In R(EG) v Parole Board & Ors  EWHC 1457 (Admin), May J considered the requirements for effective participation in the parole process in the context of prisoners with impaired decision-making capacity.
EG had learning difficulties which prevented him from instructing a (legal) representative to act for him in the review the Parole Board was conducting of the necessity of his continued detention. He challenged the failure of the Parole Board and the Secretary of State for Justice to secure his effective participation in his parole process so as to ensure a timely review of his continued detention as required by Article 5 of the European Convention on Human Rights.
It was not in dispute that an oral hearing was necessary in EG’s case; nor was it contested that if the Parole Board Rules did not provide a proper mechanism to enable EG, as a person lacking capacity, to participate in his hearing then he would have been prevented from having a fair hearing and would have been entitled to succeed in his claim.
The claim had a long and complex history, not least because of the publication (part-way through) of a new set of Parole Board Rules in 2019, which provided (at Rule 10(6)(b))for the appointment of “a representative (solicitor or barrister or other representative) […] where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner’s best interests for the prisoner to be represented.”
The claim was very widely framed, including by reference to the Equality Act 2010 and the Public Sector Equality Duty, but, not least because of the way in which the wider aspects had been pleaded and developed, May J confined herself to specific consideration of EG’s position, in particular the need for a litigation friend (or other mechanism) to enable his effective participation in his parole process.
The key issues she had to decide were therefore: (1) whether a solicitor can act in a dual capacity in parole reviews, as they do in the Mental Health Tribunals; (2) whether the 2019 Rules, properly construed, permit the appointment of a litigation friend; and (3) the role of the Official Solicitor as litigation friend of “last resort” for prisoners in their parole review. Before deciding these, however, she made some observations about the dispute between the parties (including the intervener Equality and Human Rights Commission) as to the precise number of prisoners who might require steps to be taken to secure their participation. She declined to resolve the dispute, however, noting that it was something of a red herring as “[t]he case of EG shows that the issue of prisoners lacking capacity to participate in their parole review is not theoretical and that there is a need to be addressed” (paragraph 74).
Solicitors acting in a dual capacity
After a careful review of the evidence, including that adduced by the Law Society as intervener, May J concluded that “the safeguards in terms of training and accreditation, taken together with specific legal aid funding arrangements create, in my view, a very particular mechanism for the representation by solicitors acting in the best interests of patients lacking capacity to participate effectively at a hearing before the MHT. There is currently no similar accreditation scheme, and different arrangements for public funding, in respect of a parole review for a prisoner who lacks capacity” (paragraph 85). She continued:
87. […] For a prisoner who lacks capacity, the risk assessment process that is fundamental to a parole review considering release from prison engages a consideration of many similar matters to those arising at a MHT where the tribunal is considering release from hospital, such as: mental capacity and human rights, housing, risk to others and a suitable care package. In the MHT the effective participation in his or her hearing by a patient lacking capacity is in my view able to be secured because they are represented by someone who has had to demonstrate extensive experience, who has attended at a special training course and who has been screened and interviewed. I do not see how effective participation in their parole review for a prisoner who lacks capacity could be ensured if they were to be represented by a “best interests” solicitor without similar safeguards. That some prisoners lacking capacity may in the past have been represented by a solicitor acting in their best interests without challenge is not, in my view, an answer to the issue which has now been raised.
88. Accordingly I agree with submissions made by the other parties that, in the absence of an analogous system of accreditation to that operating in the MHT, EG needs a litigation friend to act in his best interests, amongst other things to give instructions to his solicitors. That raises the question of whether the 2019 Rules enable the Board to make such an appointment.
The 2019 Rules
May J concluded that: “whilst considerably wanting in clarity, the Rules must and do permit the Board to appoint a litigation friend where one is needed to facilitate access of a non-capacitous prisoner to his or her parole review” (paragraph 93). She considered that the plain wording of Rule 10(6) in its reference to “other representative” to encompass the potential for a litigation friend, but that, bearing in mind the obligations under s.3(1) HRA 1998 to construe legislation compatibly with the ECHR:
99 […]even if I am wrong to do so, it would in my view require much clearer wording for me to conclude that the 2019 Rules prevented the Board from being able to appoint a litigation friend where it was necessary to ensure a fair hearing. The disadvantage to which a prisoner lacking capacity risks being subject, without a person to act in his best interests upon the available material and to instruct a solicitor or other legal representative to act in his parole review, would be so extreme that an explicit exclusion would be required before a court could conclude that this was what Parliament had intended. I think Mr Auburn is right to say that having a litigation friend is so fundamental to ensuring a fair hearing for a person who lacks mental capacity that it would require words which clearly exclude such an appointment before a court could find that it was not provided for.
In this, May J also held that, even if Rule 10(6) did not assist, it would be possible to construe the wider case management power in Rule 6 so as to enable the appointment of a litigation friend.
The role of the Official Solicitor
By the time the matter came before May J, the Official Solicitor had agreed to act for EG in the parole process subject to certain conditions. However, going forward, arguments were advanced by the Official Solicitor (in her own right) as to limits upon her powers to act before the Parole Board. May J did not express a final conclusion on the construction of the relevant provisions (s.90(3A) Senior Courts Act 1981), but provisionally preferred the wider construction advanced by the Parole Board to the effect that the Official Solicitor did have such power, but she “could not be expected reasonably to exercise that power in circumstances where her department was untrained or otherwise ill-equipped to do so” (paragraph 116). She made no finding as to whether that was the case there, but noted that “one of the purposes of consulting affected parties, like the OS, when introducing rule changes must be to identify and address such issues,” the OS not having been consulted.
Declining to consider in detail the wide-ranging claims formulated in this regard, May J’s conclusion was:
131. […] confined to the existence of a mechanism for affording EG full and proper representation in preparation for, and at, his oral hearing. In his case no other difficulty has been identified: his lack of capacity was picked up at an early stage and his solicitors have got legal aid to represent him in his parole process; what is wanting is a litigation friend to represent his best interests in giving his solicitors instructions, alternatively an accreditation system (or similar) to permit his solicitors properly and ethically to act in a dual capacity, as solicitors are able to do in the MHT.
On the facts, May J found that “[e]ven for a prisoner with his complex needs, a delay of over two and a half years appears to me to involve a breach of [his Article 5(4) rights]. She identified a number of relevant considerations going to the further consideration of the consequences of this delay, but did not resolve them in the judgment.
It is – on one view – very surprising that the issue of what to do where a prisoner lacks capacity to participate in Parole Board hearings has not previously arisen for determination – and it is clear from the judgment that there must in the past have been a degree of pragmatic management of the situation. This case has very clearly shone a spotlight on the position, and the wider consequences of the decision will be significant as regards participation – and the bringing about of the practical steps required to give effect to the judge’s construction of the Parole Board Rules 2019.