Brooks, R (on the application of) v Parole Board & Anor

The Parole Board may rely on hearsay evidence when assessing whether continued detention is necessary for public protection. The absence of cross-examination ordinarily affects the weight of the evidence, not its admissibility. Exceptionally, reliance on untested evidence may be unfair where it is central, the witness could have been made available, and the prisoner has thereby lost a proper opportunity to challenge the account. The Board must assess the evidence with care and consider the case in the round. Its protective function may require reliance on serious allegations made by an unavailable or unwilling witness.

The claimant, a discretionary life sentence prisoner, challenged the Parole Board’s refusal to direct his release on life licence following his recall to prison. The Board relied substantially on hearsay accounts of rape made by the claimant’s partner, who declined to attend the hearing. The claimant argued that the evidence should have been excluded because it could not be tested in cross-examination, that the Board should have compelled the witness’s attendance, and that the conclusion was unsupported by the evidence.

The claim also challenged the Secretary of State’s decision to refer the matter back to the Board, but that issue stood or fell with the challenge to the Board’s decision.

1. Application dismissed. The Board’s refusal to direct release was lawful, and the challenge to the Secretary of State’s related decision failed with it.
2. The statutory question for a discretionary life prisoner is whether the Board is satisfied that detention is no longer necessary for public protection. The relevant risk must be real or substantial. The Board must balance the hardship of continued detention against public protection, giving preponderant weight to protection from any significant risk of serious injury.
3. The procedural safeguards required by the common law and Article 5 vary with the circumstances. Hearsay is generally admissible before the Board, but its untested nature must be considered when assessing its weight.
4. In an exceptional case, reliance on hearsay may nevertheless be unfair where the evidence is central, the witness could have been made available, and the prisoner has lost a meaningful opportunity to challenge it. That was not this case: the witness was plainly unwilling to attend, and the Board was entitled to consider the allegations and the claimant’s response in the round.
5. The Board had given cogent reasons for concluding that the allegations were more likely true than not. Its decision was rationally supported.