Case No: C1.2006/0036/QBACF

Neutral Citation Number: [2006] EWCA Civ 1222
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Co/149/2005
Royal Courts of Justice
Strand, London, WC2A 2LL

05th September 2006
Before :

LORD JUSTICE MUMMERY
LORD JUSTICE TUCKEY
and
LORD JUSTICE WILSON
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Between :

	THE QUEEN ON THE APPLICATION OF GARDNER	Appellant	
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	PAROLE BOARD	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr Hugh SOUTHEY (instructed by Hodge Jones & Allen) for the Appellant
Mr Steven KOVATS (instructed by Treasury Solicitor) for the Respondent
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Judgment
Lord Justice Tuckey: 
1.	This is another case in which the procedure followed by the Parole Board is challenged.  Here the question is whether the Board has power to exclude a prisoner from part of a hearing whilst evidence is being taken and if so whether it was lawfully exercised in this case.  It arises on appeal from a judgment of Munby J. ([2005] EWHC 2981 (Admin)) who answered both questions in favour of the Board.  
2.	On 16 October 1980 the appellant, then aged 22, was convicted of murder.  He and another mounted a brutal and sustained attack on the victim with a Krooklok.  His tariff term was set at 9 years.  He was first released on licence in April 1989 but within a fortnight had committed an offence of grievous bodily harm.  After serving a 12 month sentence for this offence he was recalled to prison where he remained, (apart from short periods when he absconded), until he was next released on licence in September 2003.  He married in 1992 but in 2002 his wife divorced him.  Because she alleged that he had made threatening telephone calls to her the 2003 licence forbade the appellant from contacting her and excluded him from entering the area where she lived.  However they met accidentally and became reconciled for a time and the licence conditions were varied.  But on 28 March and 5 April 2004 the police were called to the ex-wife’s flat on reports that the appellant was causing a disturbance and had assaulted her.  On 7 April 2004 the appellant’s probation officer recommended urgent revocation of the licence because in his view the appellant presented an escalating risk of harm to his ex-wife.  The Secretary of State revoked the licence and the appellant was returned to prison on 26 April 2004.
3.	Where a prisoner is recalled to prison in this way the Secretary of State is required to refer his case to the Board to decide whether to direct his release, which they must do if they consider his detention is no longer necessary for the protection of the public.  The hearing to decide this question in the appellant’s case was governed by the Parole Board Rules 2004.
4.	In preparation for this hearing statements from the appellant’s ex-wife were served on his solicitors.  They made lengthy representations about this evidence which made it clear that it was disputed and asked that she should attend the hearing so that it could be challenged.  The hearing was fixed for 14 October 2004 before His Honour Judge Coleman and two lay members.  From the case dossier it was clear to the judge that the appellant’s ex-wife had previously declined to give evidence against him.  The judge was told that she would not attend on this occasion if she had to give evidence in the appellant’s presence.  He directed the police officer who had investigated the ex-wife’s allegations to inform her that she would not have to do so and to bring her to the prison. He believed that if she came she could be persuaded to give evidence in the appellant’s presence.  In the event however she could not be persuaded. The panel was told that she was too frightened and that she remained unwilling even when it was suggested that she could give evidence from behind a screen which happened to be in the room where the hearing was to take place.  After hearing argument from the appellant’s counsel the panel directed that the appellant should be removed from the room whilst his ex-wife gave her evidence.  Counsel remained and so he saw and heard her give her evidence.  After she had given her evidence in chief the panel adjourned to enable counsel to take any further instructions he needed from the appellant.  He then cross examined.  The judge ends the statement he made for the purposes of these proceedings by observing that counsel had detailed instructions and challenged the ex-wife on the material issues.  
5.	The panel also heard evidence from the police and probation officers and the appellant himself and the hearing was otherwise conducted in accordance with the rules which I set out below.
6.	In its decision letter to the appellant the panel said that although it had not accepted all his ex-wife’s evidence it had found that she was fearful of him and had been threatened by his conduct.  He had assaulted and severely bruised her on 3 April 2004. It concluded:
Until you have completed challenging work on your social skills, inter-personal relationships and your tendency towards aggression your risk of re-offending continues to remain too high for release.  This work can, in the panel’s view, only be completed during a further period in custody.
7.	The first question is whether the 2004 Rules gave the panel power to hear the ex-wife’s evidence in the way it did.  Rule 19 is headed Hearing Procedure.   Its provisions are as follows:
(1)	At the beginning of the hearing the chair of the panel shall explain the order of the proceeding which the panel proposes to adopt, and shall invite each party present to state their view as to the suitability of the prisoner for release.
(2)	The panel shall avoid formality in the proceedings and so far as possible shall make its own enquiries in order to satisfy itself of the level of risk of the prisoner; it shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings.
(3)	The parties shall be entitled to appear and be heard at the hearing and take such part in the proceedings as the panel thinks fit; and the parties may hear each other’s evidence, put questions to each other, call any witnesses who the Board has authorised to give evidence in accordance with Rule 15, and put questions to any witness or other person appearing before the panel.
(4)	The chair of the panel may require any person present at the hearing who is, in his opinion, behaving in a disruptive manner to leave and may permit him to return, if at all, only on such conditions as the chair may specify.
(5)	The panel may adduce or receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law, but no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action.
(6)	The chair of the panel may require the prisoner, any witness appearing for the prisoner, or any other person present, to leave the hearing where evidence is being examined which the chair of the panel, in accordance with Rule 8 (2) (d) (subject to any successful appeal under Rule 8 (2)), previously directed should be withheld from the prisoner as adversely affecting national security, the prevention of disorder or crime or the health or welfare of the prisoner or others.
(7)	After all the evidence has been given, the prisoner shall be given a further opportunity to address the panel.
8.	The parties are defined as the prisoner and the Secretary of State.  Rule 8 (2) (d) enables the Chair of the panel to give directions before the hearing as to whether the withholding of documents from the prisoner in accordance with Rule 6 (2) is a necessary and proportionate measure.  Rule 6 (1) requires the Secretary of State to serve on the Board and the prisoner specified information and reports.  But this is subject to Rule 6 (2) which entitles him to withhold such material from the prisoner if in his opinion it would adversely affect national security etc...
9.	In its decision letter the panel said that because the ex-wife was unwilling to confront the appellant and as Rule 19 (3) entitled it to hear evidence in such a way as it thought fit, it had heard her evidence in his absence.  It said that it had no alternative but to rule as it did if it were satisfactorily to resolve the issues of fact between the appellant and his ex-wife which were central to its determination.
10.	Munby J. held that both Rule 19 (2) and 19 (3) gave the panel the power which they exercised.  He referred to the Board’s responsibility to reconcile as far as it could its obligations to the prisoner with its obligations to protect society including third parties such as witnesses  and that in order to discharge these obligations: 
the Board should be in a position to know all the relevant information about the progress that the prisoner has made during his sentence … both from the point of view of the prisoner and from that of the public, whom the Board is intended to protect. It is critical that the Board, whenever possible, is aware of any relevant information before it reaches its decision to release a prisoner on licence (Lord Woolf C.J. in R (Roberts) v Parole Board & anr. [2005] UKHL 45 at para. 38).
11.	Munby J. said that Rule 19 (2) had to be construed purposively to meet these needs.  Its wide terms were “amply sufficient to confer on the panel the power which was here exercised”.  The requirements of Rule 19 (3) were met if its component entitlements were afforded either to the prisoner and/or to his representative, as they were in this case.  In any event Rule 19 (3) was subject to the overriding provision that the prisoner was only entitled to “take such part in the proceedings as the panel thinks fit”.  These words were to be construed generally and contemplated that a party might in a particular case not be able “to take part, or a full part, in at least part of the proceedings”.
12.	Mr Southey for the appellant submits that the judge’s construction of the Rules is wrong.  Express provisions are required to confer the power to exclude a party from a panel hearing.  The general powers contained in Rules 19 (2) and 19 (3) do not do so and were not intended to do so as Rules 19 (4) and 19 (6) would be otiose if they did.  The opening words of Rule 19 (3) give the panel general case management powers during the hearing but do not include a power to exclude a party from the hearing.  Such a construction would be contrary to the express rights “to appear” at the hearing and “hear each other’s evidence” conferred by this Rule.
13.	I do not accept these submissions, broadly for the reasons given by the judge. The short procedural code set out in Rule 19 contains the essential features of fairness but it is obviously not designed to deal expressly with every eventuality and so is couched in flexible rather than absolute language.   It is similar to the procedural rules for other tribunals which are designed to confer the widest possible procedural discretion to enable the tribunal to discharge its duties. Thus by Rule 19 (2) the panel “has to make its own enquires in order to satisfy itself of the level of risk of the prisoner” and is to “conduct the hearing in such a manner as it considers most suitable to the clarification of the issues before it”.  If an essential witness is too frightened to give evidence in the presence of the prisoner I think Rule 19 (2) permits the panel to exclude the prisoner from the hearing whilst that witness gives evidence, otherwise it will or may be deprived of relevant information as to the level of risk of the prisoner.
14.	The same approach should be adopted to the construction of Rule 19 (3).  There is no reason why the opening words should not be given their ordinary meaning.  The words used do contemplate that the panel may in a particular case decide that a party will not be able to take a full part in the proceedings even though the parties’ rights are generally as stated in the rest of this Rule. That the latter rights are not absolute is made clear by the fact that they are introduced by the word “may” by contrast with the opening words of the Rule: “shall be entitled to”.  Like the judge I also think that where a party exercises those rights through his legal representative the requirements of the Rule are met provided the rights are afforded to the prisoner and/or his legal representative.
15.	I am not persuaded that the specific powers given to the chair of the panel in Rules 19 (4) and (6) cast doubt on this construction of the two earlier rules.  They give specific power to the Chair to keep order during the proceedings and to deal with evidence about which he has previously made a direction under Rule 8 (2) (d).  The earlier rules deal with the powers of the panel as a whole.  Moreover the Rule 19 (4) and 19 (6) powers are not confined to the parties but relate to “any person present at the hearing”.  
16.	So for these reasons I conclude that the Rules do give a panel power to exclude a prisoner whilst a witness is giving evidence in circumstances such as those which arose in this case.  
17.	Mr Southey does not now dispute the judge’s conclusion that the Rules so construed are compatible with the Convention, but the question remains whether the panel exercised the power which it had lawfully in this case.  Analysed at common law or under Article 5 (4) of the convention the question is whether the proceedings as a whole were fair.  The requirements of fairness are obviously not the same in every case.  Here the panel was required to strike a balance between the rights of the appellant and the wider rights of the community where protection of the public was the predominant consideration. 
18.	Mr Southey submits that as the appellant’s right to be present at the hearing had been infringed his exclusion had to be sufficiently justified.  It also had to be shown that he had been sufficiently protected from its effect.  Unless these two conditions were met the procedure was unfair.  He says that the exclusion could not be justified because the panel had taken no steps at the outset of the hearing to determine whether the ex-wife’s stated fear of the appellant was justified and it had considered that giving evidence from behind a screen would have been a satisfactory compromise.  If there was sufficient justification Mr Southey submits that the panel could have done more to protect the appellant by arranging for the ex-wife to give evidence via a video link or directing that a transcript of her evidence be supplied to the appellant to enable him to give instructions before she was cross-examined.
19.	The premise for these submissions is that the appellant had a right to be present when his ex-wife gave evidence.  I think it is debatable that the appellant did have such a right given that his legal representative was present whilst he was excluded.  Did he have an unqualified right to be present as well?  There is no English or Strasbourg case which shows that there is such a right.  In a criminal case neither English law nor Article 6 requires that a defendant should be able to confront a witness.  He does not have to be in sight of the witness or in the same room.  What matters is that the defence should have a proper opportunity to challenge and question the witness (see Lord Rodger in R v Camberwell Green Youth Court [2005] UKHL 4 at paras. 14 and 15).  For Article 6 purposes a party may be identified with his legal representative.
20.	However I shall assume without deciding that the appellant’s exclusion did need to be justified.  The judge justified it on the grounds that the ex-wife’s Article 8 rights would be infringed if she had to give evidence.  I think it can be justified on this basis although Mr Southey disputed this conclusion.  But it seems to me (as it also did to the judge) that what happened can perfectly well be justified for the reason given by the panel:  it had no alternative but to rule as it did to enable it to resolve the issues of fact between the appellant and his ex-wife which were central to the issue of risk.  Mr Southey says this is not good enough because it means that the panel just went along with what the ex-wife wanted, although it felt that she could have given evidence from behind a screen.  I disagree.  The panel could not have been expected to embark upon some preliminary enquiry about the extent of the ex-wife’s fears and the reasonableness of her objection to giving evidence from behind a screen.  The background to which I have referred gave every indication that she was frightened of the appellant and that her fear was well founded.  She had been promised by the chair that she would not have to give evidence in the presence of the appellant.  The appellant’s exclusion was therefore sufficiently justified for the reason given by the panel.
21.	I have no doubt that the appellant’s position was sufficiently protected despite his temporary exclusion.  He knew what his ex-wife was going to say and did say and was able to give instructions to his legal representative who had been present throughout her evidence and so was able to challenge her account.  It is not suggested, (other than faintly on this appeal), that the appellant suffered any prejudice as a result of his temporary exclusion.  The situation here is a far cry from that in Roberts where neither the prisoner or his legal representative knew what was alleged against him or by whom it was alleged.  No request was made to the panel for a video link or transcript and I doubt very much whether it would have been in the appellant’s interest to do so because if the panel had acceded to such request the hearing would inevitably have had to be adjourned.
22.	All in all I conclude that the appellant had a fair hearing before the panel.  It was after all his conduct which made his ex-wife frightened to give evidence in his presence and so led to his temporary exclusion from the hearing during which time his position was adequately protected by his legal representative.
23.	The conclusions which I have reached so far are sufficient to dispose of this appeal.  Munby J. found other sources for the power to exclude a party in addition to Rules 19 (2) and 19 (3).  We did not hear argument about this and I say nothing about it.
24.	So for the reasons I have given I think Rules 19 (2) and 19 (3) gave the panel power to exclude the appellant from the hearing whilst his ex-wife was giving evidence and that the panel exercised this power lawfully.  I would therefore dismiss this appeal.
Lord Justice Wilson:		I agree
Lord Justice Mummery:	I also agree