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

The Parole Board may consider allegations of misconduct or offending which have not been proved, provided they are potentially relevant to risk and the prisoner is treated fairly. The Board is not determining criminal guilt and is not confined to evidence admissible in criminal proceedings. A mere allegation unsupported by any evidential basis cannot itself support a risk assessment. Where there is some factual basis, the Board may assess the allegation and its weight as part of a global risk assessment. The appropriate weight is ordinarily a matter for the Board’s expert judgment. Fairness is fact-sensitive. Guidance permitting consideration of unproven allegations is lawful when read as a whole and does not authorise reliance on mere allegations.

The claimant, serving an indeterminate sentence for an offence involving violence towards a former partner, challenged the Parole Board’s refusal to direct his release and its decision to recommend transfer to open conditions. The Board had considered two later allegations involving a former partner and another woman, neither of which had resulted in a criminal conviction.

The claimant alleged that consideration of the allegations was procedurally unfair and contrary to article 5(4) of the ECHR. He also challenged the Board’s Guidance on Allegations, arguing that it permitted reliance on unproven allegations without a sufficient factual basis. The central issues were whether the Board could consider unproven allegations, what evidential basis was required, and whether the guidance was lawful.

1. Application dismissed. The refusal to direct release was not procedurally unfair. No rehearing was ordered, and the Guidance on Allegations was not unlawful.
2. The statutory question was whether the Board was satisfied that confinement remained necessary for public protection under section 28(6)(b) of the Crime (Sentences) Act 1997. The Board was assessing future risk, not determining a criminal charge. It could consider relevant information, including hearsay and evidence of alleged wider offending, subject to fairness.
3. The Board was not required to disregard the 2014 and 2017 allegations merely because they had not been proved to the civil or criminal standard. The authorities established that consideration of potentially relevant allegations was not exceptional. The decisive constraint was fairness.
4. A distinction had to be drawn between a mere allegation with no evidential basis and an allegation supported by some material. The former could not properly found a conclusion that the prisoner presented a particular risk. The latter could be considered, even if the available material was insufficient to establish the allegation on the balance of probabilities. In the present case, the arrest, admissions, retracted statement, police material and harassment warning supplied a sufficient, though limited, factual basis.
5. The weakness of the evidential basis affected the weight to be given to the allegations rather than the fairness of considering them. The Board had not found the allegations proved and its principal concerns related more broadly to disclosure, relationships, licence compliance and risk management. Its approach was not irrational.
6. The guidance was lawful. Read as a whole, it required relevance and weight to be assessed carefully and permitted an allegation to be disregarded where appropriate. It did not authorise a “no smoke without fire” approach or reliance on an unsupported allegation.