Wed, 05 Apr 2023
Today the Supreme Court reveals its judgment on the question of the permissible approaches for the panels of the Parole Board to take to unproven allegations. No5’s Philip Rule KC, leading Jake Rylatt, represented the respondent, instructed by Martin Bridger and Gintare Daukintyte of Instalaw solicitors.
It has decided that only facts in issue (in the legal meaning) need be proven as a general principle and that assessments and decisions about risk are not restricted to established facts but can be reached by having regard to the unproven matters also. How precisely this decision is to be implemented in practice in individual cases to be decided in future of course remains to be seen. The Court has indicated the stepped process by which decision-makers should proceed, only arriving at the use of unproven matters in the final alternative.
Despite finding the Parole Board’s guidance to be lawful the Court encourages the Board to revisit the terms of its guidance and make changes – so it remains to be seen what the terms of the guidance shall be precisely.
The Court’s summary (for the press) of its decision includes the following points (as further summarised) –
- Facts which are part of the material from which a fact in issue may be inferred do not need to be proved individually [34]. Evidence which is not sufficient to establish a fact on the balance of probabilities may still be relevant when the judicial body assesses the weight of other evidence in deciding whether a fact in issue is established [35]-[38].
- The particular two-stage approach in the Children Act 1989 is specific to the care order regime. It is mandated by the different language of the Children Act, and even in that context there is at least one situation in which an unproven possibility that a parent has harmed a child can be taken into account. The question whether the State is entitled to remove a child from home and family is not analogous to the question whether a prisoner who remains subject to a sentence can safely be released [47]-[64].
- risk may be assessed without the judicial body being able to find proven every foundation fact [34]-[46]. Depending upon the legal context, the judicial body can assess risk by weighing up the possibility that an allegation may be true having regard to the whole material before it [39]-[42]; [44]-[46]; [60]-[62].
- the Supreme Court finds no basis for the contention that fairness requires the Board to have regard only to proven facts in making its assessment [66]-[67]; [69]-[71]. Substantive fairness does not require a judicial body to treat as if they were facts in issue information which, on a proper analysis, is not of that nature [68].
- The Supreme Court invites the Board to review the Guidance in light of its judgment, to make clear that the Board should, if it reasonably can, make relevant findings of fact [74]; [89]. If an allegation could, if true, affect the Board's risk assessment, the Board's task, so far as it can, is to explore the nature of that allegation and its surrounding circumstances in order to make findings of fact where it is reasonably practicable to do so [74].
- Where the Board is not in a position to make findings of fact, either because there is insufficient material available, or it would not be fair to do so, but is concerned that there is a serious possibility that an allegation may be true, the Board may still take that allegation into account and give it such weight as it considers appropriate in a holistic assessment of all the information before it [76]-[77]; [87]; [90].
- In those circumstances, procedural fairness would require the Board to give the prisoner the opportunity to state their position in relation to the allegation and to argue that no or very little account should be taken of it [66]-[67]; [70]; [87]; [90].
- An oral hearing may also be required if the allegation is likely to be material to the risk assessment or if issues of explanation or mitigation are likely to arise [75].
- The Board's assessment of the weight to be attached to an allegation is subject to the constraints of public law rationality [87]; [93].
- In some cases, a holistic assessment of all the circumstances may persuade the Board that there is a significant chance, short of the balance of probability, that an allegation is true [79]; [83].
- Further, where the Board cannot make a finding as to the truth of an allegation, the allegation can also be used to test the credibility of the prisoner's account of their behaviour [78].
- There may be circumstances where, because of the inadequacy of the information, the Board concludes that it should not take account of an allegation at all [87].
At paragraph 87 the Court has summarised its conclusions as follows:
(i) There is no general legal rule that in making a risk assessment the Board must adopt a two-stage process of making findings of fact on the balance of probabilities and then treating only those matters on which it has made findings of fact as relevant to the assessment of risk.
(ii) The Board’s task is to address whether the safety of members of the public requires that the prisoner should remain confined. In so doing, the Board must have regard to the consequences of its decision on the interests of the prisoner, and the hardship he may suffer if he no longer needs to be confined in order to protect the public.
(iii) There is no rule of substantive fairness, akin to a legitimate expectation, which requires the Board to have regard only to found facts in its assessment of risk.
(iv) What procedural fairness requires of the Board in its impartial performance of its statutory remit is determined by the statutory terms of that remit and the wider legal context of the common law.
(v) If weight is to be given to an allegation of criminal or other misbehaviour in the risk assessment, the Board should first attempt to investigate the facts to enable it to make findings on the truthfulness of the allegation. If, as may often be the case despite its efforts to obtain the needed information, the Board is not able to make such a finding, it should investigate the facts to make findings as to the surrounding circumstances of the allegation which may or may not point to behaviour by the prisoner which is relevant to the assessment of risk.
(vi) In some circumstances, however, the Board may not be able to make findings of fact as to the truth of an allegation either because of an inability to obtain sufficiently reliable evidence or because it would be unfair to expect the prisoner to give an answer to the allegation when he is facing criminal or prison disciplinary proceedings in relation to that allegation.
(vii) In such circumstances the Board, having regard to public safety, may take into account the allegation or allegations and give it or them such weight as it considers appropriate in a holistic assessment of all the information before it, where it is concerned that there is a serious possibility that those allegations may be true. But the Board must proceed with considerable caution in this exercise because of the consequences of its decision on the prisoner. Procedural fairness requires the Board to give the prisoner the opportunity to make submissions about how the Board ought to proceed. There may be circumstances where, because of the inadequacy of the information available to the Board, it concludes that it should not take account of an allegation at all. There may also be circumstances where the information is less than would be desired but the allegation causes sufficient concern as to risk that the Board treats it as relevant. Its assessment of the weight to be attached to an allegation is subject to the constraints of public law rationality.
(viii) Thus, a failure to make findings of fact where it was reasonably practicable to do so or an irrational reliance on insubstantial allegations could be a ground of a successful public law challenge.
The judgment, and additional summary, is available here.
