Allegations in the Supreme Court: The Rejection of a Binary Approach to Evidence
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/00220183231212676 |
| Author | Andrew Beetham |
| Date | 01 December 2023 |
Allegations in the Supreme Court:
The Rejection of a Binary Approach
to Evidence
R (Pearce) v Parole Board & Secretary of State for
Justice [2023] UKSC 13; [2023] AC 807
Keywords
Indeterminate sentence prisoner, release on licence, guidance on allegations, procedure for
Parole Board panel
On 13 October 2010, Mr Pearce (the Respondent in the Supreme Court) was sentenced to an indetermin-
ate 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, recom-
mend 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
Case Note
The Journal of Criminal Law
2023, Vol. 87(5-6) 428–431
© The Author(s) 2023
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DOI: 10.1177/00220183231212676
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