R (on the application of Pearce and another) v Parole Board of England and Wales

A Parole Board risk assessment is not confined to facts proved on the balance of probabilities. The Board should investigate relevant allegations and make findings where reasonably practicable. If reliable findings cannot fairly be made, it may still consider a serious possibility that an allegation is true as part of a cautious, holistic assessment.

Procedural fairness requires an opportunity for the prisoner to challenge the material and address how the Board should proceed. A material factual dispute may require an oral hearing. The Board must consider the consequences for the prisoner, assess the quality and weight of the available information, and act rationally. Guidance permitting this approach is lawful, although it should emphasise fact-finding and procedural safeguards more clearly.

The Parole Board declined to direct Dean Pearce’s release from an indeterminate sentence. Its assessment included allegations of sexual misconduct which had not resulted in convictions. Pearce sought judicial review of both the decision and the Board’s published Guidance on Allegations.

Bourne J dismissed the claim in [2020] EWHC 3437 (Admin). The Court of Appeal, in [2022] EWCA Civ 4; [2022] 1 WLR 2216, upheld the individual decision but declared parts of the Guidance unlawful. It held that risk assessment required a two-stage process: the Board must first make findings on the balance of probabilities and then rely only on the facts so established.

The individual decision was no longer disputed. The Supreme Court had to decide whether the Board may take account of the possibility that an unresolved allegation is true, and whether its Guidance lawfully permitted that approach.

1. Appeal allowed unanimously. Lord Hodge and Lord Hughes delivered a joint judgment with which Lord Kitchin, Lord Hamblen and Lord Richards agreed. The Board’s Guidance on Allegations was lawful. The Court of Appeal’s declaration of unlawfulness could not stand, although the Board was invited to review and clarify the Guidance.

2. The statutory task under section 28(6)(b) of the Crime (Sentences) Act 1997 is to decide whether the Board is satisfied that confinement is no longer necessary for public protection. There is no general rule that every item considered in assessing future risk must first be proved on the balance of probabilities. The binary approach applies to facts which the law makes facts in issue. It does not invariably apply to evidential material from which such facts or a future risk may be assessed.

3. Future risk is an evaluative and inherently imprecise question. As demonstrated by Shagang Shipping Co Ltd v HNA Group Co Ltd [2020] 1 WLR 3549 and Secretary of State for the Home Department v Rehman [2003] 1 AC 153, a decision-maker may consider the evidence globally and attach appropriate weight to a serious possibility which has not been established as more likely than not. The special rule governing the threshold for care orders under section 31(2) of the Children Act 1989 rests on its particular statutory language and policy. It cannot be transplanted into parole proceedings.

4. The Board should nevertheless investigate any potentially material allegation and make findings about its truth or surrounding circumstances where reasonably practicable. It may be unable to do so because sufficiently reliable evidence is unavailable or because fact-finding would prejudice pending criminal or disciplinary proceedings. An inability fairly to determine the allegation does not automatically make it irrelevant. The Board may use the allegation to test credibility, rely on established surrounding circumstances, or consider the cumulative significance of similar allegations from independent sources.

5. Procedural fairness is flexible and depends on the statutory context and interests at stake. The prisoner must have an effective opportunity to challenge the material and make submissions about whether and how it should be used. A material factual dispute may require an oral hearing, cross-examination and oral submissions where reasonably practicable. The Board must proceed with considerable caution, consider the hardship caused by unnecessary detention, and assess evidential weight rationally. Failure to make reasonably practicable findings, or irrational reliance on insubstantial material, may justify judicial review.

1. United Kingdom Supreme Court: In [2023] UKSC 13, unanimously allowed the Parole Board’s appeal and held the Guidance on Allegations lawful, while inviting its review and clarification.
2. Court of Appeal: In [2022] EWCA Civ 4; [2022] 1 WLR 2216, upheld the individual parole decision but declared that parts of the Guidance misstated the law by permitting reliance on unproven allegations.
3. High Court, Administrative Court: Bourne J in [2020] EWHC 3437 (Admin) dismissed the judicial review claim, holding both the procedure adopted in the individual case and the Guidance lawful.