COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE ELIAS
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE WALL
| The Queen on the application of Brooks
|- and -
|The Parole Board
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Kristina Stern (instructed by Treasury Solicitors) for the Respondent
Crown Copyright ©
Lord Justice Kennedy:
(1) On 22nd March 2002, after a birthday party for him at his family home in London, he had been abusive and violent to her during the journey back to Nottinghamshire, and had then raped her five times during the night.
(2) On other occasions he had held her violently against the wall by her neck, and on 21st August 2002 he had punched her whilst she was in the bath causing bruising and a graze to her face.
She said he had ransacked her flat, and taken certain possessions and that she was afraid that if she returned to her home she would again be raped. She was moved to a place of safety.
"The Secretary of State considered that it was necessary to take this action because of information received from the Probation Service that you had ransacked the flat you shared with your partner and son, from which you then took certain possessions. It was also alleged that you had raped your partner, Ms Langhorne, on 5 occasions in March 2002 following an argument and further that on 21 August you had punched her while she was in the bath and on a separate occasion grabbed her around the neck.
These developments indicate to the Secretary of State that your performance on life licence gives substantial cause for concern. Having regard to all the circumstances, particularly the offence for which you were sentenced to life imprisonment, the Secretary of State cannot be satisfied that your continued presence in the community constitutes an acceptable risk."
The claimant was arrested on 24th August 2002, and was returned to custody.
Preparations for hearing by Parole Board.
"In March 2002 Bill and I had a row and Bill raped me. I don't tell lies, and Bill did do this to me. I told the Probation Service because I needed to get help with Bill and his problems, and Bill was taken back to prison. Although Bill did rape me I don't want the police to do anything about it. I really loved Bill, and I don't want this to go any further. I don't want to discuss what happened, and there is no way I will go to court.
I have been told by the police that if I have problems in the future with any of Bill's family then I must contact them. I have made this decision not to go any further with what I told the Probation about what Bill did on my own, and without anyone else's involvement. I told Probation who then went on to contact the police. Bill did rape me, but I cannot speak up against him. I'm going to move away from this area and start again."
That statement seems to have been in accordance with what Shirley Langhorne had said to Sylvia Pettit on 29th August, 2002. On 10th September 2002 solicitors acting for the claimant wrote to the Secretary of State and to the Parole Board secretariat seeking an oral hearing before the Parole Board, and seeking sight of the recall dossier forwarded to the Parole Board. The solicitors also asked for a signed statement to be taken from Shirley Langhorne, and gave notice that "we want the alleged victim and the supervising probation officer to be called as witnesses at the hearing". They said that they took the view that it was the responsibility of the Secretary of State to ensure that they both attended, and asked for the matter to be dealt with expeditiously to comply with the claimant's right under Article 5(4) of the European Convention on Human Rights to have the lawfulness of his detention decided speedily by a judicial body.
"With regards to the alleged victim again, you will need to put this to the Parole Board as it is their responsibility and not the Secretary of State's."
The accuracy of that assertion is a matter which we have had to consider in this case.
"Could you please make sure that all of the above are complied with before the Panel meets. Any problem, please do not to hesitate to contact me."
Rule 7 does not appear to be entirely apposite. It enables a party to apply in writing to call witnesses, and empowers the chairman to rule on such applications. The letter of 20th November 2002 was, it seems, the first formal notification to the Lifer Unit of the hearing date set by the Parole Board. Rule 11(2) envisages at least 3 weeks notice being given to the parties and on 22nd November 2002 the Lifer Unit wrote to the Parole Board secretariat to ask for the hearing date to be deferred for about three weeks to enable the supervising probation officer to prepare a release plan and to attend; to enable Shirley Langhorne to be contacted, and to enable the Secretary of State's representative to attend. The claimant's solicitors at once wrote to the Parole Board on that same day to express strong opposition to the proposed deferral. They had apparently been notified on 30th October that 29th November 2002 was to be the hearing date, and said that they mentioned that date to the case officer at the Lifer Unit on 30th October. The claimant, they said, was "most anxious for his hearing to proceed". Part of the solicitor's letter reads –
"The Home Office has done nothing to substantiate the allegation of rape that is the operative reason for recall, despite having had ample time to do so. All we have at present is hearsay on hearsay in that there is a report by an ACPO which reports what was said to a probation officer by the alleged victim and a subsequent indication by the alleged victim that she wanted to 'withdraw the charges'. … We submit that the burden of proof is on the Secretary of State to establish that Mr Brooks represents more than a minimal risk … despite the time that has elapsed that burden has not been met. In the circumstances Mr Brooks should be entitled to his liberty."
(1) He blamed Shirley Langhorne for 'making him' apply for sickness benefit and self-refer to a counsellor and not tell Sylvia Pettit:
(2) He also blamed Shirley Langhorne for his failure to lock gates at work which cost him his job. He said he had an argument with Shirley Langhorne which he wanted to resolve:
(3) He admitted on one occasion briefly detaining Shirley Langhorne in a neighbour's flat by locking the door, so that he could talk to her on her own:
(4) He said, for the first time, that she had asked him to leave her flat on three or four occasions:
(5) He described her as a 'crazy woman' and 'devious'."
All of that led Shirley Pettit to conclude that he was not taking sufficient responsibility for his behaviour, and instead blaming Shirley Langhorne. The detaining incident was regarded by Sylvia Pettit as a 'classic example' of abusive behaviour in a domestic situation, and what he said after recall was indicative of the claimant not being sufficiently open in licensed supervision. On the positive side Sylvia Pettit observed the claimant to be a very caring and supportive father of his young son, and a hard worker. The claimant behaved well at Leicester Prison after his recall, and was visited there by his ex-wife and their young son. He firmly and repeatedly denied having raped Shirley Langhorne with whom he continued to have some contact by telephone and letter. Some time prior to 26th November 2002 he produced to a probation officer at the prison a letter which he had received from Shirley Langhorne. In that letter she said -
"I will never forgive myself for what I have said about you. I didn't mean to get you locked up."
The letter goes on to indicate that she was jealous of his behaviour towards other women, and to express her love for him and invite him to contact her, but noticeably it does not say that her allegations about him were untrue.
The Hearing on 27th November 2002 and thereafter.
"In this case, because of the very nature of the serious allegations made by you, it is the Parole Board's view that your oral evidence of what occurred is crucial in their determination of whether or not Mr Brooks should remain in custody. However, I should stress that the final decision will lay entirely with the Board. I feel I should also point out that this is not a Court of Law and as such you cannot be compelled to attend the hearing. The final decision must be yours and no pressure will be applied to you.
A date of 20th December 2002 has been set for this hearing and it will take place in the confines of HM Prison Leicester. There will be three members of the Parole Board in attendance, along with a member of the Lifer Unit, who will be acting on behalf of the Secretary of State for the Home Office. Also due to attend, as a witness, will be Sylvia Pettit, Mr Brooks' supervising probation officer, and any other witnesses deemed necessary by the Board. However, I must inform you that Mr Brooks will also be there in person, along with his legal representative, and will be sitting in the same room as yourself while you give evidence.
Whilst I cannot force you to attend, I would urge you to give the matter considerable thought, especially in the light of your serious allegations against William Brooks. If you would like me to explain the procedures involved in an oral hearing or any other queries you may have, I would only be glad to do so and can be contacted on the direct telephone number mentioned above."
"The alleged rape victim to attend as a witness (if possible)"
"Could you please make sure that all of the above are complied with before the Panel meets on 20th December 2002. Any problem, please do not hesitate to contact me …"
The hearings on 20th December 2002 and 6th January 2003.
The Parole Board decision of 10th January 2003.
"The panel has concluded that given your past criminal convictions your behaviour generally towards Ms Langhorne is a cause for concern and is a factor which the panel have taken into account in considering future risk."
In paragraph 9 the Parole Board says it was not satisfied that Shirley Langhorne's flat was ransacked, or that she was punched as well as scratched, but it was satisfied that -
"In general terms there was a loss of contact in the sense that there was a breakdown of trust because you did not disclose the true state of your relationship with your probation officer."
As to the burden and standard of proof the panel's opinion was that there was no burden on either side -
"We had to decide whether, on the evidence as a whole, it was no longer necessary for the protection of the public for you to be confined. For the reasons given above we have concluded that it is necessary that you be confined."
In paragraph 11 the panel said that because of the serious nature of Shirley Langhorne's allegation it had applied what was said by Lord Nicholls in re H and others  AC 563 at 586, namely -
"When assessing the probabilities the court will have in mind as a factor, to what ever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."
The letter of 10th January 2003 is, it will be recalled, the first decision under challenge in these proceedings.
The second decision and the commencement of proceedings.
"The claimant's case is that his right to a fair determination both under Article 5(4) of the European Convention and at common law was violated when the Parole Board considered allegations that the claimant had perpetrated five rapes upon his then partner, on the basis of hearsay evidence, and found those allegations proven."
Statements were subsequently obtained by the defendants from Nikki Penfold at the Lifer Unit, and from Judge Bing. The factual content of those statements is incorporated in the narrative set out above, but three paragraphs from the statement of Judge Bing are worth quoting –
"3. The most significant matter, from the perspective of the present case, is that the Parole Board has no power to require witnesses to attend a Parole Board hearing. The only possible means of compelling a witness to attend a Parole Board hearing is to go to the High Court and ask it to exercise its inherent jurisdiction to require a witness to attend the hearing. I am myself unclear as to how this would operate, but I understand that there has been one occasion in the history of the Parole Board when a prisoner has compelled the witness to attend through the intervention of the High Court.
4. Other than this exceptional course, there is no way in which the Parole Board can itself require a reluctant witness to attend a Parole Board hearing. It is very common, however, that potential witnesses are highly reluctant to attend a Parole Board hearing, particularly in cases concerning recall. As there is no power in the Parole Board to compel attendance, we would not necessarily know the reasons why people refuse to attend. However, it is our understanding that, broadly speaking, the reasons fall into three categories:
a. There are people who are in fear of the prisoner.
b. There are children who are understandably unwilling to attend a Parole Board hearing, particularly, as it generally takes place in a prison establishment.
c. There are ex or current prisoners, or those who have close relationships with a prisoner who do not want to be responsible, and to be seen to be responsible, for putting someone back into prison.
5. Given the circumstances in which recall arises, I do not believe that there can be any presumption that a witness's reluctance to attend a Parole Board hearing stems from any unwillingness to have his or her evidence tested. I am, however, well aware that the fact that a witness's evidence has not been tested under cross-examination will necessarily have a significant effect upon the weight which can be given to the evidence."
Before Elias J.
(1) Without having Shirley Langhorne available for cross-examination it ought not to have permitted the allegation of rape to be made, or supported by hearsay evidence from the probation officers. That was the principal complaint.
(2) That all possible steps should have been taken to ensure the attendance of Shirley Langhorne. The Parole Board itself should have sought a witness summons pursuant to CPR 34.4, or it should have directed one of the parties to do so.
(3) That the evidence before the Board did not justify the conclusions it reached. As the judge pointed out, that was really a rationality challenge.
The judge rejected all three complaints, and the claimant then appealed to this court. The ground of appeal is -
"The appellant appeals the learned judge's order on the ground that he erred in law in that he accorded too much weight to the Board's duty to protect the public, and too little weight to its duty to protect the interests of the appellant. The learned judge erred in not finding that there are some cases, and the appellant's was one such, where the potential harm to the prisoner of a finding based on an allegation contained in hearsay evidence is so great that it should not be considered by the Board without the prisoner having an opportunity to cross-examine its maker."
So, as Mr Fitzgerald QC made clear, the rationality challenge is no longer extant, and the focus is upon the first two alleged errors identified in the court below. Paragraph 1 of the claimant's skeleton argument for this court reads -
"This appeal raises the following issue of public interest: in what circumstances, if any, does the duty to act fairly towards a prisoner detained exclusively on preventative grounds, require that he be afforded the opportunity to test by cross-examination evidence relied upon to justify his detention, such that in the absence of such an opportunity the evidence should not be admitted."
"The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses."
There is no doubt that after 1991 the Parole Board was able to provide the type of hearing that paragraph 60 envisaged, but it does seem to me to be of some significance that what the European Court had in mind, at least as a possibility available to the prisoner, was an oral hearing in the context of an adversarial, not an inquisitorial, procedure.
"In exercising its practical judgment the Board is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause to such injury. In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance the Board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury."
In so far as it is relevant to do so the Parole Board applies the civil standard of proof. It is not determining a criminal charge (see R (West) v Parole Board  1 WLR 705). It is concerned with the assessment of risk, a more than minimal risk of further grave offences being committed in the future, and, as Judge Bing said in the presence case, ultimately the burden of proof has no real part to play. In R(Sim) v Parole Board  EWCA Civ 1845 at paragraph 42 Keene LJ said -
"The concept of a burden of proof is inappropriate where one is involved in risk evaluation."
What the Parole Board must do is to decide in the light of all of the relevant material placed before it whether it is satisfied as envisaged by section 28(6)(b) of the 1997 Act.
"Attention needs to be given in each recall case to what is necessary for its just disposal. A prisoner who does not ask for an oral hearing cannot ordinarily expect one."
"I cannot see that the Strasbourg Jurisprudence in fact adds anything of significance to the test of fair procedure which is required by the common law."
Keene LJ went on to say that at common law there is considerable authority which establishes that it is not necessarily unfair to admit hearsay evidence, even when the deprivation of liberty is at stake, as in R (McKeown) v Wirral MBC  2 Cr App R 12. At paragraph 57 he said -
"Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole Board taking such evidence into account. It should normally be sufficient for the Board to bear in mind that that evidence is hearsay and to reflect that factor in the weight which is attached to it. However, like the judge below, I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination, before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the individual case."
It is those last two sentences upon which Mr Fitzgerald places considerable reliance in this case.
Non attendance of Shirley Langhorne.
(1) Whether more should have been done, and if so by whom, to secure the attendance of Shirley Langhorne to give oral evidence before the Parole Board panel:
(2) Whether, in the absence of Shirley Langhorne, the panel should have excluded entirely from its consideration the evidence of what she had apparently said to the two probation officers and to a police officer about the events of 22nd March 2002:
(3) Whether the panel was right to attach any significance to the view formed by the probation officers as to Shirley Langhorne's credibility."
As to the first of those questions, it seems clear to me that there were shortcomings. In the first place there seems to have been a lack of clear understanding as to whose duty it was to arrange for the attendance of Shirley Langhorne before the panel. In my judgment the position in law is clear. The Secretary of State was required by section 32(4) of the 1997 Act to refer the claimant's case to the Parole Board after his licence was revoked. The claimant's solicitors asked for an oral hearing, and that was agreed. It was then for the parties to decide whether they wished to call any witnesses, or simply to present their cases by reference to documentary material. That is clear from Rule 7 of the Parole Board Rules 1997. The parties were the prisoner and the Secretary of State (see Rule 1). In fact it was the claimant's solicitors who first suggested that Shirley Langhorne should be called, but they did not want to call her. They wanted her called by the Secretary of State, and in so far as it was suggested on behalf of the Secretary of State in the letter of 7th December 2002 that it was for the Parole Board to arrange for Miss Langhorne's attendance that was incorrect. The chairman of the Parole Board panel appointed pursuant to Rule 3 was entitled to give directions pursuant to Rule 9, and those directions could, in my judgment, have included a direction to the Secretary of State to arrange for the attendance of Miss Langhorne, if necessary by obtaining a witness summons pursuant to CPR 34.4. The chairman of the panel does not seem to have been fully alive to that possibility, no doubt because it was virtually virgin territory. On 20th November 2002 he did give directions to the Secretary of State under Rule 9, and included a request (not a direction), said to be given under Rule 7, that Sylvia Pettit and Shirley Langhorne should attend.
Consideration of the allegations made by Shirley Langhorne.
The probation officers' assessment of credibility.
Lord Justice Clarke:
"In addition we were addressed on the standard of proof, having regard to the serious nature of Ms Langhorne's allegation. We took into account the dicta of Lord Nicholls in Re H and Others  AC 563 and we applied the dicta in his speech at pages 586 and 587 in reaching our decision."
"Whilst I cannot force you to attend, I would urge you to give the matter serious thought, especially in the light of your serious allegations against William Brooks."
"In the Claimant's case, at a deferred hearing on 27th November 2002 the Panel directed that Ms Langhorne attend to give evidence. She was contacted and refused to attend the hearing on 20th December. Faced with this refusal, and bearing in mind that the Parole Board had no power to compel her attendance, we took the view that we should proceed in her absence and the Claimant's solicitor agreed to this course."
"However, like the judge below, I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination, before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the individual case."
Lord Justice Wall:
I can envisage the possibility of circumstances where the evidence in question is so fundamental to the decision that fairness requires that the offender be given the opportunity to test it by cross-examination before it is taken into account at all. As so often, what is or is not fair will depend on the circumstances of the individual case.
"(a) the fact that Ms Langhorne did not give evidence before us, and that her allegation could not be tested in cross-examination;
(b) the fact that she did not make a complaint of rape for a period of about five months after the event;
(c) the fact that she knew you had been convicted for rape in the past and therefore a further complaint of rape might be considered to carry credibility;
(d) the fact that she might make a false allegation in order to secure your recall to prison as a means of bringing her relationship with you to an end;
(e) the fact that she telephoned Mr Brooks' solicitor prior to the Parole Board hearing, and was advised how to withdraw the allegation."
"Having taken all these matters into account the panel nevertheless concluded that it was more probable than not that the complaint of rape by Ms Langhorne was true for the following reasons: -
(a) the allegation was consistent with behaviour which was observed by your probation officer, Ms Sylvia Pettit, before she was aware of the rape complaint. On 1st August Ms Pettit reported that you spoke about Ms Langhorne in a dominating and controlling way and that you were unhappy that she was not responsive enough to you sexually;
(b) the occasion of the rape occurred on an occasion when you have admitted there was an argument between you and that you were very angry with her resulting in a decision to sleep in separate bedrooms that night;
(c) the complaint of rape, made by Ms Langhorne in a long interview with a Ms Marion Saddington (who was not previously acquainted with your case) was made in circumstances when Ms Langhorne was visibly frightened, crying and agitated;
(d) the complaint was repeated a few days later on 29th August 2002 to your probation officer Ms Pettit;
(e) Ms Langhorne made a witness statement to the police on 30 August 2002 asserting the truth of the rape incident but asserting also that she would not give evidence against you in court; and
(f) in a subsequent telephone call and in a letter written by Ms Langhorne the allegation of rape has never been withdrawn, although Ms Langhorne stated she still loved you.
In addition to the central and specific allegation of rape the panel heard evidence about what was described generally as concerns about domestic violence. In particular the panel was concerned that Ms Pettit your probation officer was so worried about this matter that she informed the police of 22nd August – the day before Ms Langhorne made the complaint of rape – of her concerns. The report to the police on 22nd August was made following a home visit by Ms Pettit when she noticed a scratch mark to the face of Ms Langhorne. The panel considered this was of particular importance because unlike the allegation of rape which you denied you have admitted being angry with Ms Langhorne when you caused these scratch marks albeit that you stated they were caused accidentally. You have also admitted on the day when the rape is alleged to have occurred that you were violent and pulled her away from a phone box. In your evidence you admitted detaining her on an occasion by locking a door and being angry with her on about a dozen occasions. The panel was concerned that in relation to this behaviour you did not accept you were at fault but instead you gave accounts in evidence which put the blame on Ms. Langhorne for instigating and provoking you to behave in a violent fashion towards her. The panel concurred with the opinion expressed by Ms Pettit in her report dated 25th November 2002 that "Mr. Brooks is not taking sufficient responsibility for his behaviour, but instead tends to blame Ms Langhorne. This with the detaining incident is of course a classic example of abusive behaviour in domestic situations". The panel concluded in general that you do not accept any responsibility for the breakdown of the relationship.