McGetrick, R (on the application of) v The Parole Board & Anor

The Parole Board must consider relevant material bearing on the risk posed by a prisoner’s release, including hearsay and allegations of misconduct or offending that were never prosecuted or proved. The Board is not deciding criminal guilt. It must assess the reliability and weight of the material, allow the prisoner a proper opportunity to respond, and consider matters such as the absence of corroboration, lost evidence, delay and the failure to prosecute. Section 239 of the Criminal Justice Act 2003 requires consideration of documents supplied by the Secretary of State, but does not require the Board to give them any particular weight. Published dossier guidance concerning pre-trial evidence applies to the proved circumstances of offences, not necessarily to unadjudicated conduct relevant to risk.

The claimant, an extended sentence prisoner, challenged the intended use by the Parole Board of allegations concerning pre-trial conduct for which he had not been convicted. The material included a prosecution case summary and police witness statements concerning alleged communications, child abuse and other conduct. The Secretary of State had included it in the dossier, and the Board had adjourned consideration of re-release pending resolution of the legal issue.

The claimant argued that the Board had power to exclude the material, that its inclusion breached Prison Service Order 6000, and that reliance on it would be procedurally unfair. The central issues were the construction of section 239 of the Criminal Justice Act 2003, the scope of the dossier guidance, and the requirements of fairness in risk assessment.

1. Claim dismissed. The Board had not misdirected itself by concluding that it could not exclude the untried material from consideration as a matter of statutory duty.
2. Section 239(3) of the Criminal Justice Act 2003 requires the Board, when making its substantive recommendation, to consider all documents given to it by the Secretary of State. Section 239(4) reinforces that construction by requiring cases to be decided on the evidence adduced before the Board. The Board may nevertheless determine the evidential weight of each document, ranging from substantial weight to none. (paras [21]-[26])
3. Appendix Q to Chapter 8 of Prison Service Order 6000 concerns pre-trial evidence relating to the offences of which the prisoner was convicted or to which he pleaded guilty. It does not prevent the Secretary of State from providing relevant evidence about unprosecuted or unadjudicated conduct bearing on future risk. (paras [27]-[34])
4. The Board’s function is risk assessment, not a determination of guilt or innocence. It must consider all relevant information, including hearsay and evidence of misconduct or offending before, during or after the sentenced offending, together with relevant evidence of good conduct. The civil standard of proof is not the governing framework for risk evaluation. (paras [31]-[33])
5. Fairness does not necessarily require exclusion of disputed hearsay or untried allegations. The prisoner must have a proper opportunity to respond. The Board must evaluate the material in context and take account of the absence of cross-examination, the failure to prosecute, the loss of the computer and the passage of time. On those facts, there was no basis to conclude that consideration of the material would necessarily breach natural justice. (paras [35]-[37])

Mr Justice King agreed with Lord Justice Stanley Burnton. The claim was dismissed.