The Supreme Court has handed down judgment in Pearce finding that the Parole Board’s guidance on the unproven allegations against a prisoner is lawful. Sarah Sackman acted for the successful Parole Board.
The issue in this appeal is what approach the Parole Board may properly take, when deciding whether or not to direct the release of a prisoner, to potentially relevant allegations made about the prisoner which have not been proved to the civil standard. The Supreme Court held that, subject to the rules of procedural fairness and provided the Board acts rationally, it may take into account allegations in its global assessment of a prisoner’s risk to the public.
This is a significant case not just for prison lawyers but those acting for any public body engaged in assessing risk.
The Court summarised its conclusions at para. 87 of its decision:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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. Its assessment of the weight to be attached to an allegation is subject to the constraints of public law rationality.
- 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.