Morton, R (on the application of) v Parole Board for England & Wales

A mistake of fact may amount to an error of law where it causes unfairness. The requirements include an existing fact or available evidence, an objectively verifiable and uncontested fact or evidence, no responsibility on the claimant for the mistake, and materiality to the decision-maker’s reasoning. A claimant who receives the material containing the mistake and fails to identify or rectify it before the decision may bear responsibility for the resulting unfairness. Even where a mistake is legally material, relief is inappropriate if the decision would inevitably have been the same.

The claimant, serving an eight-year sentence for rape, sought judicial review of the Parole Board for England & Wales’ decision of 19 May 2008 refusing parole. He challenged two aspects of the decision: reliance on an alleged failure to complete post-course objectives following the Enhanced Thinking Skills programme, and reliance on an alleged failure to contact the CARATs substance-abuse service.

The claim was issued nine days outside the three-month period. The substantive issues were whether the Board had erred in its treatment of the ETS evidence and whether later-obtained evidence about CARATs established an unfair mistake of fact amounting to an error of law.

1. The claim was dismissed. The Parole Board was entitled to rely on the psychologist’s report concerning the claimant’s incomplete ETS objectives. Although it would have been preferable to address expressly the claimant’s account in the psychologist’s addendum, the Board had conflicting material before it and was entitled implicitly to accept the psychologist’s evidence. The omission did not constitute an error of law.
2. The alleged CARATs mistake did not justify intervention. The requirements identified in E v Secretary of State for the Home Department [2004] QB 1044, drawing on R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330, were requirements for unfairness arising from a mistake of fact. They included a mistake concerning an existing fact or the availability of evidence, an objectively verifiable and uncontested fact or evidence, absence of responsibility on the claimant’s part, and materiality to the tribunal’s reasoning.
3. There was no mistake as to the availability of evidence about CARATs. The claimant had received the psychologist’s report containing the alleged error, but did not identify it or obtain the relevant Prison Service evidence before the Board decided the case. He therefore bore responsibility for failing to rectify the matter in time. The necessary unfairness was not established.
4. In any event, the alleged error was not sufficiently material. The Board relied on numerous matters, including the high assessed risk of harm, the absence of Sex Offender Treatment Programme work because of the claimant’s denial, and the opposition of three professional report writers. It was inconceivable that parole would have been granted even if the Board had known of the CARATs contact.
5. The delay issue was academic because the claim lacked merit. The claimant was ordered to pay the defendant’s costs, subject to section 11 of the Access to Justice Act. Permission to appeal was refused.

First-instance judicial review in the Administrative Court. Permission to appeal was refused.