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

A Parole Board hearing must be fair in the circumstances of the individual case. The Board may generally rely on hearsay and written evidence when assessing risk, and an alleged victim need not ordinarily be called. Fairness depends on the evidence’s significance, nature, quality, provenance, notice and the prisoner’s reasonable opportunity to answer it.

Where potentially important police intelligence is produced for the first time at the hearing, the Board must consider whether it can fairly be admitted and whether an adjournment is needed to address its provenance, reliability, veracity and effect. The absence of a request for an adjournment by an inadequately represented prisoner does not necessarily cure the unfairness. Relief should be refused only where the court is sure that the same decision would undoubtedly have been reached without the procedural error.

The claimant, serving a life sentence and recalled to custody after alleged assaults on his partner, challenged the Parole Board’s decision not to direct his release. He had been acquitted when the prosecution offered no evidence, although a restraining order was made.

Before the Board, written evidence concerning the alleged assaults and police intelligence about other suspected conduct was considered. The police intelligence was supplied on the morning of the oral hearing. The claimant argued that reliance on the complainant’s statements and late police material was procedurally unfair.

The central issues were whether the Board could rely on hearsay concerning the alleged assaults, and whether admitting and relying on the late police intelligence without an adjournment denied the claimant a reasonable opportunity to answer the case against him.

1. Fairness. The hearing had to be conducted fairly, having regard to the importance of the claimant’s liberty and to whether he had a reasonable opportunity to answer the case. The court had to assess the overall fairness of the procedure in the circumstances of the case, while considering the Panel’s own approach to fairness.
2. Hearsay and the alleged assaults. The Board was entitled to receive hearsay and written statements when assessing risk. There was no rule requiring the complainant to give oral evidence before the Board. The claimant had notice that the alleged assaults were relied upon and could have applied under rule 15 of the Parole Board Rules 2004 for the complainant to be called. The Board was therefore entitled to determine the issue on the evidence before it.
3. Acquittal. The acquittal did not establish that the claimant had not committed the alleged offences. The principle in Hollington v F Hewthorn & Co Ltd [1943] KB 587 applied.
4. Late police intelligence. The intelligence was potentially important to risk and credibility. Its provenance was unknown and it might have been remote hearsay. It was supplied without meaningful notice and gave the claimant no realistic opportunity to investigate, rebut or challenge it. The Panel should have considered its admission, reliability and veracity, and whether an adjournment was necessary under rule 8 of the Parole Board Rules 2004. The failure to request an adjournment did not make the procedure fair in these circumstances.
5. Materiality and remedy. Applying the approach in Lawrence v The Attorney General (Grenada) [2007] UKPC 18, the court could not say that the same decision would undoubtedly have been reached without the unfairly admitted evidence. The Parole Board’s decision was quashed and the matter was remitted for redetermination by a new panel at an oral hearing. Costs followed the event. Permission to appeal and a stay were refused.

First-instance judicial review proceedings. The claimant challenged the Parole Board’s decision dated 5 September 2011. The claim was allowed, the decision was set aside, and the matter was remitted to a new Parole Board panel for an oral hearing.