Headley, R (on the application of) v The Parole Board

The Parole Board may generally receive and act upon hearsay evidence when assessing risk. However, fairness may require an offender to have an opportunity to test hearsay by cross-examination where it is fundamental to the decision. That requirement is highly fact-sensitive. Relevant considerations include the importance of the evidence, the age and circumstances of the underlying offending, the offender’s subsequent conduct, and whether the remaining evidence establishes risk independently. A decision must be read as a whole, but the Board should identify the purpose and weight assigned to disputed hearsay. Where fundamental hearsay has materially influenced the decision without a fair opportunity to challenge it, the decision is unlawful and should be quashed.

The claimant, a life prisoner recalled to custody after firearms offences, challenged Parole Board decisions refusing release on licence. The original 2006 decision relied on reports rehearsing allegations by his former wife concerning threats and the display of a firearm. The charges arising from those allegations were not proceeded with, and the allegations were never tested by first-hand evidence before the Board.

A further review in 2008 again referred to the allegations and treated them as relevant to the risk posed by the claimant. The claimant argued that the Board had acted unfairly by relying on fundamental hearsay without allowing cross-examination. The central issue was whether fairness required that opportunity in the particular circumstances.

1. The 2008 decision was quashed. A further oral hearing was directed before a differently constituted Parole Board panel, to take place as soon as practicable. The 2006 decision was treated only as background, and no order was sought in respect of it.
2. Under section 28(6) of the Crime (Sentences) Act 1997, the Board had to decide whether continued detention remained necessary for public protection. Its task was, in substance, a risk assessment.
3. Following R v (Sim) v the Parole Board [2004] 2 WLR 1170, hearsay was not generally inadmissible before the Board. Normally, the Board could take account of its hearsay character when assessing weight. In an exceptional case, however, fairness could require the offender to test the evidence by cross-examination before it was taken into account at all.
4. The question was fact-sensitive. Here, the allegations were central to the apparent assessment of risk. The index offence was about 40 years old, the claimant had lived in the community for nearly 20 years without causing injury or damage, and he was physically frail and wheelchair-bound. Possession of air weapons, without more, did not establish continuing risk and could point towards its absence.
5. The 2008 letter contained no meaningful evaluation of the allegations, no explanation of the purpose for which they were cited, and no reference to the claimant’s own account. The Board’s references to the OASys assessments and to links between the index offence and the recall conduct showed that the allegations had materially influenced its decision.
6. The court declined to determine the alternative irrationality argument. The fresh panel was to reach its own conclusions on the evidence before it.

This was a first-instance judicial review. Permission was granted by Calvert-Smith J on 19 June 2007. The claimant later amended the grounds to challenge the Parole Board’s 2008 review decision.