The former chair of the Parole Board believes the Justice Secretary must “rectify the damage done to my reputation” after a High Court ruling found his sacking over the Worboys affair breached the minister’s duty to uphold the independence of the judiciary.
Professor Nick Hardwick resigned as chair of the Parole Board – the independent body that decides whether a prisoner is safe to be released once they have served the ‘minimum tariff’ of their sentence – in March after being told he had to do so by Justice Secretary David Gauke.
His departure followed the public and media outrage over the Parole Board’s decision, announced in January, to release ‘black cab rapist’ John Worboys, who was sentenced in 2009 on 19 counts including one rape and four sexual assaults. He is actually believed to have raped and sexually assaulted more than 100 women in his taxi.
In March, a judicial review of the decision brought by two of Worboys’ victims succeeded, with Justice Leveson ruling that the Parole Board should have looked into Worboys’ wider offending, not just at his convictions, to make the decision. He is now awaiting another Parole Board hearing.
Although Professor Hardwick told David Gauke that he did not believe he needed to resign as a result of the controversy, he said he was told he had to do so by the Justice Secretary who warned him that “he did not want to get ‘macho’”, which the academic understood “to be a clear threat”.
However, the High Court has now ruled that Mr Gauke making Professor Hardwick resign in this way was “not acceptable” as it breached the principle of judicial independence, which applies to the Parole Board as a quasi-judicial body, that Mr Gauke swore to uphold upon his appointment as Lord Chancellor and Justice Secretary.
Justice Mostyn’s ruling
This week’s ruling by Justice Mostyn at the High Court was made in a case brought by prisoner Paul Wakenshaw against the Justice Secretary and the Parole Board.
Wakenshaw, who has been in prison since 2009 and is serving the now-abolished indeterminate Imprisonment for Public Protection (IPP) sentence, argued that the Parole Board is not sufficiently independent to decide whether he should be released and that his hearing before the body could not be fair.
One of the reasons he advanced for this is that the tenure of Parole Board members is “too short and too precarious” and matters around their dismissal compromises the body’s independence. He used the example of Professor Hardwick’s sacking following a controversial decision as evidence in support of this.
Faced with a potential public outcry in controversial cases that happen from time to time, Wakenshaw, in effect, argued that Parole Board members may feel anxious about making unpopular decisions around a prisoner’s release because of concerns that this could affect their jobs, compromising the independence of the organisation.
Justice Mostyn agreed with this and granted the making of a declaration that the Parole Board is not an “objectively fair adjudicative body”.
He said: “The catalyst for this claim was the abrupt resignation of the previous chair of the Parole Board, Professor Nick Hardwick, on 27 March 2018, following a meeting between him and the Secretary of State for Justice in the wake of the Worboys controversy.
“I think that the reasonable, albeit well-informed, observer could conclude that the short term of appointment, coupled with the precarious nature of the tenure, might wrongly influence a decision that had to be made. An insight into the precarious nature of the tenure is given by the resignation of Professor Hardwick.
“In my judgment it is not acceptable for the Secretary of State to pressurise the chair of the Parole Board to resign because he is dissatisfied with the latter’s conduct. This breaches the principle of judicial independence enshrined in the Act of Settlement 1701. If the Secretary of State considers that the chair should be removed, then he should take formal steps to remove him pursuant to the terms of the chair’s appointment.”
If both Wakenshaw and David Gauke agree to the declaration, the case will go no further.
“Happy to appear in court and give evidence”
Professor Hardwick, a much respected and hugely experienced former Chief Inspector of Prisons whose sacking was widely condemned, said he is “pleased” with the judgement but that it is “not a done deal”.
“It will be interesting to see what the Lord Chancellor and the Ministry of Justice now do, what their next step is,” he told me. “The ball is firmly in their court.
“Gauke is Lord Chancellor. He swore when he made his oath of office that he would protect the independence of the judiciary.
“When I met with Gauke I reminded him of that duty in the conversation we had about whether I was going to go. I reminded him again about the importance of the independence of the Parole Board in the letter I wrote for my dismissal. It is a very serious thing if he has knowingly breached the solemn oath he took.”
“There’s a really interesting contrast between what Justice Leveson said about the Worboys case, that it was a difficult and problematic case with many exceptional features, which recognises the very narrow legal point on which the Worboys judgement rested, and what judge Mostyn said about Gauke’s mistake, which is that he breached a very fundamental principle,” he added.
The professor of criminology at Royal Holloway, University of London believes David Gauke must “put right the mess that he made” – including the damage done to the academic’s reputation.
“The Secretary of State’s got to decide whether he consents to the declaration which the judge has suggested in his judgement,” he said.
“If the declaration is accepted, it would then be quite clear that the decision the Justice Secretary made [to sack me], which he alone made, in the words of the judge, breached the principle of judicial independence established by the Act of Settlement 1701.
“It seems to me that he would then have to put matters right, not just in terms of what he puts right regarding the Parole Board, but what he puts right with regards to me. I’m not going to ask for anything, I’m going to wait and see what he does.
“But, at the very least, I would expect him to do something that is a very serious attempt to rectify the damage that he’s done to my reputation and put right the mess that he made. I would be interested to hear what he has to say about that.
“If not, it will go to a full hearing and I would be very happy to appear in court and give evidence and if Gauke wants to contest anything that I’ve said, which he hasn’t done up until now, and if he would be happy to be in court himself and be cross-examined, that would be entertaining.”
The Ministry of Justice has said that the judgement does not call into question the principle that ministers play no role in the decisions of the Parole Board and that it will “carefully consider” the ruling.
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