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

A Parole Board assessing the risk posed by a recalled life prisoner may consider relevant hearsay evidence, including disputed allegations, provided that the prisoner has a proper opportunity to respond and the Board accounts for the absence of cross-examination when deciding weight.

Exceptionally, evidence may be so fundamental that fairness requires an opportunity to test it by cross-examination before it is considered. Fairness depends on the circumstances. The panel chairman may direct the Secretary of State to seek a witness summons, but summonses for reluctant witnesses should not become routine. A prisoner who elects to proceed without seeking an adjournment or summons may be unable later to challenge that course as unfair.

A life prisoner released on licence was recalled following allegations by his partner of rape and domestic violence. She declined to attend the subsequent Parole Board hearing. The Board heard and considered accounts of her allegations from probation officers, who were cross-examined, and concluded that continued detention was necessary for public protection.

Elias J dismissed the prisoner's application for judicial review of the Board's decision and the refusal to arrange a fresh hearing. On appeal, the rationality challenge was abandoned. The principal issues were whether fairness required the complainant's attendance or the exclusion of her hearsay allegations, and whether the Board or Secretary of State should have sought a witness summons under the Civil Procedure Rules 1998.

1. By a majority, the appeal was dismissed. Kennedy LJ gave the leading judgment. Wall LJ agreed. Clarke LJ dissented.

2. The Parole Board's function was to assess whether continued confinement remained necessary for public protection. It was not determining a criminal charge. In performing that risk assessment, it was entitled and required to consider all relevant information, including hearsay, provided that the prisoner had a proper opportunity to respond. The Board had to assess such material carefully and allow for the fact that it had not been tested by cross-examination.

3. Fairness may exceptionally require an opportunity to cross-examine the maker of evidence which is so fundamental to the decision that it should not otherwise be considered. Whether that requirement arises depends on the individual circumstances. Here, neither the Board nor the Secretary of State inhibited cross-examination. The prisoner's solicitor knew that the complainant would not attend but agreed that the hearing should proceed and did not seek an adjournment or witness summons. The prisoner could not subsequently impugn that course as unfair.

4. Under the Parole Board Rules 1997, the parties ordinarily decide which witnesses to call. A panel chairman may, under Rule 9, direct the Secretary of State to arrange a witness's attendance, if necessary by seeking a summons under Rule 34.4 of the Civil Procedure Rules 1998. The initial failure to appreciate that power was a shortcoming. Nevertheless, panel chairmen should be slow to require the production of a witness without a party's request, particularly where the Secretary of State does not rely on that witness. Compulsion must be considered case by case and should not become routine.

5. The Board properly evaluated the rape allegations alongside the whole body of evidence and expressly considered the complainant's absence, the inability to cross-examine her, and matters supporting and undermining her account. It correctly applied the approach in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. The Board could also consider, as one factor, the probation officers' impressions of the complainant's credibility.

6. Clarke LJ would have allowed the appeal. In his view, the evidence was sufficiently important that every reasonable effort, including a witness summons, should have been made to obtain the complainant's attendance before her hearsay account was used.

1. Court of Appeal (Civil Division): By a majority, dismissed the prisoner's appeal from Elias J and upheld the dismissal of the judicial review claim: [2004] EWCA Civ 80.

2. High Court: Elias J dismissed the application for judicial review of the Parole Board's decision not to direct release and the subsequent refusal to arrange a fresh hearing. No citation is stated.