Allegations in the Supreme Court: The Rejection of a Binary Approach to Evidence

On 13 October 2010, Mr Pearce (the Respondent in the Supreme Court) was sentenced to an indeterminate sentence for public protection with a minimum term of 3½ years following his conviction for sexual offences against two women. His minimum term expired on 7 November 2013. As such, Mr Pearce was entitled to regular reviews by the Parole Board (the Appellant in the Supreme Court) to consider whether it was necessary for the protection of the public that he remained confined.

In March 2018, the Secretary of State for Justice (SSJ) referred Mr Pearce's case to the Parole Board (the fourth review of his detention). On 20 May 2019, a panel of the Parole Board, following an oral hearing held on 9 May 2019, decided that Mr Pearce should not be released (they did, however, recommend to the SSJ that he should be transferred to open conditions). The Parole Board considered reports in the dossier that highlighted unproven (and non-convicted) allegations of a sexual nature against him. Mr Pearce was questioned by the panel about these allegations.

Mr Pearce sought to judicially review the decision of the Parole Board not to release him on two grounds: (1) there was procedural unfairness and failing in the manner or system by which the Parole Board reached its decision (contrary to common law and/or Article 5(4) ECHR requirements of fairness); and (2) the policy or guidance issued by the Parole Board to purportedly govern the treatment of non-conviction allegations in parole reviews did not meet the requirements of fairness to be observed as a matter of common law and/or of Article 5(4) ECHR. On 3 October 2019, permission to apply for judicial review was granted (Johnson J).

At first instance, the Administrative Court (Bourne J) dismissed the claim for judicial review and held that the there was no procedural unfairness by the Parole Board, and that the guidance they had issued in 2019 was not unlawful (R (Pearce) v Parole Board & Secretary of State for Justice (2020) EWHC 3437 (Admin)). The Parole Board however reissued their guidance upon allegations in 2021 to take into account both the judgment of Bourne J and that of the Divisional Court in R (Morris) v Parole Board & Secretary of State for Justice (2020) EWHC 711 (Admin).

Mr Pearce sought permission to appeal to the Court of Appeal on three grounds: (1) the judge had been wrong to find that the published guidance on allegations was lawful; (2) the judge had been wrong in law to regard the occasions where it was appropriate to embark on an evaluation and exploration of unproven criminal allegations as commonplace rather than applicable to exceptional situations; and (3) the judge had been wrong to find (i) that it was not unfair of the panel to decide the case on the basis of having concerns over matters of unproven allegations as to which it had made no findings of fact, and/or (ii) that an error of that nature might be challenged as irrational or Wednesbury unreasonable without recognising the intrinsic and antecedent procedural unfairness and visited by that approach. Permission to appeal was granted on 28 May 2021 (Macur LJ).

The Court of Appeal (Lewison, Macur & Snowden LJJ) allowed in part and dismissed in part the appeal of Mr Pearce by holding that: (1) the published guidance on allegations was unlawful to the extent that it allowed information that was not proven to be taken into account in its decision making; but (2) dismissed the appeal on the facts of Mr Pearce's case (R (Pearce) v Parole Board & Secretary of State for Justice (2022) EWCA Civ 4; (2022) 1 WLR 2216).

The Parole Board sought permission to appeal to the Supreme Court. Permission was granted on 8 August 2022 (Lords Hodge DPSC and Leggatt & Lady Rose). The agreed issues before the Supreme Court were: (1) whether the Parole Board, in discharging its statutory function of risk assessment in order to determine whether it was necessary for the protection of the public that the prisoner should be confined, (a) had to base its assessment of risk on facts established to the civil standard or (b) could it take into account allegations which it considered relevant, and which had some evidential basis, but in respect of which it had not found facts proved to the civil standard; and (2) whether the Parole Board's guidance on allegations misstated the law in relation to issue (1).

Held, in allowing the appeal (Lords Hodge DPSC & Hughes, with whom Lords Kitchin, Hamblen & Richards agreed), inter alia, that (1) there was no general legal principle or rule of procedural fairness that in making an assessment of risk the Parole Board could have regard to evidence or information only if it had been established as a fact by admission or on the balance of probabilities; (2) the Crime (Sentences) Act 1997, s. 28(6), did not contain an implicit requirement that the Parole Board had to disregard the possibility that an allegation against a prisoner (which had not been established as true) might be true; however, the Parole Board must have regard to the consequences of its decision if a prisoner no longer needed to be confined for the protection of the public; (3) if the Parole Board were to give weight to an allegation in their assessment of risk, they must first attempt to investigate them to enable it to make findings on the truthfulness of the allegation and, if it were unable to make such a finding, to make findings as to the surrounding circumstances which might or might not point to behaviour which was relevant to an assessment of risk; (4) the Parole Board's guidance was not unlawful; however, it could be redrafted to emphasise the importance of making proper findings of fact when it was possible to do so and the requirements of procedural fairness.

Commentary

This case is a culmination of a string of cases relating to allegations of additional offending and how the Parole Board is to deal with them when determining whether to release a prisoner (see R (DSD) v Parole Board & Secretary of State for Justice (2018) EWHC 694 (Admin); (2019) QB 285; R (Delaney) v Parole Board (2019) EWHC 779 Admin; R (Morris) v Parole Board (2020) EWHC 711 (Admin); R (Pearce) v Parole Board & Secretary of State for Justice (2022) EWCA Civ 4; (2022) 1 WLR 2216; see also Beetham, A. ‘An allegation as proof of a crime’ (2019) 83 Journal of Criminal Law 304).

The Parole Board, in determining whether a prisoner should be released, applies the statutory test for release: the panel must be ‘…satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined’ (Crime (Sentences) Act 1997, s. 28(6)(b); at (7)). If the prisoner's confinement is not necessary, they must be released.

Whether it is necessary for a prisoner to remain confined is not straightforward, and several factors can come into play when a panel of the Parole Board considers a referral from the SSJ. One factor (and the most relevant in this case) is whether there are any unproven and non-convicted allegations or complaints against the prisoner, which make the task less straightforward. Examples can include:

First, possible criminal proceedings, outstanding criminal proceedings or even non-pursued criminal proceedings (see R (DSD) v Parole Board & Secretary of State for Justice). Possible and outstanding criminal proceedings are common in recall cases (prisoners who have been released on licence but have been recalled to prison following an alleged breach) specifically where the alleged breach of licence is the commission of a further offence. The approach normally taken by the Parole Board in such circumstances is to adjourn pending confirmation of whether charges will be brought against the prisoner or the conclusion of those charges (depending upon timescales) so that a more accurate assessment of risk can be undertaken. Non-pursued criminal proceedings can arise in any Parole Board case (as both DSD and Pearce highlight). In Pearce, the allegations it related to eight separate matters, six of which were sexual allegations (at (22)).

Second, proven or non-proven disciplinary offences within the prison (see Prison Rules 1999 (SI. 1999/728), r. 51 (as amended)). A prisoner can be charged with an offence contrary to prison discipline, which may mirror their index offence, and is therefore relevant to risk. For example, a prisoner could be charged with offences that suggest an involvement with drugs (failing of a drug test, or possession of an unauthorised article).

Third, previous convictions with which the circumstances or legal basis are disputed. Allegations can arise in cases whereby a prisoner disputes the circumstances of an offence (rather than the fact of the conviction itself) and how it relates to their risk. For example, a prisoner convicted of an offence which at the time could be committed both consensually and non-consensually (such as buggery under Sexual Offences Act 1956, s. 12; see R v Courtie (1984) AC 463 at 471) and has later been convicted of a non-consensual offence (such as rape). How far consensual activity can impact upon the assessment of risk can be addressed in the same way. This is much less common than the other two examples.

Regardless of which of the examples given above is most relevant, the primary question the Parole Board panel must address itself to is whether the complaint or allegation would affect whether the prisoner meets the test for release (at (12 & 51)). This aspect of the case was never in dispute. However, what was in dispute was the standard of proof by which the allegations should be assessed (at (13)) and whether, if they did not meet the suggested standard, they could be disregarded (at (17)).

Before commenting, it is important to recognise (and emphasise) that an allegation of itself does not answer the question of whether a person meets the test for release. An allegation may not necessarily increase a prisoner's risk to public (or disprove a decrease in risk). A prisoner may still meet the test for release regardless of an allegation being established and procedures are in place to address this if the reasoning in a decision is suggested by one of the parties as erroneous (Parole Board Rules 2019 (SI. 2019/1038, r. 28 (as amended)).

The Parole Board is, as has been widely accepted for some time, a court (at (3)). It is not however a criminal court, and its role is not to retry the cases that come before it: the Parole Board considers all prisoners as correctly convicted; it cannot function in any other way. As such, given the civil nature of the proceedings, the Parole Board employs the civil standard of the balance of probabilities (at (13)). It was suggested by Mr Pearce that if an allegation could not be established, it was a ‘non-fact’ (at (17)). This was rejected by the Supreme Court. The Court concluded that a panel cannot be legally compelled to only have regard to facts that have been established on the balance of probabilities but can take into account the possibility a non-established allegation may be true (at (44 & 73)).

A Parole Board panel must take into account all of the material put before it when assessing risk (R (Sim) v Parole Board (2003) EWCA Civ 1845; (2004) QB 1288). However, safeguards must be in place out of common law principles of fairness to the prisoner (see R (Osborn) v Parole Board (2013) UKSC 61; (2014) AC 1115). The principles of fairness may require that, to test the allegation, an oral hearing is required or that an adjournment is required for further information before an assessment of risk can be undertaken (e.g. a prisoner can make an application under Parole Board Rules 2019, r. 6). Fairness to the prisoner must be at the forefront of the panel's mind, and a failure to give consideration to adverse consequences of a decision would amount to a failure to take into account a relevant consideration (at (69–70)) and may make the decision susceptible to a public law challenge by way of judicial review. A panel's powers to gather information is unfortunately limited (at (13)).

In considering a complaint or allegation, a panel can place such weight upon them as they feel the evidence accords provided that the panel has undertaken a full assessment of the circumstances as they appear from the evidence and allowed the prisoner to question the evidence (considering the principles of fairness) before a determination is made upon it. Only then can the panel determine whether complaint or allegation affects whether the test for release is met. However, it is not always possible to establish a complaint or allegation, and therefore a panel may not be able to reach a conclusion as to the truth (at (76)). The reality for most prisoners is that truth is something which is often locked away, along with their liberty.