Parole Board guidance unlawful, rules Court of Appeal, in case argued by Philip Rule and Jake Rylatt of No5

Fri, 14 Jan 2022

In its judgment of 14 January 2022 the Court of Appeal (Civil Division) considered the lawfulness of the Parole Board’s Guidance on Allegations, which was published on 11 April 2019. This was produced for the use of parole panels conducting parole reviews following the Divisional Court’s decision in R (D and another) v Parole Board and another [2019] QB 285, better known as the ‘Worboys’ case.

The 2019 Guidance had since been amended and re-issued in July 2021 (to “reflect the judgments”, as the Parole Board suggested, in the cases of R (Morris) v Parole Board [2020] EWHC 711 (Admin); [2020] A.C.D. 119; [2020] All ER (D) 180 (Mar) and Pearce v Parole Board [2020] EWHC 3437 (Admin); [2020] 12 WLUK 203).  In those previous judgments the lower courts had not accepted that the Guidance was unlawful.

The Court of Appeal unanimously agreed  with the submissions of Philip Rule, leading Jake Rylatt, both of No5 Barristers' Chambers and representing the appellant, that the Guidance is unlawful. The Court held that the Guidance is wrong in its advice to panels regarding the use of unproven allegations in the assessment of risk, and both versions of the Guidance were unlawful as a misstatement of the law in this respect.

The Supreme Court’s recent guidance to identifying unlawful policies in R(A) v Secretary of State for Home Department [2021] 1 WLR 3931 was applied.

Following this ruling it will now be clear that any judicial decision of the panels of the Parole Board must be based on findings of fact, made by a fair process and based upon information properly and fairly adduced before a panel. There is no room for decisions about liberty to be taken by embarking down the route of ‘no smoke without fire’. This decision is a welcome reversal to the proposal of the Parole Board that there should be decision-making and determinations reached on a basis of any matter that had not been shown to be more likely than not to be a fact.

The appellant’s solicitor was Reise Luke of Instalaw solicitors.

The full judgment is available at:

https://www.bailii.org/ew/cases/EWCA/Civ/2022/4%C3%BF.html

The hearing was streamed on YouTube:

(morning session) https://www.youtube.com/watch?v=9oKcE1huLp0

(afternoon session) https://www.youtube.com/watch?v=RhcINAaCR1M

Philip Rule and Jake Rylatt are public law specialists at No5 Barristers' Chambers.

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