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

A Parole Board panel must ensure that a proper record is made of each hearing, particularly of the evidence, where proceedings are not audio- or video-recorded. The chair’s note recording the evidence and proceedings is the Board’s official record, although deliberative notes made solely to assist decision-making remain confidential and must not be disclosed. A policy requiring destruction of the record after nine months is unlawful. The record need not routinely be transcribed or disclosed, but it must be retained and examined where a dispute arises about evidence which may affect judicial review or a later hearing.

The claimant, serving an indeterminate sentence for public protection, challenged the Parole Board’s refusal to provide the chair’s notes from a hearing. The decision letter recorded alleged changes in his account of the offence and an unpursued assault allegation. His solicitor disputed the accuracy of that account, but the notes had been destroyed under the Board’s nine-month retention policy.

The judicial review concerned whether the Board was obliged to maintain a record of proceedings, whether the record had to be made available to resolve an evidential dispute, and whether the destruction policy was lawful.

1. The court held that the Parole Board is responsible for ensuring that a proper record is made of every hearing, particularly the evidence given. Because the proceedings were not recorded electronically, the chair’s full note of the evidence and proceedings constituted the record. The Board was wrong to contend that it had no control over those notes. This followed R v Parole Board ex p Gittens (Times 3, February 1994).

2. The court distinguished the chair’s record from notes made by the chair or another panel member solely to assist preparation of the decision. Deliberative notes were confidential, analogous to a preliminary draft judgment, and could never be disclosed. They did not form part of the official record.

3. The policy of destroying all notes after nine months was unlawful. The record could be needed to resolve an immediate dispute about what was said, to support judicial review, or to assess evidence at a later Parole Board hearing. The public interest in retaining records of a body determining a person’s liberty reinforced that conclusion. It was difficult to justify destroying the record when the underlying dossier was retained for at least 20 years.

4. The record did not have to be transcribed or disclosed routinely. Where a dispute arose, the chair should first compare the record with the other available accounts and attempt to resolve the issue pragmatically. If reconciliation was impossible, the chair’s record would prevail and could be made available when necessary. This approach was consistent with the analogous treatment of judicial and tribunal notes in Greene v Half Moon Bay Hotel [2009] UKPC 23 and R(DLA) 3/08.

5. The notes sought in this case had been destroyed, so no specific disclosure order was made. The Board accepted that a record had to be kept, and the court held that the nine-month destruction policy could not lawfully continue. The Board was left to determine an appropriate retention and disclosure policy.