, which was criticized by unions, was successfully challenged in the High Court by two prisoners, Adrian Bailey and Perry Morris, with Lady Justice Macur and Mr Justice Chamberlain finding it illegal.
The two judges also said that refusal to answer a question asked by the Parole Board regarding a detainee’s suitability for release or open transfer could constitute contempt of court. They also raised the prospect that Raab could be guilty of contempt of court if he was believed to have ordered witnesses not to respond.
In a written ruling, released just before Easter weekend, Macur and Chamberlain wrote: [His Majesty’s Prison and Probation Service] witnesses to refuse to comply with the commission’s directions and to refuse to answer its oral questions in circumstances where refusal could constitute a breach of the statutory duty of witness.
“The consequence of the conclusions reached in this judgment is that a refusal to answer an oral question could also constitute contempt of court, provided that the question was relevant and necessary, the witness had a view to give, and the witness could not assert a legally recognized privilege against answering … If such an outrage were committed, the person giving the instruction not to obey or not to answer could also be guilty of contempt of court.
The judges said they currently have no evidence as to who drafted the offending guide, the process involved, or whether it was approved by Raab.
They write: “The fact that the outrage may have been committed by ministers or officials does not lessen the obligation [to investigate it] … In our view, the Secretary of State should be given a further opportunity to deposit additional evidence on these matters. We will decide…in the light of such evidence, whether to initiate contempt proceedings against one or more persons and/or provide further instructions, if necessary.”
They noted that the court “is not required to initiate contempt proceedings when a formal explanation of the violation, supported by witness statements, has been given, and when it concludes that the violation was not intentional and that measures have been put in place to avoid any relapses”.
The ruling stated that the MoJ’s illegal driving had been dropped and there was agreement that the justice secretary should pay the costs of Bailey and Morris.
The Justice Ministry said: “We are carefully evaluating our next steps following the High Court ruling and remain fully committed to ensuring that there is a clear and consistent overall recommendation from the Secretary of State on the dangers of serious offenders and about their risk to the public.”
