Judge: May J
Citation:  EWHC 1457 (Admin)
A prisoner, 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 May J 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
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, complex arguments were advanced by the Official Solicitor (in her own right) as to 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:
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.
The case is a clear example of the importance of the HRA 1988 in safeguarding the rights of vulnerable people. While May J concluded that the references to “other representative” in the Parole Board Rules 2019 permitted the appointment of a litigation friend, importantly she relied heavily on the interpretative duty in s.3(1) HRA 1988 to bolster this conclusion. Indeed, as set out above, May J explained that given the fundamental nature of rights involved, it would only be possible to draw the contrary conclusion in the event of an “explicit exclusion”. As such, this case is not only significant for mental capacity and prison law practitioners, but it also adds to the jurisprudence on the approach to s.3 HRA 1988, indicating that that court should be slow to reach the conclusion that no human rights compatible interpretation is possible.
 Note, as Alex was involved in this case, and whilst he drafted the summary, he did not draft the comment.