Henry v Parole Board

A court should not lightly interfere with the Parole Board’s assessment of risk. That restraint does not permit a decision based, or possibly based, on a material mistake of established fact. The mistake-of-fact requirements are: an error concerning an existing fact or the availability of evidence; an objectively verifiable and uncontested fact; absence of responsibility by the claimant; and materiality to the tribunal’s reasoning. A real possibility that the decision-maker proceeded on such a mistake is sufficient where the mistake may have affected the outcome. The decision should then be quashed unless the court is satisfied that the result was inevitable.

The claimant, a life prisoner, sought judicial review of the Parole Board’s refusal to transfer him to open conditions. The Board treated the circumstances of his offending, including whether his daughter had witnessed the rapes and whether violent precursor events had occurred, as matters bearing on his lack of openness and risk.

The claimant had been convicted of two rapes. The jury had been unable to agree on a third count, which included the alleged witnessing by his daughter. The central issue was whether the Board had proceeded, or might have proceeded, on a mistaken understanding of the proved facts and, if so, whether that mistake was material.

1. The claim succeeded. The Parole Board’s decision dated 7 October 2010 was quashed. The Board was required to invite the Secretary of State to refer the case back to it and, on referral, to convene an oral hearing as soon as possible.
2. The court accepted that it should not lightly interfere with the Board’s assessment of risk. The Board is better placed than the court to undertake that assessment. That principle did not answer a challenge based on a material mistake of established fact.
3. Applying E v Secretary of State for the Home Department [2004] EWCA Civ 49, the relevant requirements were: a mistake as to an existing fact or the availability of evidence; an established fact, meaning an uncontentious and objectively verifiable fact; no responsibility for the mistake on the part of the claimant; and a mistake that played a material, though not necessarily decisive, part in the reasoning.
4. The evidence established that the daughter’s witnessing related to the unproved first count. In relation to the two counts on which the claimant was convicted, she was asleep during one alleged rape and elsewhere in the house during the other. The violent precursor allegations were likewise not clearly proved. The Board’s references to witnessing, vagueness and the need for a full account created at least a real possibility, and probably a probability, that it had misunderstood the factual backdrop.
5. The possible mistake was material. The Board placed substantial weight on the claimant’s alleged lack of openness and on his failure to give a full and clear account. The fact that he had given his own account, and that other risk factors existed, did not make the mistake immaterial because the significance of his account depended on the factual backdrop against which it was assessed.
6. The court distinguished Alvey v Parole Board EWCA 311, dated 7 February 2008. That case did not assist because the relevant matter here was confused and controversial in the papers, rather than being an uncontroversial point which could safely be assumed to have been understood by the Board.
7. The Board had also wrongly stated that the claimant was subject to a licence condition preventing contact with his former partner. That error alone would not have justified quashing the decision, although the Board was required to proceed on the true facts on reconsideration.

The judgment records that the claimant had previously appealed against sentence in the Court of Appeal. This was a first-instance judicial review in the Administrative Court; no prior decision in the judicial-review proceedings is stated.