Pearson, R (on the application of) v Parole Board

A Parole Board hearing is not a criminal trial, and criminal rules of evidence do not apply. The Board must nevertheless adopt a high standard of fair procedure. Hearsay may be admitted where the prisoner has a fair opportunity to challenge its reliability and the Board evaluates its quality, including the absence of cross-examination, in the light of the consequences at stake. Fairness does not invariably require the makers of hearsay statements to attend for cross-examination. Where the evidence is central and disputed, the Board must examine it particularly carefully and critically. In this case, the Board’s decision to rely on statements made by children was fair.

The claimant was serving an extended sentence for sexual offences against children. After his release on licence, the Secretary of State revoked his licence and recalled him to prison under the Criminal Justice Act 1991. The Parole Board declined to direct his further release, relying in part on hearsay statements by three boys that he had taken them to a bonfire.

He sought judicial review, alleging that the Board had acted unfairly by admitting and relying on the hearsay evidence, which was central to the disputed allegation. The issue was whether fairness required the boys, or other witnesses, to attend for oral evidence and cross-examination.

1. The claim was dismissed. The Board’s statutory function was to direct release only if satisfied that continued confinement was no longer necessary for public protection under section 44 A(4) of the Criminal Justice Act 1991. The function was preventive and protective, rather than punitive, and did not involve determination of a criminal charge.
2. The conclusion that criminal trial procedures did not apply did not reduce the Board’s duty to act fairly. Fairness required evaluation of the quality and reliability of the material, a proper opportunity for the prisoner to answer it, and careful attention to the fact that hearsay had not been tested by cross-examination.
3. The allegation that the claimant had taken children to the bonfire was a central and hotly disputed feature of the case. The Board therefore had to consider the hearsay very carefully and critically. It was not, however, improper to admit or rely on it merely because the boys did not give oral evidence.
4. The Board had heard evidence from police officers and a social worker with relevant knowledge and experience in assessing what children said. It had considered the possibility of pressure or fabrication, the limited detail in the statements, the claimant’s contrary evidence, and the other circumstances bearing on credibility. It was entitled to reach its conclusion on balance.
5. The practical difficulty of requiring children to attend a prison hearing was relevant. The claimant could have sought a further adjournment and applied for a witness summons under rule 34.4 of the Civil Procedure Rules 1998. The Board’s course, viewed in context, produced an actual fair hearing.

First-instance judicial review in the Administrative Court. The claim was dismissed, with costs ordered in principle against the publicly funded claimant, quantification being adjourned generally with liberty to restore.