Pearce, R (On the Application Of) v Parole Board of England And Wales & Anor

In a parole review, the Parole Board must consider relevant information about alleged further offending, even where the allegation has not been proved. It must act fairly and base its risk assessment on facts it has found, while distinguishing those facts from a finding that the allegation itself is established. There is no fixed evidential rule requiring the Board either to prove an allegation as at trial or to disregard it. The fairness of the procedure depends on the circumstances and the use made of the information. A prisoner’s responses, inconsistencies and lack of candour may be assessed without assuming guilt. The Board should investigate allegations sufficiently where they are fundamental to the review, but an evidential shortcoming will not necessarily make the procedure unlawful where the information was used only for a limited and rational purpose.

The claimant, serving an imprisonment for public protection sentence, challenged a Parole Board decision refusing release but directing transfer to open prison conditions. He alleged procedural unfairness under common law and article 5(4) of the European Convention on Human Rights, and challenged the lawfulness of the Board’s Guidance on Allegations.

The Board had considered several non-conviction allegations, including information about arrests, an acquittal, discontinued matters and DNA evidence. The claimant argued that the allegations had either to be proved through a proper evidential process or disregarded. The court first considered the Guidance and then whether the particular review had been procedurally unfair.

1. Ground 2 dismissed. The Guidance on Allegations was lawful. The court followed R (Morris) v Parole Board and Secretary of State for Justice [2020] EWHC 711 (Admin), both because a single High Court judge should not depart from a Divisional Court decision without compelling reason and because the Guidance was consistent with the governing principles.
2. The Board must consider all relevant information in assessing risk. It is not determining guilt for further alleged offences, but evidence of wider offending may form part of a global risk assessment. Fact-finding precedes risk assessment, and the civil standard applies to findings of fact. At the risk-assessment stage, the burden of proof has no real part to play.
3. There is no fixed rule as to the type or quantity of evidence required. The Board is not confined to criminally admissible material and may consider hearsay, while remaining alert to evidential limitations. It must act fairly, and fairness is assessed objectively by the reviewing court.
4. Where an allegation is not proved but is not disregarded, the Board should find such collateral facts as it can and assess their logical effect on risk. Mere allegations cannot, without more, establish risk, but proven surrounding facts may be relevant.
5. On the facts, the Board fairly assessed the claimant’s responses, inconsistencies and apparent lack of candour. Its limited use of the DNA-related allegation did not require a more rigorous investigation, because that finding was not used as the basis for a specific conclusion that he posed a danger of reoffending. The Secretary of State had not unlawfully omitted material from the dossier.
6. Ground 1 dismissed. The claim for judicial review was dismissed. Permission to appeal on Ground 2 was refused.

The judgment was a first-instance judicial review in the Administrative Court. Permission had been granted by Johnson J on 3 October 2019. The court dismissed both grounds and refused permission to appeal on Ground 2.