The Parole Board sometimes has to assess the risk of release when it cannot establish exactly what happened in the past. The Supreme Court held that an unresolved allegation can be relevant to that assessment. The Board must investigate where it reasonably can, distinguish established facts from uncertainty, and give the prisoner a fair opportunity to respond.
The Board and the statutory test
The Board decides whether certain prisoners should be released before the end of the sentence imposed by the court. Across the relevant categories the statutory test is in substance the same. Section 28(6)(b) of the Crime (Sentences) Act 1997, for example, provides that the Board shall not direct release unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The prisoner otherwise remains in custody under the existing sentence. The Board acts judicially and independently. Its process is essentially inquisitorial. It must consider material supplied by the Secretary of State and any other information it obtains, and it is not confined to evidence that would be admissible at a criminal trial. Where it finds facts it applies the civil standard of proof. It is not trying a criminal charge, and no conviction or punishment results from its conclusions.
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The Guidance
The Board’s Guidance on Allegations described several possible responses to disputed information. A panel could disregard it, investigate it and make findings, or assess whether it could fairly contribute to a decision on risk. Its source, the surrounding facts, supporting evidence and the prisoner’s response all mattered. The controversy concerned the last option, where a panel could reach no conclusion on the balance of probabilities.
Mr Pearce’s case
Mr Pearce was serving a sentence of imprisonment for public protection. At a parole review the panel questioned him about allegations of sexual misconduct that had not led to convictions. It found some parts of his evidence implausible and made findings about circumstances surrounding some of the allegations. It declined to direct release and recommended a move to open conditions.
The High Court upheld the decision and the guidance. The Court of Appeal accepted the panel had been entitled to test Mr Pearce’s evidence, but declared parts of the guidance unlawful. In its view the Board had to make findings of fact before it could use the material to assess risk. The Board appealed that declaration.
No universal rule of fact and non-fact
The judges distinguished a fact that the law requires someone to prove from evidence bearing on a prediction. A court may need to decide whether a specified event happened before a legal entitlement arises. The parole decision calls for a different judgment about future danger. A panel may learn something about risk from circumstances that it can establish, even if those circumstances do not prove the allegation itself.
Different statutory tests can produce different answers. For example, the threshold for taking a child into care protects a family from intervention based on suspicion. A prisoner being considered for early release is already lawfully detained under a sentence. The Board must be satisfied that continued detention is no longer necessary for public protection. The care-order threshold could not simply be carried across to parole decisions.
Fairness and the use of allegations
The question is one of statutory interpretation in its legal context, not of a free-standing rule of substantive fairness. Procedural fairness requires an impartial decision-maker and a proper opportunity to be heard. Given what is at stake, an oral hearing will often be required where important facts are disputed. The Board must keep in mind the hardship of continued imprisonment if confinement is no longer necessary, while giving preponderant weight, in Sir Thomas Bingham MR’s words in Ex p Watson, to the protection of the public. Its task is to apply the statutory test, not to conduct a free-standing balancing exercise.
There is no implied statutory rule that only admitted facts, or facts proved on the balance of probabilities, may be considered. Where an allegation could affect the risk assessment, the Board should, so far as reasonably practicable, investigate it and make such findings as it can about the allegation or its surrounding circumstances. The prisoner must have a fair opportunity to challenge the material. Findings may be impossible where evidence cannot be obtained, witnesses will not attend, or it would be unfair to require an answer because criminal or disciplinary proceedings are pending. Inability to find that an allegation is true does not automatically make it irrelevant. The prisoner’s response may itself be relevant, as it was in Mr Pearce’s case. Established surrounding facts may indicate risk even if the overarching allegation is not proved. A number of similar allegations from independent sources may, in some cases, support a conclusion that a course of risky conduct occurred, or similarities may provide mutual corroboration. A single unproved allegation may still form part of a holistic assessment if the Board is concerned that there is a serious possibility it is true.
That course requires considerable caution and an opportunity for the prisoner to make submissions about how the Board should proceed. Sometimes the information will be too inadequate to be taken into account at all. The weight given to an allegation is for the Board, subject to public-law rationality. A failure to find facts where that was reasonably practicable, or irrational reliance on insubstantial allegations, may be challenged. The Court did not read the authorities relied on below, including Delaney, as requiring a rigid two-stage process in every case.
The Guidance
On that analysis, the passages which allow a panel to assess an allegation without a finding of fact are not unlawful, although they apply only where a finding cannot fairly or practicably be made. The Guidance could be clearer. Paragraphs suggesting that a panel “may” make findings, and the contrast between those short statements and the fuller discussion of levels of concern, give insufficient emphasis to finding facts wherever possible. The expression “mere allegation” is unhelpful. The focus should be on the quality of the evidence and on what can be established about the allegation or its circumstances, rather than on a dichotomy between a bare report and an allegation with some factual basis. A bare accusation, without material indicating its source and circumstances, will generally be incapable of informing the statutory question, but such cases are likely to be rare.
Verdict: The Court unanimously allowed the Board’s appeal and held its guidance lawful. It invited the Board to revise the wording to give greater emphasis to finding facts wherever reasonably practicable. The decision on Mr Pearce’s own release was no longer in issue.
Source: R (on the application of Pearce and another) v Parole Board of England and Wales [2023] UKSC 13
