Expectation management is of huge importance in politics – especially when it comes to presenting your case to the media. Last weekend the Sunday Times splashed with the following item:
“The justice secretary is preparing to intervene to try to halt the release of black-cab rapist John Worboys following a cabinet revolt over the decision to set the serial sex attacker free after less than 10 years behind bars.
David Gauke has asked lawyers to prepare the case for a judicial review of the decision by the Parole Board, and officials say Gauke will trigger the legal challenge if it has a “reasonable” chance of success.
He made the move after four cabinet ministers privately warned him that the decision to set Worboys free could be unlawful because his victims have not been consulted about the terms of his release.”
Yesterday however Gauke told Parliament:
“I know that the victims of these horrific crimes have suffered significant emotional trauma. The prospect of the release of this man is deeply concerning to them, to many Members and to the wider public. I owe it to those victims and to the public to consider all the options open to me as Lord Chancellor and Secretary of State for Justice. I therefore took the step of seeking legal advice from specialist leading counsel to establish whether there were grounds to challenge the decision in the courts and therefore to ask the court to stop the release of Worboys before the decision was reconsidered.
Let me set out my approach to judicial review in general. Whatever one’s personal feelings about a case, Ministers should not choose to bring a legal challenge that has no reasonable prospect of success, but it is right that public bodies can be held to account for their actions through due process of law and, specifically, judicial review. There has been significant public debate about the possible basis for a legal challenge in such a case. It has been speculated that there are two grounds open to me to challenge such a decision: that the decision was one that no board could reasonably have taken, or that there were significant procedural failings in the way that the decision was taken.
The bar for a judicial review to succeed is very high. The test for deciding whether a decision is unreasonable is not simply that the decision maker—in this case, the Parole Board—could have made an alternative decision, but that no reasonable person would have come to the same conclusion on the facts of the case. Similarly, on procedure, it would be necessary to identify a failure by the Parole Board to follow the process that would have had a material impact on the decision.
Having taken considered and expert legal advice, I have decided that it would not be appropriate for me, as Secretary of State, to proceed with such a case. Members will appreciate that I cannot go further and expose detail of the legal advice that I have been given. I know that will disappoint the victims in this case and Members. Given the crimes for which Worboys has been convicted, on a personal level, candidly, I share those concerns.”
This will not have been an easy matter for Gauke to deal with. Lord Chancellors understandably feel pretty awkward about asking for legal advice and then disregarding it – should the advice happen to prove inconvenient. Doing so would have been particularly audacious for Gauke given that he had only been in the job 11 days. Yet if he was expecting sympathy for his predicaments he will have found scant sign of it in this morning’s papers. For example the leader in Daily Telegraph this morning declared:
“That a man accused of attacking about 100 women could walk out of jail having served less than 10 years is sickening. That a Tory Justice Secretary could stand before the House and say that he can do nothing about it, but others are welcome to try, is ridiculous.”
There is no certainty in litigation. What is a “reasonable” chance of success? 50 per cent? 25 per cent? Ten per cent? However slim the chance in this case it would have been better for Gauke to have fought and lost than not have fought at all. A defeat, with the court providing an explanation for the verdict, would have at least been informative in explaining how the mess has arisen. Passive acceptance, which is how Gauke’s decision will be interpreted, will be damaging for public and police morale. That sense that the “system” is on the side of the criminal rather than the victim will have been increased.
Lawyers advise and it is for politicians in authority to decide. As the GLC Leader, and later Mayor of London, Ken Livingstone was found of undertaking legal challenges with a slim chance of success – regarding them as an extension of agitprop. When he was Foreign Secretary Jack Straw was warned by his chief legal adviser Sir Michael Wood two months before the invasion of Iraq that such a move would be unlawful. Straw ignored the advice and went on to become Lord Chancellor. Gauke is entitled to regard neither Livingstone or Straw as suitable role models. But on this occasion it would have been right for Gauke to take his chances in court – especially after letting us get our hopes up that he would do so.
While the anger at the Worboys case is considerable it is the wider context that is most serious. How can the Parole Board be reformed? How can we assure those appointed to be its members have a tougher approach to crime – reflecting the wishes of the public they are meant to serve? How can we ensure that the police have the powers they need to fight crime – for instance in terms of stop and search and the pursuit of moped thieves who are not wearing helmets?
The riots in August 2011 were a strange time. The country recovered very quickly. But there was considerable dismay that for some days the police were ordered only to “stand and observe”. The shopkeepers – whether the Turks in Dalston or the Sikhs in Southall – were left to fend for themselves.
Whatever happens about Worboys the wider malaise in the criminal justice system must be addressed. This isn’t just about toughness. There is much scope for further public service reform in the prisons and probation service to reduce the reoffending rate. But toughness has a crucial part to play.