The Queen (on the application of Dean Pearce) v The Parole Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | Lewison LJ,Snowden LJ,Macur LJ |
| Judgment Date | 14 January 2022 |
| Neutral Citation | [2022] EWCA Civ 4 |
| Docket Number | Case No: C1/2021/0297 |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 4
Lord Justice Lewison
Lady Justice Macur
and
Lord Justice Snowden
Case No: C1/2021/0297
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DEIVISON
ADMINISTRATIVE COURT
MR JUSTICE BOURNE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Philip Rule and Mr Jake Rylatt (instructed by Instalaw Solicitors) for the Appellant
Ms Sarah Sackman and Mr Conor Fegan (instructed by the Government Legal Department) for the Parole Board
Mr Myles Grandison (instructed by the Government Legal Department) for the Secretary of State for Justice
Hearing date: 24 November 2021
HTML VERSION OF APPROVED JUDGMENT
Introduction
This appeal is made against the decision of Bourne J ( [2020] EWHC 3437 (Admin)) refusing Dean Pearce's application for judicial review of the decision of the Parole Board of England and Wales (“the Board”) dated 20 May 2019, which refused to direct his release from prison. The legal issue in the appeal is the lawfulness of the Board's Guidance on Allegations, (“the Guidance”), which was published on 11 April 2019 for the use of panels conducting a parole review following the Divisional Court's decision in R (D and another) v Parole Board and another [2019] QB 285.
Dean Pearce's case was determined in accordance with the 2019 Guidance. The Guidance has since been amended to “reflect the judgments” in the cases of R (Morris) v Parole Board [2020] EWHC 711 (Admin) and Pearce (extant) and was re-issued in July 2021.
I consider that the 2019 Guidance is wrong in its advice to panels regarding the use of unproven allegations in the assessment of risk and I do not regard the amendments made in 2021 rectify the error. Consequently, I regard both versions of the Guidance to be unlawful as a misstatement of the law in this respect.
Nevertheless, for the reasons I give later in this judgment, and subject to my Lords, I would dismiss this appeal on the merits for although at paragraph [28] of his judgment Bourne J found that the Guidance was lawful, his analysis of the Board's decision in this case proceeded on a different footing and is unassailable on appeal.
The Statutory framework
Paragraphs [4] to [9] of the judge's judgment correctly summarise the relevant statutory provisions that apply in parole reviews. For the purpose of the arguments advanced in the appeal it is sufficient to note the following.
By virtue of section 239 (3)-(4) of the Criminal Justice Act 2003 (“the 2003 Act”) the Board when advising the Secretary of State for Justice (“the SSJ”) on the early release or recall of prisoners must consider (a) any documents given to it by the SSJ, and (b) any other oral or written information obtained by it, including the report of any delegated member who has interviewed the offender in relation to that ‘information’. It must also act on consideration of “all such evidence as may be adduced before it.”
A panel convened to determine an offender's future risk to the public will be expected to follow the procedure set out in the Parole Board Rules in force from time to time, as made by the SSJ under section 239(5) of the 2003 Act.
The Board is entitled to produce, but is not under a duty to issue the Guidance under review pursuant to Schedule 19, paragraph 1(2) of the 2003 Act; however, in so far as it has decided to promulgate the same, it must take care not to misstate the law, or to present a misleading picture of the legal position: see R(A) v Secretary of State for Home Department [2021] 1 WLR 3931 at [46].
The decision in R (D and another) v Parole Board and another [2019] at 285
John Radford (formerly Worboys), a licensed taxi-cab driver, was convicted of 19 serious sexual assaults against 12 female passengers in an 18-month period between October 2006 and February 2008. He was sentenced to an indefinite term of imprisonment for public protection with a specified minimum term of 8 years before he could be considered for release.
In civil proceedings brought against the Metropolitan Police Commissioner by a number of his victims, Green J (as he then was) held that between 2003 and 2008, John Radford had committed more than 105 rapes and sexual assaults whilst working as a taxi driver: D v Commissioner of Police of the Metropolis [2014] EWHC 436 (QB). John Radford was not a party to these proceedings.
In December 2017, 20 months after his tariff expired, the Board directed John Radford's release. DSD and NVB, two of his victims whose allegations had not been considered during John Radford's criminal trial, sought judicial review of the Board's decision on the basis that no account had been taken of the allegations of the prisoner's wider offending. Apart from the High Court civil judgment, by then upheld on appeal, there was a substantial body of material relating to numerous other complaints of sexual assault by John Radford contained in the dossier before the Board. Counsel for the Board in the judicial review proceedings submitted that it was “simply impermissible” for the Board to consider whether John Radford had committed further crimes.
The Divisional Court agreed that “it is not the role of the board to determine a criminal charge”: see R (West) v Parole Board [2003] 1 WLR 705” but rejected “the proposition that evidence of other offending cannot be considered as part and parcel of the global assessment of risk”. Further, noting that section 229(3)(a) of the 2003 Act, which provides for the assessment of ‘dangerousness’ in sentencing specified offences, uses the term “information” as opposed to “evidence”, as does section 239(3)(b), the Divisional Court held that the Board is thereby given “considerable latitude as to the range of information to be considered, subject always to considerations of fairness; see [150] and [151]. This included hearsay evidence which, even if disputed, may not require cross examination of witnesses, “subject to the demands of fairness in the individual case”.
John Radford had not been questioned during his parole hearing on matters relating to whether “his offending (or any inappropriate sexual behaviour short of the commission of the crime)” was confined to the 12 victims. There was material which could be (and implicitly should have been) put to him to test the credibility and reliability of his post-2015 account if only because of the expressed concerns that John Radford was “manipulative, engaged in impression management and for more than six years had been steadfastly maintaining his innocence of any crime”; see [54]. The Board should have undertaken some “basic lines of inquiry…, this material would have provided a sound platform for testing and probing Mr Radford's account, either at a pre-hearing interview by a member of the panel or at the hearing itself. The psychologists would also have been asked to reconsider their assessments in the light of it”; see [160] and [161].
The Guidance
A letter sent on behalf of the SSJ on 19 April 2018 to Governing Governors, Directors of Contracted-Out Prisons and NPS Divisional Directors and headed “The case of John Worboys: Follow-up” made clear the SSJ's decision to review aspects of parole decision making, having specific regard to transparency and communication with victims. In the meantime, following on from the decision in R(D) and to give effect to commitments which the SSJ made to the House of Commons, there were certain actions to be taken. In summary, the SSJ would include “all relevant evidence of past offending”, “every necessary piece of evidence” and “boost the role of the SSJ's representative at the Board's hearings”. In explanation it was said that “offender managers, offender supervisors and psychologists should, when producing risk assessments and reports for offenders where the criminal convictions may not present a comprehensive understanding of an offenders risk, consider carefully whether relevant evidence from untried allegations is available to provide that comprehensive understanding… in cases where there is a relatively large body of complaints which have not resulted in prosecution, report writers should liaise with local police to obtain reports and analyse the contents of those reports to determine whether they contain relevant evidence to put before the Parole Board.”
The Guidance was issued approximately 12 months later. The March 2019 Guidance has no foreword, but it is described in the “Document History” of version 1.1, issued in July 2021, as ‘Guidance and support for members on consideration of allegations made against a prisoner.’ The ‘overview’ in paragraphs 2 and 3 of the Guidance, defines a relevant allegation as one of harmful or risky behaviour which has not been adjudicated upon by a criminal or civil court or prison adjudication and which, if true, could affect the panel's risk analysis.
The amendments made in the revised July 2021 version, are described as “minor clarifications” to reflect the two Divisional Court judgments in Morris and Pearce.
For ease of reference, I set out below what I regard to be the relevant paragraphs of the 2019 Guidance for the purpose of this appeal, showing any amendment made by the 2021 Guidance in bold:
6. Panels faced with information regarding an allegation, will have to assess the relevance and weight of the allegation and either:
a. Choose to disregard it; or,
b. Make a finding of fact; or
c. Make an assessment of the allegation to decide whether and how to take it into account as part of the parole review.”
…
9. Panels faced with a relevant allegation will need to (1) disregard it, or (2) make a finding of fact or...
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