Dominic Raab could potentially face proceedings for contempt of court after high court judges ruled that he acted unlawfully by stopping 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 the Parole Board rules last year, claiming they would ensure there would be one “overarching” Ministry of Justice (MoJ) recommendation and avoid conflicting views.
However, the amendment, which was criticised by unions, was successfully challenged at the high court by two prisoners, Adrian Bailey and Perry Morris, with Lady Justice Macur and Mr Justice Chamberlain finding that it was unlawful.
The two judges also said refusing to answer a question posed by the Parole Board as to whether a prisoner was suitable for release or transfer to open conditions could amount to contempt of court. They further raised the prospect that Raab could be guilty of contempt of court if he was deemed to have instructed witnesses not to answer.
In a written judgment, published just before the Easter weekend, Macur and Chamberlain wrote: “We concluded in our first judgment that guidance issued under the authority of the secretary of state instructed HMPPS [His Majesty’s Prison and Probation Service] witnesses to refuse to comply with the board’s directions and to refuse to answer its oral questions in circumstances where the refusal could amount to a breach of the witness’s legal obligation.
“The consequence of the conclusions we have reached in this judgment is that a refusal to answer an oral question could also amount to a 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 recognised privilege against answering … If such a contempt were committed, the person giving the instruction not to comply or not to answer could also be guilty of contempt of court.”
The judges said they did not currently have evidence as to who drafted the offending guidance, the process involved or whether it was approved by Raab.
They wrote: “The fact that the contempt may have been committed by ministers or officials does not attenuate the obligation [to investigate it] … In our view, the secretary of state should be given a further opportunity to file further evidence on these matters. We shall decide … in the light of any such evidence, whether we should initiate contempt proceedings against any person or persons and/or give further directions as necessary.”
They noted that the court “is not required to initiate proceedings for contempt where a formal explanation of the breach, supported by witness statements, has been given and where it concludes that the breach was not intentional and that measures have been put in place to avoid any recurrence”.
The judgment stated that the unlawful MoJ guidance had been withdrawn and there was agreement that the justice secretary should pay the costs of Bailey and Morris.
The Ministry of Justice said: “We are carefully considering our next steps following the high court’s ruling, and remain absolutely committed to ensuring there is one clear and consistent overarching recommendation from the secretary of state on the dangerousness of serious offenders and their risk to the public.”
