On 5 April 2023, the Supreme Court handed down judgment in Pearce, unanimously upholding Parole Board guidance on the approach to unproven allegations in deciding whether to direct a prisoner’s release. The Court held that, subject to the requirements of procedural fairness and public law rationality, the Board may take into account allegations against a prisoner which have not been proven to the civil standard and accord them such weight as it considers appropriate.
Ben Collins KC of Old Square Chambers (leading Sarah Sackman of Matrix Chambers and Conor Fegan of Francis Taylor Building) successfully appeared for the Parole Board, instructed by the Government Legal Department.
The question before the Court concerned the Board’s process in deciding whether to direct the release of a prisoner. Specifically, the Court considered the approach to be taken by the Board to potentially relevant, but unproven, allegations made against the prisoner. Those allegations may relate to conduct in prison, but also to conduct outside it prior to his sentence commencing (as, for example, in the Worboys Case: R (DSD) v Parole Board  QB 285, Ben Collins KC and Robert Moretto of Old Square Chambers for the Board) or whilst on temporary licence.
Mr Pearce was sentenced to imprisonment for public protection in 2010 following conviction for sexual offences. In March 2019, guidance was issued following the Worboys decision permitting the Board to make an assessment of allegations which are not proven to the civil standard. In May 2019, the Board declined to direct Mr Pearce’s release, partly in reliance on the March 2019 guidance. It took into account allegations of other sexual offences against Mr Pearce and his responses when questioned about those allegations.
The Court held that there is no general rule of law or rule of substantive fairness which requires the Board to undertake a two-stage approach of: (i) making findings of fact on the balance of probabilities; and (ii) only treating those matters on which it has made findings of fact as relevant to assessing risk.
If weight is to be accorded to an allegation, the Board should first attempt to investigate the facts to make a finding of truthfulness. Where it is unable to do so, it does not follow that the allegation is irrelevant and must be disregarded. The Board may take the allegation into account and may accord it such weight as it considers appropriate in a holistic assessment of the information before it. There is therefore no requirement that must be implied into statute which obliges the Board to disregard the possibility that such an allegation may be true, nor is there any statutory limitation to taking into account only facts proven to the civil standard, as is the requirement in other contexts (see e.g. Re H (Minors)  AC 563).
The Court emphasised that the Board’s assessment remains subject to a requirement of fair procedure and the constraints of public law rationality. Procedural fairness requires giving the prisoner an opportunity to state their position and argue that no reliance be placed on the allegation. Constraints of rationality may require the Board to make findings of fact where reasonably practicable to do so and to refrain from irrational reliance on insubstantial allegations.
The Court invited the Board to review its guidance in light of the judgment to make clear that it should, if it reasonably can, make relevant findings of fact.
The Supreme Court also upheld the judgment of the Divisional Court in R (Morris) v Parole Board  EWHC 711 (Admin). Morris was another case in which the Board took into account allegations against a prisoner and the Divisional Court rejected the challenge that the Board was obliged to ignore those allegations. It further held that the Board’s assessment of risk is a matter of judgment for the panel. Given that the Board is not determining a criminal charge, it is concerned only with the assessment of a more than minimal risk of further serious offences being committed in the future. Robert Moretto of Old Square Chambers acted for the Parole Board.
On 5 April 2023, the Divisional Court handed down judgment in Bailey. This followed its finding in March 2023 that the Secretary of State had acted unlawfully in instructing staff not to give a view on the question whether a prisoner is suitable for release. That prohibition has since been removed by the Parole Board (Amendment) Rules 2023 which came into force on 3 April 2023 in response to the Divisional Court’s ruling.
Following its judgment in March, the Court asked for submissions as to whether a refusal to give a view on suitability for release, when asked to do so by the Board, could amount to a contempt of court. The Secretary of State argued that the Board is not a court to which the law of contempt applies, but the Divisional Court held that it is, and that the Board exercises the judicial power of the State. Recognition of the Board as a court for these purposes is a significant step, although the Court held that the Board cannot itself punish contempt of court, with any such proceedings to be brought in the High Court under CPR Part 81.
The Secretary of State has been given the opportunity to make submissions on the facts before the Court decides whether to initiate contempt proceedings.
Ben Collins KC of Old Square Chambers (leading Nicholas Chapman of Temple Garden Chambers and Michael Rhimes of Francis Taylor Building) appeared for the Parole Board
*This case summary was written by Old Square Chambers pupil, Gareth Deane.
William Meade (Senior Clerk)